Exhibit 10.1
AMENDED and RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“AGREEMENT”), dated as of November 28, 2007
(the “EFFECTIVE DATE”), by and among US AIRWAYS GROUP, INC., a Delaware corporation (“GROUP”), US
AIRWAYS, INC., a Delaware corporation and a wholly-owned subsidiary of Group (“AIRWAYS”, and,
together with Group, “EMPLOYERS” and individually, an “EMPLOYER”), and W. DOUGLAS PARKER
(“PARKER”).
WHEREAS, Parker is currently serving as Chairman and Chief Executive Officer of Group and
Airways;
WHEREAS, the Employers and Parker initially formalized the terms of the employment
relationship in this Agreement effective February 24, 2004;
WHEREAS, the Employers and Parker desire to amend the Agreement in order to extend the term of
the Agreement as well as to bring the Agreement into compliance with Section 409A of the Internal
Revenue Code of 1986, as amended, and to make certain other changes;
WHEREAS, the Employers and Parker wish to formalize such extension and revisions to the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, the following terms shall have the following respective meanings:
“ACCOUNTING FIRM” shall have the meaning specified in Section 4.6(a).
“ADMINISTRATOR” shall have the meaning specified in Section 6.1.
“ANNUAL AWARD” shall have the meaning specified in Section 3.2.
“ARBITRATORS” shall have the meaning specified in Section 6.1.
“BASE SALARY” shall have the meaning specified in Section 3.1.
“BOARD” shall mean the Board of Directors of Group.
“CEO” shall mean, when used with reference to any Constituent Company, the chief executive
officer of such Constituent Company.
“CHAIRMAN” shall mean, when used with reference to any Constituent Company, the Chairman of
the board of directors of such Constituent Company.
Subject to the terms of Section 7.8(a) below, “CHANGE IN CONTROL” shall occur on the first
date after the Effective Date that any of the following occur:
(i) Within any 12-month period, the individuals who constitute the Board at the beginning of
such period (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board;
provided, however,
that any individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by Group’ stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board; or
(ii) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act), other than the Employers, acquires (directly or indirectly) the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of
the combined voting power of the then outstanding voting securities of Group or Airways entitled to
vote generally in the election of directors (“Voting Power”); or
(iii) Group or Airways shall consummate a merger, consolidation or reorganization of Group or
Airways or any other similar transaction or series of related transactions (collectively, a
“Transaction”) other than (A) a Transaction in which the voting securities of Group or Airways
outstanding immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent corporation immediately
after such Transaction that are owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least 50% of the Voting Power held by the voting
securities of the surviving corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Group or Airways (or similar transaction) in which no person
(excluding Group or Airways or any person who held more than 50% of the Voting Power immediately
prior to such Transaction) acquires more than 50% of the Voting Power; or
(iv) Group or Airways shall sell or otherwise dispose of, or consummate a transaction or
series of related transactions providing for the sale or other disposition of, all or substantially
all of the stock or assets of Airways or shall enter into a plan for the complete liquidation of
either Group or Airways.
“COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
“CODE” shall mean the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder as in effect from time to time.
“CONFIDENTIAL INFORMATION” shall have the meaning specified in Section 5.1(a).
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“CONSTITUENT COMPANIES” shall mean, collectively, Group and Airways and all other direct or
indirect subsidiaries of Group.
“DISABILITY” shall mean a physical or mental condition of Parker that, in the good faith
judgment of not less than a majority of the entire membership of the Board, based upon
certification by a licensed physician reasonably acceptable to Parker and the Board, (i) prevents
Parker from being able to perform the essential functions of the services required under this
Agreement, (ii) has continued for a period of at least six months during any period of twelve
consecutive months and (iii) is expected to continue.
“DISPUTE” shall have the meaning specified in Section 6.1.
“EMPLOYMENT PERIOD” shall mean the period commencing on the Effective Date and ending on the
Expiration Date; provided, however, that if either Group or Parker gives a Notice of Termination
pursuant to Section 4.1 or 4.2, then the Employment Period shall not extend beyond the relevant
Termination Date.
“EXCHANGE ACT” shall mean the Securities Exchange Act of 1934, as amended.
“EXCISE TAX” shall have the meaning specified in Section 4.6.
“EXPIRATION DATE” shall mean December 31, 2011; provided, however, that commencing on January
1, 2011 and on each January 1 thereafter, the Expiration Date shall automatically be extended one
additional year unless, not later than the September 30 prior to such January 1, either party shall
give written notice to the other party that the Expiration Date shall cease to be so extended.
“GROSS-UP PAYMENT” shall have the meaning specified in Section 4.6.
“GOOD REASON” shall mean any of the following actions or failures to act, but in each case
only if it occurs during the Employment Period and then only if it is not consented to by Parker in
writing:
(i) a material diminution by an Employer in the nature or scope of Parker’s applicable titles,
positions, functions, duties or responsibilities described in Section 2.2, including any change
which would alter Parker’s reporting responsibilities described in Section 2.2; provided, however,
that each such alteration shall cease to be a Good Reason on the date that is 180 days after the
occurrence of such alteration unless, prior to such date, Parker gives a Notice of Termination
pursuant to Section 4.1 on account of such alteration;
(ii) the failure of an Employer to perform any of its obligations under this Agreement in any
material regard, including without limitation:
(A) a failure to perform an obligation under Section 3 hereof,
(B) the failure of an Employer to obtain any assumption agreement required by
Section 7.5(a),
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(C) the failure of an Employer to elect or re-elect, or to appoint or
re-appoint, Parker to the applicable offices described in paragraphs (a) or (b) of
Section 2.2, or
(D) the failure of Parker to be elected or appointed, or to be re-elected or
re-appointed, as Chairman of either Employer as contemplated by Section 2.2,
but only if such failure shall continue unremedied for more than 30 days after written notice
detailing such failure is given by Parker to Group;
(iii) the relocation of the principal executive offices of an Employer outside the greater
Phoenix, Arizona metropolitan area or an Employer’s requiring Parker to be based other than at such
principal executive offices; provided, however, that such relocation shall cease to be a Good
Reason on the date that is 180 days after the occurrence of such relocation unless, prior to such
date, Parker gives a Notice of Termination pursuant to Section 4.1 on account of such relocation;
“INCENTIVE EQUITY PLANS” shall mean the America West 1994 Incentive Equity Plan, the America
West 2002 Incentive Equity Plan, and the US Airways Group, Inc. 2005 Equity Incentive Plan, as
amended from time to time, or any successor and future equity-based plans.
“LTIP” shall mean the America West Airlines Performance-Based Award Plan, which became
effective as of January 1, 2003; the US Airways Group, Inc. Performance-Based Award Plan, which
became effective as of November 2, 2005; the US Airways Group, Inc. 2007 Performance-Based Award
Program, which became effective March 26, 2007; or any successor and future long-term cash
incentive programs.
Subject to the terms of Section 7.8(a) below, “MISCONDUCT” shall mean one or more of the
following:
(i) the willful and continued failure by Parker to perform his duties
described in Section 2.2 (other than any such failure resulting from Parker’s
incapacity due to physical or mental illness) after written notice of such failure
has been given to Parker by Group and Parker has had a reasonable period (but not
more than 60 days) after receipt of such notice to correct such failure;
(ii) the willful commission by Parker of any act that is both dishonest and demonstrably
injurious to any Constituent Company (monetarily or otherwise) in any material respect;
(iii) the conviction of Parker for a felony offense involving moral turpitude; or
(iv) a material breach by Parker of any of the covenants set forth in this Agreement (other
than Section 2.2), but only if such breach shall continue unremedied for more than 15 days after
written notice thereof is given to Parker by Group.
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“NOTICE OF TERMINATION” shall mean a notice terminating Parker’s employment in accordance with
Section 4.1 or 4.2.
“PAYMENT” shall have the meaning specified in Section 4.6.
“PERSON” shall mean and include an individual, a partnership, a joint venture, a corporation,
a trust and an unincorporated organization.
“RESTRICTED PERIOD” shall have the meaning specified in Section 5.2(a).
“SECURITIES ACT” shall mean the Securities Act of 1933, as amended.
“TERMINATION” or “TERMINATED” means the termination of Parker’s employment that constitutes a
“separation from service” within the meaning of the default rules of Section 409A of the Code.
“TERMINATION DATE” shall mean either the Termination date specified in a Notice of Termination
delivered in accordance with Section 4.1 or 4.2 or the Expiration Date, as applicable.
“UNDERPAYMENT” shall have the meaning specified in Section 4.6(a).
(a) In this Agreement, unless a clear contrary intention appears, the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision, (ii) reference to any Article or Section means
such Article or Section hereof, (iii) the words “including” (and with correlative meaning
“include”) means including, without limiting the generality of any description preceding such term,
and (iv) where any provision of this Agreement refers to action to be taken by any party, or which
such party is prohibited from taking, such provision shall be applicable whether such action is
taken directly or indirectly by such party.
(b) The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
(c) No provision of this Agreement shall be interpreted or construed against any party solely
because that party or its legal representative drafted such provision.
ARTICLE 2
EMPLOYMENT; TERM; POSITIONS AND DUTIES
Each Employer hereby employs Parker in the executive capacities set forth herein and Parker
hereby accepts employment by each Employer, in each case on the terms and conditions, and for the
consideration, set forth in this Agreement. Parker’s employment
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hereunder shall commence on the Effective Date and shall terminate on the Expiration Date,
unless earlier Terminated as provided in Article 4.
(a) While employed hereunder, Parker shall serve as Chairman and CEO of Group and shall have
and may exercise all of the powers, functions, duties and responsibilities normally attributable to
such positions, including such powers, duties and responsibilities as are set forth with respect to
such positions in the certificate of incorporation and bylaws (as from time to time in effect) of
Group.
(b) While employed hereunder, Parker shall serve as Chairman and CEO of Airways and shall have
and may exercise all of the powers, functions, duties and responsibilities normally attributable to
such position, including such powers, duties and responsibilities as are set forth with respect to
such position in the certificate of incorporation and bylaws (as from time to time in effect) of
Airways.
(c) Parker shall have such additional duties and responsibilities commensurate with the
positions referred to above as from time to time may be reasonably assigned to him by the Board.
(d) While employed hereunder, Parker shall report directly and exclusively to the Board and
shall observe and comply with all lawful policies, directions and instructions of the Board that
are consistent with paragraphs (a), (b) and (c) above. Parker acknowledges and agrees that the
obligation to respond to inquiries and requests made by duly appointed committees of the Board is
within the scope of his responsibilities as Chairman and CEO.
(e) During the Employment Period, the president, the chief operating officer, the chief
financial officer, the chief legal officer, the chief marketing officer, the chief public affairs
officer of each of Airways and Group, respectively, and such other officers as the Board and Parker
shall mutually agree, shall report directly to Parker or to such other executive officer as Parker
may designate.
(f) The Employers agree to use their best efforts to cause Parker to be elected or appointed,
or re-elected or re-appointed, as Chairman of each Employer at all times during the Employment
Period.
(g) While employed hereunder, Parker agrees to devote substantially all of his business time,
attention, skill and efforts to the faithful and efficient performance of his duties hereunder as
Chairman and CEO of Group and as Chairman and CEO of Airways; provided, however, that Parker may
engage in the following activities so long as they do not interfere in any material respect with
the performance of Parker’s duties and responsibilities hereunder: (i) serve on corporate boards or
committees with respect to which the Board shall have given its prior approval, which approval
shall not be unreasonably withheld, (ii) serve on civic or charitable boards or committees, (iii)
engage in community affairs or charitable endeavors, (iv) manage his personal finances, investments
and other matters, and (v) deliver lectures, fulfill speaking engagements or teach on a part-time
basis at educational institutions.
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Parker’s place of employment hereunder shall be at Group’s principal executive offices.
ARTICLE 3
COMPENSATION AND BENEFITS
(a) For services rendered by Parker under this Agreement, Employers shall pay to Parker an
annual cash base salary in the amount of $550,000 (as increased from time to time under paragraph
(b) below, the “BASE SALARY”), effective from and after the Effective Date and for the remainder of
his employment hereunder. The Base Salary shall be payable as earned during the Employment Period
at such time and in such manner consistent with the Employer’s payroll practices for other senior
executives.
(b) The Base Salary shall be reviewed at least annually at such time or times as the salaries
of other senior executives of the Employers as a group are reviewed, and may be increased, but not
decreased, by the Compensation and Human Resources Committee of the Board (or such other committee
as may be appointed by the Board with such authority) at any time or from time to time as such
committee may deem appropriate.
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3.2
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INCENTIVE COMPENSATION AWARDS
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(a) With respect to each full or partial fiscal year occurring during the Employment Period,
beginning with the fiscal year ending December 31, 2007, Parker shall be eligible to receive in
addition to the Base Salary an annual incentive compensation award (the “ANNUAL AWARD”) for
services rendered during such full or partial fiscal year, subject to the terms and conditions of
the Employers’ annual incentive compensation plan as in effect from time to time. The amount of
the Annual Award, if any, with respect to any fiscal year shall be based upon performance targets
and award levels determined, in consultation with Parker, by and in the sole discretion of the
Board, the Compensation and Human Resources Committee or such other committee as may be appointed
by the Board with such authority, in accordance with the Employers’ annual incentive compensation
plan as in effect from time to time; provided, however, that for each fiscal year the target award
levels with respect to Parker shall be established in such a manner as to provide Parker with the
opportunity to earn an Annual Award of at least 80% of his Base Salary, assuming performance at the
target level, and a maximum Annual Award opportunity of 160% of his Base Salary, assuming
performance at an extraordinary level in excess of the target level, for such fiscal year (pro
rated for any partial fiscal year). Annual Awards shall be paid in, and on or before March
15
th
, of the calendar year following the calendar year to which the Annual Award
relates, unless otherwise deferred in accordance with the terms of the Employers’ deferred
compensation plans.
(b) With respect to the LTIP, the parties acknowledge and agree that during the Employment
Period, Parker will participate in each “Performance Cycle” and “Transition Performance Cycle,” as
such terms are defined in the LTIP, that commences under the LTIP at
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the award level applicable to the Chief Executive Officer of Group or Airways, as applicable.
Except as otherwise expressly set forth in this Agreement, the terms of Parker’s awards under the
LTIP will be governed in accordance with the terms of the LTIP, as in effect from time to time.
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3.3
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STOCK INCENTIVE AWARDS
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Parker shall be granted equity-based incentive awards, including stock options, stock
appreciation rights and restricted stock units, commensurate with his status as the most senior
executive officer of the Employers pursuant to the Incentive Equity Plans, at such time or times as
equity-based incentive grants are made to other senior executives of the Employers as a group (but
excluding special grants associated with or attributable to new hires, promotions and other
individual retention decisions). Parker acknowledges that the decision to make such awards to
senior executives of the Employers generally shall be made by and in the sole discretion of the
Compensation and Human Resources Committee, or such other committee as may be appointed by the
Board with such authority.
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3.4
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OTHER INCENTIVE COMPENSATION AND BENEFITS
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In addition to the incentive and equity compensation that Parker becomes entitled to receive
under Sections 3.2 and 3.3 above, Parker shall be granted additional grants of equity compensation
and other annual and long-term incentive compensation, commensurate with his status as the most
senior executive officer of the Employers at such time or times as such awards are made to other
senior executives of the Employers as a group (but excluding special grants associated with or
attributable to new hires, promotions and other individual retention decisions). Parker
acknowledges that the decision to make such grants or awards to senior executives of the Employers
shall be made by and in the sole discretion of the Compensation and Human Resources Committee, or
such other committee as may be appointed by the Board with such authority.
During the Employment Period, Employers agree to maintain, at all times and without premium
cost to Parker, a term life insurance policy on the life of Parker in the amount of $2 million, the
proceeds of which, in the event of Parker’s death, shall be payable to one or more beneficiaries
designated by Parker or, in the absence of any such designation, to his estate. Such policy shall
be issued by a solvent insurance company reasonably acceptable to Parker.
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3.6
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OFFICE SPACE; STAFFING; SERVICES
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During the Employment Period, Employers shall provide Parker with office space, secretarial
and other support staff and administrative services necessary to enable Parker to perform his
duties and responsibilities under this Agreement and as appropriate for a senior executive of
Parker’s status.
Each Employer shall, in accordance with the rules and policies that it may establish from time
to time for senior executives, reimburse Parker (without duplication) for
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business expenses reasonably incurred in the performance of Parker’s duties hereunder. It is
understood that Parker is authorized to incur reasonable business expenses for promoting the
businesses and reputations of the Constituent Companies, including reasonable expenditures for
travel, lodging, meals and client and/or business associate entertainment. Requests for
reimbursement for such expenses must be accompanied by appropriate documentation. Reimbursement
shall be made as soon as practicable after a request for reimbursement is received by an Employer,
but in no event later than the last day of the calendar year next following the calendar year in
which the expense is incurred.
Parker shall be entitled to receive all benefits and other perquisites that may be offered by
the Employers to their senior executives as a group, including, (i) participation in the various
employee benefit plans or programs provided to senior executives of Employers in general (including
life insurance and disability insurance programs), subject to meeting the eligibility requirements
with respect to each of such benefit plans or programs, (ii) tax/financial planning assistance,
(iii) on-line and interline, positive space travel privileges, (iv) participation in Employers’
severance payment policies or plans for executives in general, provided that the form and timing of
any payment of such severance shall be that as set forth herein and not in any other such policy or
plan unless such policy or plan specifically (citing this Section and Section 7.8 hereof) provides
otherwise, and (v) participation in Employers’ retiree medical insurance programs, subject to
meeting the eligibility requirements of such programs. In addition, the Employers shall reimburse
Parker for membership fees and dues for up to two (2) clubs that Parker may choose to join, in his
sole discretion. However, nothing in this Section 3.8 shall be deemed to prohibit Employers from
making any changes in any of the plans, programs or benefits described herein, provided the change
similarly affects all senior executives of Employers.
Reimbursement of club membership fees and dues shall be made as soon as practicable after the
request (accompanied by appropriate documentation) for reimbursement is received by the Employers,
but in no event later than the last day of the calendar year next following the calendar year in
which the fees and dues are incurred. Except as provided in Article 4, the benefits described in
the preceding paragraph shall only be provided during the Employment Period, except with respect to
the benefit described in clause (v), which shall be provided following the expiration of the
Employment Period, subject to the terms of such programs and Parker meeting the eligibility
requirements of such programs.
Group shall pay, or reimburse Parker for, reasonable attorneys’ fees and associated costs
incurred by Parker in connection with the negotiation and execution of this Agreement and in
connection with any amendment to this Agreement during the Employment Period. Reimbursement shall
be made as soon as practicable after a request (accompanied by appropriate documentation) for
reimbursement is received by Group, but in no event later than the last day of the calendar year
next following the calendar year in which the fees and costs are incurred.
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In no event shall Parker be entitled to receive any additional compensation for serving as a
director of any Constituent Company during the Employment Period.
ARTICLE 4
CHANGE IN CONTROL AND TERMINATION OF EMPLOYMENT
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4.1
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TERMINATION BY PARKER
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Parker may, at any time prior to the Expiration Date, terminate his employment hereunder for
any reason by delivering a Notice of Termination to the Board. Any such Notice of Termination
shall specify a Termination Date not less than 30 or more than 60 days after the date such notice
is given; provided, however, that if the Notice of Termination purports to terminate Parker’s
employment for Good Reason, it shall set forth in reasonable detail the reason for such Termination
and the facts and circumstances claimed to provide a basis for such Termination, and shall specify
a Termination Date (subject to any applicable periods during which Group may cure the circumstances
of the alleged Good Reason event) not less than 5 or more than 30 days after the date such notice
is given.
Group may, at any time prior to the Expiration Date, terminate Parker’s employment hereunder
for any reason by delivering a Notice of Termination to Parker; provided, however, that in no event
shall Group be entitled to terminate Parker’s employment hereunder prior to the Expiration Date
unless (i) the Board shall duly adopt, by the affirmative vote of at least a majority of the entire
membership of the Board (other than Parker) at a duly convened meeting at which a quorum is
present, a resolution authorizing such Termination, and (ii) Parker shall have been offered an
opportunity to address the Board at such meeting (or at a prior meeting at which his proposed
Termination is discussed) before any such resolution is finally adopted. Any such Notice of
Termination delivered under this Section 4.2 shall specify a Termination Date, which may be
immediate or may be up to 60 days after the date such notice is given. If the Notice of
Termination purports to terminate Parker’s employment for Misconduct, it shall set forth in
reasonable detail the reason for such Termination and the facts and circumstances claimed to
provide a basis for such Termination, and shall specify as the Termination Date the date such
notice is given (subject to any applicable periods during which Parker may cure the circumstances
of the alleged Misconduct) or any subsequent date up to the date 30 days after the date such notice
is given.
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4.3
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PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC.
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Promptly upon the Termination of Parker’s employment hereunder for any reason, including
Parker’s death, Misconduct or Disability, Employers shall pay to Parker a lump sum amount for (i)
any unpaid Base Salary earned hereunder prior to the Termination Date, (ii) all unused vacation
time accrued by Parker as of the Termination Date in accordance with Employers’ vacation policies
for senior executives, (iii) all unpaid benefits earned by Parker as of the Termination Date under
any and all incentive compensation plans or programs of
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Employers, (iv) all amounts owing to Parker under Section 3.7 and (v) any additional amounts
or benefits which may be required to be paid in a lump sum by applicable law or under the terms of
the applicable plans. Amounts described in clauses (i), (ii) and (iv) above shall be paid in a
lump sum within 30 days following Parker’s Termination Date. Amounts described in clauses (iii)
and (v) above shall be paid in accordance with Section 4.4(g) hereof.
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4.4
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OTHER TERMINATION BENEFITS AND PRIVILEGES
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The following provisions shall apply to (i) any Termination by Parker of his employment
hereunder for any reason within 24 months following the date of a Change in Control, (ii) any
Termination by Parker of his employment hereunder for Good Reason, (iii) any Termination by Group
of Parker’s employment hereunder for any reason other than Parker’s Misconduct, (iv) any
Termination of Parker’s employment hereunder upon the Expiration Date following the delivery to
Parker by an Employer of written notice that the Expiration Date will not be extended, (v) any
Termination of Parker’s employment hereunder on account of his Disability, or (vi) any Termination
of Parker’s employment hereunder on account of his death:
(a) SEVERANCE PAYMENT. In the event the Termination is described in clause (i), (ii) or (iii)
above, Employers shall pay to Parker a severance payment (in cash or other immediately available
funds) in an amount equal to two times the sum of (A) Parker’s current Base Salary plus (B) the
greater of (I) the average Annual Award paid or payable to Parker with respect to the three
calendar years ending immediately prior to the year in which the Termination Date occurs and (II)
the target level Annual Award for the year in which the Termination Date occurs. In the event the
Termination is described in clause (iv) or (v) above, Employers promptly shall pay to Parker a
severance payment (in cash or other immediately available funds) in an amount equal to the sum of
(A) Parker’s current Base Salary plus (B) the greater of (I) the average Annual Award paid or
payable to Parker with respect to the three calendar years ending immediately prior to the year in
which the Termination Date occurs and (II) the target level Annual Award for the year in which the
Termination Date occurs. In the event the Termination is described in clause (vi) above, no
severance payment will be payable. All severance payments shall be paid as provided in paragraph
(g) below.
(b) STOCK OPTIONS, STOCK APPRECIATION RIGHTS ETC. In the event the Termination is described
in clause (i), (ii), (iii), (v) or (vi) above, all outstanding stock options, stock appreciation
rights, restricted stock units and other awards, including, without limitation, any long term
incentive awards, held by Parker pursuant to the provisions of the Incentive Equity Plans and any
other plan in which Parker participates pursuant to Section 3.4 shall become immediately vested and
exercisable as of the Termination Date (except, in connection with awards made after the Effective
Date, as otherwise expressly accepted or agreed by Parker with respect to any specific award after
consultation between Parker and Employers regarding any such terms, which consultation shall be
acknowledged in writing on the signature page of the applicable award agreement). Where
applicable, all such awards shall remain exercisable for a period of 36 months from the Termination
Date, or such longer period as may apply under the terms of any specific grant, plan or any other
agreement with Parker, but in no case shall the exercise period extend later than the earlier of
the original expiration date of the award or ten years from the original date of grant. In the
event the Termination is described in clause (iv) above, is due to Parker’s Misconduct, or the
Termination is described in Section 4.1
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other than a Termination described in clause (i) or (ii) above, Parker shall retain all vested
stock options, stock appreciation rights, restricted stock units and other awards held by him as of
the Termination Date pursuant to the provisions of the Incentive Equity Plans and any other plan to
which an award is subject, in accordance with the terms of each specific grant, but without any
accelerated vesting, extension of the period of exercisability or other modification.
(c) LONG TERM INCENTIVE PLAN. In the event the Termination is described in clause (i), (ii)
or (iii) above, in settlement of the Employers’ obligations under the LTIP, the Employers shall pay
Parker a cash amount equal to two times the greater of (i) 125% of his Base Salary and (ii) the
amount that would have been paid to Parker had the Total Stockholder Return (as defined in the
LTIP) for the Performance Cycle (as defined in the LTIP) ending on the December 31 of the year in
which the Termination occurs (or the next December 31, if no such Performance Cycle ends in such
year) been measured as of the Termination Date. In the event the Termination is described in
clause (iv), (v) or (vi), then such Termination shall be considered Termination of an LTIP
participant’s employment with the Employers on account of retirement, total disability or death
(regardless of Parker’s age at the time), and Parker’s rights under the LTIP will be governed by
the terms of the plan accordingly. In the event the Termination is described in clause (i), (ii),
(iii), (iv) or (v) above, the payment shall be paid as provided in paragraph (g) below. In the
event the Termination is described in clause (vi), the payment shall be paid as provided in the
LTIP.
(d) MEDICAL INSURANCE. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4, during the 24-month period following the Termination Date, each
Employer shall make available to Parker and Parker’s eligible dependents, at Parker’s cost (in an
amount equal to the COBRA premium cost therefor), all benefits available to Parker and Parker’s
eligible dependents under all medical plans and programs of such Employer (which shall be
concurrent with any health care continuation benefits to which Parker or his eligible dependents
are entitled to under COBRA). The Employers shall pay to Parker a lump sum cash amount equivalent
to twenty-four (24) times the difference between (i) the then monthly cost of COBRA continuation
coverage premiums for Parker and his eligible dependents and (ii) the then monthly contribution for
such coverage required of regular active employees, plus an amount such that Parker shall have no
after-tax cost for such payment or the gross-up thereof.
Notwithstanding the foregoing, if for any reason continued participation by Parker (or his
eligible dependents) in any such plan or program after the Termination Date is impermissible under
applicable law, or in the event an Employer shall terminate any such plan or program prior to the
end of such 24-month period of continued coverage and does not establish a substantially comparable
plan or program which Parker (or his eligible dependents) are eligible to participate in, such
Employer shall obtain for Parker (or his eligible dependents) substantially comparable coverage
under individual policies.
(e) LIFE INSURANCE. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4 (other than a Termination on account of Parker’s death), during the
24-month period following the Termination Date, each Employer, at its cost, shall continue to
provide Parker all life insurance coverages (and in the same amounts) provided
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to him by an Employer immediately prior to the date on which the relevant Notice of
Termination is given in accordance with this Article 4.
(f) TRAVEL PRIVILEGES. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4, each Employer shall provide Parker (and his wife and dependents)
on-line and interline, positive space travel privileges for their lifetimes in accordance with the
terms of its non-revenue travel policy for senior executives as in effect on the Effective Date;
provided, however, that the travel privileges to be provided to Parker (and his wife and
dependents) by each Employer under this paragraph (e) shall be at least as favorable to Parker (and
his wife and dependents) as the travel privileges generally provided to the senior executives of
such Employer from time to time. These travel privileges shall commence on the first day of the
seventh month following the Termination if Parker is a “specified employee” within the meaning of
Section 409A of the Code on the date of his Termination, or upon Parker’s death, if earlier. In
addition, each Employer shall reimburse Parker (or his legal representative, if applicable) for the
full amount of any payments by Parker for travel on the Employer during the period from the
Termination until the earlier of the first day of the seventh month following the Termination or
the date of his death. Parker (or his legal representative, if applicable) shall submit a request
for reimbursement on the first day of the eighth month following the Termination or, in the case of
Parker’s death prior to the first day of the seventh month following his Termination, on the first
day of the month following his date of death. Reimbursement shall be made 30 days after Parker
submits the request for reimbursement.
(g) TIMING OF PAYMENTS. The parties anticipate that Parker will be a “specified employee” as
defined in Section 409A of the Code on his Termination Date. The determination of whether Parker
is a specified employee shall be made in accordance with the Employers’ established methodology for
determining specified employees. In the event that Parker is a specified employee at his
Termination and the Termination is described in clause (i), (ii), (iii), (iv), or (v) above, any
amount due under paragraphs (a), (c) or (d) of this Section 4.4 shall be paid in a lump sum payment
on the first business day that is more than six months after the Termination, or if earlier, on the
date that is thirty days after Parker’s death. In the event that Parker is not a specified
employee at the Termination and the Termination is described in clause (i), (ii), (iii), (iv), or
(v) above, any amount due under paragraphs (a), (c) or (d) above shall be paid in a lump sum
payment fifty-three (53) days after the Termination. In addition to the foregoing, to the extent
required by Section 409A(a)(2)(B) of the Code, the payment of any compensation to Parker under this
Agreement shall be suspended for a period of six months commencing at such time that Parker, prior
to the occurrence of a Disability termination as provided in Section 4.4 hereof, shall be deemed to
have had a “separation from service” within the meaning of Section 409A of the Code because either
(A) a sick leaves ceases to be a bona fide sick leave of absence or (B) the permitted time period
for a sick leave of absence expires (an “SFS DISABILITY”) without regard to whether such SFS
Disability actually results in a Disability termination. In the event the Termination is described
in clause (vi) above, any amount due under paragraphs (c) or (d) above shall be paid in a lump sum
payment fifty-three (53) days after the Termination.
If payment of an amount is delayed for six months as a result of this Section 4.4(g), such
delayed amount (the “CATCH-UP AMOUNT”) shall be increased with interest from the date on which such
amount would otherwise have been paid to Parker but for
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this Section 4.4(g) to the day prior to the date the Catch-up Amount is paid. The rate of
interest shall be the short term federal rate applicable under Section 7872(f)(2)(A) of the Code
for the month in which occurs Parker’s Termination Date. Such interest shall be paid at the same
time that the Catch-up Amount is paid. If Parker dies on or after the his Termination Date and
prior to the payment of the Catch-up Amount, any amount delayed pursuant to this Section 4.4(g)
shall be paid to Parker’s estate or beneficiary, as the case may be, together with interest, within
30 days following the date of Parker’s death. Notwithstanding the foregoing, neither the Employers
nor any of their employees or representatives shall have any liability to Parker with respect to
the application of this Section 4.4(g).
With regard to any provision herein that provides for reimbursement of expenses or in-kind
benefits, except as permitted by Section 409A of the Code, (i) the right to reimbursement or
in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount
of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall
not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other taxable year,
provided
that the foregoing clause (ii) shall not be violated with
regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely
because such expenses are subject to a limit related to the period the arrangement is in effect.
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4.5
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RESIGNATION AS A DIRECTOR
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If Parker’s employment under this Agreement is Terminated for any reason, Parker agrees, if
requested by the Board, to resign as a director of all Constituent Companies of which he is a
director, such resignation to be effective immediately or at such later time as the Board shall
request.
Anything in this Agreement to the contrary notwithstanding and except as set forth below, in
the event it shall be determined that any payment or distribution by an Employer to or for the
benefit of Parker (whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, but determined without regard to any additional payments required
under this Section 4.6) (a “PAYMENT”) would be subject to the excise tax imposed by Section 4999 of
the Code, or any interest or penalties are incurred by Parker with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter collectively referred to
as the “EXCISE TAX”), then Parker shall be entitled to receive an additional payment (a “GROSS-UP
PAYMENT”) in an amount such that after payment by Parker of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Parker
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(a) CALCULATION. Subject to the provisions of Section 4.6(b) below, all determinations
required to be made under this Section 4.6, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at
such determination, shall be made by the independent auditors most
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recently engaged by Group to conduct an independent audit of Group’s financial statements or
such other certified public accounting firm reasonably acceptable to Parker as may be designated by
Group (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to Parker
and Group within 15 business days of the receipt of notice from Parker that there has been a
Payment, or such earlier time as is requested by Group. All fees and expenses of the Accounting
Firm shall be borne solely by Group. Any Gross-Up Payment, as determined pursuant to this Section
4.6, shall be paid by Group to or for the benefit of Parker within 5 days of the later of (i) the
due date for the payment of any Excise Tax and (ii) the receipt of the Accounting Firm’s
determination, but no later than December 31 of the year following the year in which Parker pays
the Excise Tax. Any determination by the Accounting Firm shall be binding upon Parker and Group
unless substantial authority under the Code exists to the contrary or a ruling is obtained from the
Internal Revenue Service supporting a contrary view. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which shall not have been made by Group
should have been made (“UNDERPAYMENT”), consistent with the calculations required to be made
hereunder. In the event that Group exhausts its remedies pursuant to Section 4.6(b) and Parker or
Group thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by Group to Parker or for Parker’s benefit within the above timeframe. The previous
sentence shall apply mutatis mutandis to any overpayment of a Gross-Up Payment.
(b) COOPERATION. Parker shall notify Group in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by Group of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than 30 business days after Parker
is informed in writing of such claim, and shall apprise Group of the nature of such claim and the
date on which such claim is required to be paid. Parker shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice to Group (or such
shorter period ending on the date that any payment of taxes with respect to such claim is due). If
Group notifies Parker in writing prior to the expiration of such period that it desires to contest
such claim, Parker will:
(i) give Group any information reasonably requested by Group relating to such claim,
(ii) take such action in connection with contesting such claim as Group shall reasonably
request in writing from time to time, including accepting legal representation with respect to such
claim by an attorney reasonably selected by Group,
(iii) cooperate with Group in good faith in order effectively to contest such claim, and
(iv) permit Group to participate in any proceeding relating to such claim.
Group shall bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold Parker
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harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 4.6(b), Group shall control all
proceedings taken in connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct Parker to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and Parker agrees to prosecute
such contest to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as Group shall determine; provided, however, that
if Group directs Parker to pay such claim and sue for a refund, Group shall advance the amount of
such payment to Parker, on an interest-free basis, and shall indemnify and hold Parker harmless, on
an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed income with respect to
such advance; and provided further, however, that any extension of the statute of limitations
relating to payment of taxes for Parker’s taxable year with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Furthermore, Group’s control of
the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and Parker shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority. Any payment to Parker
required under this paragraph (b) shall be made no later than December 31 of the year following the
year in which Parker pays any Excise Tax, income tax, penalty or interest; provided, however, that
if Group requires Parker to contest the claim without first paying the Excise Tax, any Gross-Up
Payment or reimbursement by Group of expenses incurred by Parker in connection with a litigation
proceeding relating to the Excise Tax, as provided for in this paragraph (b), shall be paid no
later than the last day of the calendar year following the calendar year in which Parker remitted
the Excise Tax or, if no Excise Tax is paid, the end of the calendar year following the calendar
year in which there is a final and nonappealable settlement or other resolution of the litigation.
(c) ADJUSTMENTS. If, after the receipt by Parker of an amount advanced by Group pursuant to
this Section 4.6, Parker becomes entitled to receive any refund with respect to such claim, Parker
shall (subject to Group’s complying with the requirements of Section 4.6(b)) promptly pay to Group
the amount of such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Parker of an amount advanced by Group pursuant to
this Section 4.6, a determination is made that Parker shall not be entitled to any refund with
respect to such claim and Group does not notify Parker in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
4.7 RELEASE PRIOR TO PAYMENT OF BENEFITS. In order to be eligible to receive benefits under
this Agreement (other than amounts due under Sections 4.3 or 4.6 hereof), Parker must execute a
general waiver and release in substantially the form attached hereto as Exhibit A or Exhibit B, as
appropriate, within forty-five (45) days of such Termination and not revoke such release prior to
the expiration of the revocation period provided for in such release. Subject to the foregoing,
the Employer shall determine the form of the required release, which
16
may be incorporated into a termination agreement or other agreement with Parker, and may
modify the form of the required release to comply with applicable federal or state law.
ARTICLE 5
CONFIDENTIAL INFORMATION, NON-INTERFERENCE
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5.1
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CONFIDENTIAL INFORMATION
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(a) Parker recognizes that the services to be performed by him hereunder are special, unique
and extraordinary and that, by reason of his employment with Employers and the positions described
in paragraphs (a) and (b) of Section 2.2, he may acquire Confidential Information (defined below)
concerning one or more of the Constituent Companies, the use or disclosure of which would cause the
Constituent Companies substantial loss and damages which could not be readily calculated and for
which no remedy at law would be adequate. Accordingly, Parker agrees that he will not (directly or
indirectly) at any time, whether during or after his employment hereunder, disclose any such
Confidential Information to any Person except (i) in the performance of his obligations to the
Constituent Companies hereunder, (ii) as required by applicable law, (iii) in order to enforce his
rights under this Agreement, (iv) in connection with any litigation (pending or threatened) that is
the subject of Section 6 hereof or (v) with the prior written consent of the Board. As used
herein, “CONFIDENTIAL INFORMATION” includes information with respect to the services, strategies,
facilities and methods, research and development, trade secrets and other intellectual property,
pricing and revenue management systems, patents and patent applications, procedures, manuals,
confidential reports, financial information, business plans, prospects or opportunities of any
Constituent Company; provided, however, that such term shall not include any information that (x)
is or becomes generally known or available other than as a result of a disclosure by Parker or (y)
is or becomes known or available to Parker on a nonconfidential basis from a source (other than
Employers) which, to Parker’s knowledge, is not prohibited from disclosing such information to
Parker by a legal, contractual, fiduciary or other obligation to any Constituent Company.
(b) Parker confirms that all Confidential Information is the exclusive property of the
relevant Constituent Company. All business records, papers and documents kept or made by Parker
(whether electronically or otherwise) while employed by any Constituent Company relating to the
business of any Constituent Company shall be and remain the property of such Constituent Company at
all times. Upon the request of Group at any time, Parker shall promptly deliver to Group, and
shall retain no copies of, any electronic media or written materials, records and documents made by
Parker or coming into his possession while employed by any Constituent Company concerning the
business or affairs of any Constituent Company other than personal materials, records and documents
(including notes and correspondence) of Parker not containing information relating to such business
or affairs. Notwithstanding the foregoing, Parker shall be permitted to retain copies of, or have
access to, all such materials, records and documents as may be necessary in order to enforce his
rights under this Agreement or in connection with any litigation (pending or threatened) that is
the subject of Section 6 hereof.
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(a) During the period beginning on the Effective Date and continuing for six months following
the Termination Date (the “RESTRICTED PERIOD”), Parker shall not, whether for his own account or
for the account of any other Person (excluding Group), intentionally solicit, endeavor to entice or
induce any employee of any Constituent Company to terminate his employment with such Constituent
Company or accept employment with anyone else; provided, however, that this Section 5.2 shall not
apply to Parker’s personal secretary.
(b) If any provision of this Section 5.2 relating to the Restricted Period and/or the areas of
restriction shall be declared by an arbitrator pursuant to Article 6 or a court of competent
jurisdiction to exceed the maximum time period or areas such arbitrator or court deems reasonable
and enforceable, the Restricted Period and/or areas of restriction deemed reasonable and
enforceable by such arbitrator or court shall become and thereafter be the maximum time period
and/or areas.
Parker acknowledges that a breach of any of the covenants contained in this Article 5 may
result in material irreparable injury to the Constituent Companies for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries precisely and
that, in the event of such a breach and the Constituent Companies (or any of them) shall be
entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction
restraining Parker from engaging in activities prohibited by this Article 5 or such other relief as
may required to specifically enforce any of the covenants contained in this Article 5. Parker
agrees to and hereby does submit to in personam jurisdiction before each and every such court for
that purpose.
ARTICLE 6
DISPUTE RESOLUTION
Any claim, dispute, or controversy of whatever nature arising out of or relating to this
Agreement (including any other agreement(s) contemplated hereunder), including any action or claim
based on tort, contract, or statute (including any claims of breach or violation of statutory or
common law protections from discrimination, harassment and hostile working environment), or
concerning the interpretation, effect, termination, validity, performance and/or breach of this
Agreement (a “DISPUTE”), shall to the fullest extent permitted by law be resolved by final and
binding arbitration before a panel of three arbitrators (“ARBITRATORS”) selected from and
administered by JAMS (the “ADMINISTRATOR”) in accordance with its then existing Comprehensive
Arbitration Rules & Procedures, except with respect to the selection of such Arbitrators which
shall be made in accordance with Section 6.3 below. The arbitration hearing shall be held in
Maricopa County, Arizona.
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6.2
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PRELIMINARY REQUIREMENTS
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Before commencing the above-referenced JAMS arbitration, the parties shall first make a good
faith attempt to resolve a Dispute through their management. In the event such good faith
negotiation fails to settle a Dispute within 30 days from notice of such Dispute, the parties shall
endeavor to resolve the Dispute by mediation through JAMS. If the Dispute has not been resolved
pursuant to the JAMS mediation within 30 days of the request for mediation, the Dispute shall be
submitted to the JAMS arbitration process described herein.
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6.3
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CHOICE OF ARBITRATORS
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The choice of Arbitrators shall be made as follows. Parker shall choose one independent
Arbitrator and Group shall choose one independent Arbitrator. The two Arbitrators so chosen will
choose the third Arbitrator, who must be independent with excellent academic and professional
credentials, with experience in the subject matter of the Dispute and who has had both training and
at least five years experience as an arbitrator.
(a) Any issue as to whether or the extent to which the Dispute is subject to the arbitration,
including, but not limited to, issues relating to the validity or enforceability of this Article 6,
the applicability of any statute of limitations or other defense relating to the timeliness of the
assertion of any claim or any other matter relating to the arbitrability of such claim, shall be
decided by the Arbitrators.
(b) The Arbitrators shall be authorized to award compensatory damages, but shall not be
authorized (i) to award non-economic damages, such as for emotional distress, pain and suffering,
or loss of consortium, (ii) to award punitive damages, or (iii) to reform, modify or materially
change this Agreement or any other agreements contemplated hereunder; provided, however, that the
damage limitations described in parts (i) and (ii) of this sentence will not apply if such damages
are statutorily imposed. The Arbitrators also shall be authorized to grant any temporary,
preliminary or permanent equitable remedy or relief he or she deems just and equitable and within
the scope of this Agreement, including, without limitation, an injunction or order for specific
performance.
(c) Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the
arbitration; however, the Arbitrators shall be authorized to determine whether a party is the
prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable
attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses,
photocopy charges, travel expenses, etc.). Group shall pay the costs of the arbitration, including
the cost of the Arbitrators themselves.
(d) The Arbitrators shall render their decision in writing and, unless both parties agree
otherwise, shall include an explanation of the reasons for the award, which explanation shall be
limited to the extent necessary to support the award and need not attempt to cover all issues
raised by the parties.
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(e) The arbitration shall be governed by the substantive laws of the State of Arizona
applicable to contracts made and to be performed therein, without regard to conflicts of law rules.
The Arbitrators shall have no power or authority to order or grant any remedy or relief that a
court could not order or grant under applicable law.
Judgment upon the award rendered by the Arbitrators may be entered in any court having
jurisdiction thereof. These arbitration provisions may be enforced by any court of competent
jurisdiction, and the party seeking enforcement shall be entitled to all costs and expenses,
including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.
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6.6
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CERTAIN COURT ACTIONS PERMITTED
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Notwithstanding the foregoing, this Article 6 will not preclude either party from pursuing a
court action for the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate (including as contemplated by
Section 5.4), provided that any other relief will be pursued through an arbitration proceeding
pursuant to this Article 6. For purposes of this Section 6.6, each party hereto irrevocably and
unconditionally:
(a) agrees that any suit, action or other legal proceeding arising out of this Agreement
(other than as contemplated by Section 5.4) shall only be brought in the United States District
Court for the District of the State of Arizona or, if such court does not have jurisdiction or will
not accept jurisdiction, then only in the Superior Court of the State of Arizona,
(b) consents to the jurisdiction of any such court in any such suit, action or proceeding, and
(c) waives any objection which such party may have to the laying of venue of any such suit,
action or proceeding in any such court.
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6.7
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WAIVER OF CERTAIN RIGHTS AND PROTECTIONS
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BY AGREEING TO THIS BINDING ARTICLE 6, THE PARTIES UNDERSTAND THAT THEY ARE WAIVING CERTAIN
RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A DISPUTE WERE DETERMINED BY LITIGATION
IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES
PRECLUDED BY THIS ARTICLE 6, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF DISCOVERY AND APPEAL, AND
A RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE.
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ARTICLE 7
MISCELLANEOUS
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7.1
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NO MITIGATION OR SET OFF
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The provisions of this Agreement are not intended to, nor shall they be construed to, require
that Parker mitigate the amount of any payment provided for in this Agreement by seeking or
accepting other employment, nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by Parker as the result of employment by another employer or
otherwise. Without limitation of the foregoing, Employers’ obligations to make the payments to
Parker required under this Agreement and otherwise to perform their obligations hereunder shall not
be affected by any set off, counterclaim, recoupment, defense or other claim, right or action that
either an may have against Parker.
The obligations of Parker hereunder are personal and may not be assigned or delegated by
Parker or transferred in any manner whatsoever, nor are such obligations subject to involuntary
alienation, assignment or transfer. Each Employer shall have the right to assign this Agreement
and to delegate all its rights, duties and obligations hereunder as provided in Section 7.5.
All notices and all other communications provided for in the Agreement shall be in writing and
shall be sent, delivered or mailed, addressed as follows: (i) if to Employers (or any of them), at
Group principal office address or such other address as Group may have designated by written notice
to Parker for purposes hereof, directed to the attention of the Board with a copy to the Secretary
of Group and (ii) if to Parker, at his residence address on the records of Group or to such other
address as he may have designated to Group in writing for purposes hereof. Each such notice or
other communication shall be deemed to have been duly given when delivered in person, by facsimile
or by United States registered mail, return receipt requested, postage prepaid, except that any
notice of change of address shall be effective only upon receipt.
The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall remain in full
force and effect.
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7.5
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SUCCESSORS; BINDING AGREEMENT
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(a) Each Employer will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of such
Employer, by agreement in form and substance reasonably acceptable to Parker, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that such Employer
would be required to perform it if no such succession had taken place.
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Failure of such Employer to obtain such agreement prior to the effectiveness of any such
succession shall be a material breach of this Agreement. As used herein, (i) the term “Group”
shall include any successor to its business and/or assets as aforesaid which executes and delivers
the Agreement provided for in this Section 7.5 or which otherwise becomes bound by all terms and
provisions of this Agreement by operation of law and (ii) the term “Airways” shall include any
successor to its business and/or assets as aforesaid which executes and delivers the Agreement
provided for in this Section 7.5 or which otherwise becomes bound by all terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of Parker hereunder shall inure to the benefit of and be
enforceable by Parker’s personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If Parker should die while any amounts would be
payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to Parker’s devisee, legatee,
or other designee or, if there be no such designee, to Parker’s estate.
(c) This Agreement and all rights of the Constituent Companies hereunder shall inure to the
benefit of and be enforceable by the Constituent Companies and their respective successors and
assigns.
Each Employer shall withhold from all payments hereunder all applicable taxes (federal, state
or other) that it is required to withhold therefrom unless Parker has otherwise paid to such
Employer the amount of such taxes.
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7.7
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AMENDMENTS AND WAIVERS
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No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Parker and the Employer or
Employers that shall be bound by such modification, waiver or discharge. No waiver by any party
hereto at any time of any breach by any other party hereto of, or in compliance with, any condition
or provision of this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
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7.8
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NO DUPLICATE SEVERANCE; ENTIRE AGREEMENT
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(a) Notwithstanding any term to the contrary in this Agreement, in the event Parker shall
become entitled to receive a severance payment pursuant to Section 4.4(a) above under circumstances
which also entitle him to receive another severance payment under any severance policy or plan of
an Employer, then the other severance payment due to Parker pursuant to such policy or plan
automatically shall be reduced by the amount of the severance payment paid or payable under Section
4.4(a) (but shall not be reduced by the amount of any Gross-Up Payment paid or payable under
Section 4.6).
(b) The parties acknowledge, confirm and agree that, except as expressly provided herein, this
Agreement represents the entire agreement of the parties, and no agreement
22
or representations, oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by any party which are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this agreement shall be governed
by the laws of the state of New York without regard to its conflict of laws provision.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original but all of which together will constitute one and the same instrument.
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7.11
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INDEMNIFICATION; LIABILITY INSURANCE
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Parker shall be indemnified by the Employers to the full extent permitted by law and in
accordance with the Employers’ policies applicable to other senior executives and directors. In
the event Group maintains directors and officers liability insurance, Parker will be insured under
such policies during the Employment Period at a level commensurate with those applicable to other
senior executives and directors of Group. Without Parker’s prior written consent, no Employer
shall amend, modify or repeal any provision of its certificate of incorporation or bylaws if such
amendment, modification or repeal would materially adversely affect Parker’s rights to
indemnification by such Employer.
No right, power or remedy granted under this Agreement is intended to be exclusive, but each
shall be cumulative and in addition to any other rights, powers or remedies referred to in this
Agreement or otherwise available at law or in equity.
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7.13
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JOINT AND SEVERAL LIABILITY
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The obligations of Employers hereunder shall be joint and several.
23
IN WITNESS WHEREOF, the parties have executed this Agreement on November 28, 2007 but
effective for all purposes (except as herein otherwise expressly provided) as of the date first
above written.
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US AIRWAYS GROUP, INC.
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By:
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W. DOUGLAS PARKER
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Name:
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Herbert M. Baum
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Title:
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Director and Chairman of the
Compensation and Human Resources
Committee
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US AIRWAYS, INC.
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By:
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Name:
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Herbert M. Baum
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Title:
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Director and Chairman of the
Compensation and Human Resources
Committee
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Exhibit A: Release (Individual Termination — Age 40 or Older)
Exhibit B: Release (Group Termination —Age 40 or Older)
24
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
In consideration of the benefits I will receive under this Agreement dated __________,
20___, to which I would not otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Employer, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Employer), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Employer or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Employer, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA and that the consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8
th
) day after I
execute this Release.
25
Exhibit B
RELEASE
(
Group Termination — Age 40 or Older)
In consideration of the benefits I will receive under this Agreement dated _________,
20___, to which I would not otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Employer, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Employers), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Employer or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Employer, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA and that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing, as required by the ADEA, that:
(A) my waiver and release do not apply to any rights or claims that may arise on or after the date
I execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day (8th) after I execute this
Release; and (F) I have received with this Release an attachment that contains certain demographic
information required by ADEA.
26
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND INTERPRETATIONS
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1
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1.1
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DEFINITIONS
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1
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1.2
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INTERPRETATIONS
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5
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ARTICLE 2 EMPLOYMENT; TERM; POSITIONS AND DUTIES
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5
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2.1
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EMPLOYMENT; TERM
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5
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2.2
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POSITIONS AND DUTIES
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6
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2.3
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PLACE OF EMPLOYMENT
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7
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ARTICLE 3 COMPENSATION AND BENEFITS
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7
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3.1
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BASE SALARY
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7
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3.2
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INCENTIVE COMPENSATION AWARDS
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7
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3.3
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STOCK INCENTIVE AWARDS
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8
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3.4
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OTHER INCENTIVE COMPENSATION AND BENEFITS
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8
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3.5
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LIFE INSURANCE
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8
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3.6
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OFFICE SPACE; STAFFING; SERVICES
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8
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3.7
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BUSINESS EXPENSES
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8
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3.8
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OTHER BENEFITS
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9
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3.9
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ATTORNEYS' FEES
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9
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3.10
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NO DIRECTOR FEES
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10
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ARTICLE 4 CHANGE IN CONTROL AND TERMINATION OF EMPLOYMENT
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10
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4.1
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TERMINATION BY PARKER
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10
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4.2
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TERMINATION BY GROUP
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10
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4.3
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PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC.
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10
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4.4
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OTHER TERMINATION BENEFITS AND PRIVILEGES
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11
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4.5
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RESIGNATION AS A DIRECTOR
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14
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4.6
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CERTAIN TAX MATTERS
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14
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4.7
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RELEASE PRIOR TO PAYMENT OF BENEFITS
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16
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ARTICLE 5 CONFIDENTIAL INFORMATION, NON-INTERFERENCE
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17
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5.1
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CONFIDENTIAL INFORMATION
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17
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5.2
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NON-INTERFERENCE
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18
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5.3
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INJUNCTIVE RELIEF
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18
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-i-
TABLE OF CONTENTS
(continued)
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Page
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ARTICLE 6 DISPUTE RESOLUTION
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18
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6.1
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GENERAL
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18
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6.2
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PRELIMINARY REQUIREMENTS
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19
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6.3
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CHOICE OF ARBITRATORS
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19
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6.4
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ARBITRATION; RULES
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19
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6.5
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ENFORCEMENT
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20
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6.6
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CERTAIN COURT ACTIONS PERMITTED
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20
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6.7
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WAIVER OF CERTAIN RIGHTS AND PROTECTIONS
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20
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ARTICLE 7 MISCELLANEOUS
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21
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7.1
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NO MITIGATION OR SET OFF
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21
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7.2
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ASSIGNABILITY
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21
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7.3
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NOTICES
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21
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7.4
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SEVERABILITY
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21
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7.5
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SUCCESSORS; BINDING AGREEMENT
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21
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7.6
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TAX WITHHOLDINGS
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22
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7.7
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AMENDMENTS AND WAIVERS
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22
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7.8
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NO DUPLICATE SEVERANCE; ENTIRE AGREEMENT
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22
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7.9
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GOVERNING LAW
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23
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7.10
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COUNTERPARTS
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23
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7.11
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INDEMNIFICATION; LIABILITY INSURANCE
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23
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7.12
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REMEDIES CUMULATIVE
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23
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7.13
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JOINT AND SEVERAL LIABILITY
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23
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-ii-
EXHIBIT 10.2
Executive Change In Control Agreement
For
Presidents
This
Executive Change in Control and Severance Benefits Agreement
(the “Agreement”)
is entered into as of the ___ day of ___, 20___ (the “Effective Date”), by and among
___
___
(“Executive”),
US A
irways Group
, I
nc
.
, a
Delaware corporation (“Group”), and
US A
irways, Inc.
, a Delaware corporation and a
wholly-owned subsidiary of Group (“US Airways” and, together with Group, the “Company”).
Whereas,
certain employees of the Company were parties to Executive Change In Control
and Severance Benefit Agreements with
America West Holdings Corporation
and
America
West Airlines, Inc.
, although those agreements have since expired;
Whereas,
Executive is currently employed by the Company and has made and is expected
to continue to make major contributions to the short- and long-term profitability, growth and
financial strength of the Company; and
Whereas,
the Company wishes to provide additional inducement for Executive to remain
in the ongoing employ of the Company.
ARTICLE 1
Defined Terms
For purposes of the Agreement, the following terms are defined as follows:
1.1 “Base Salary”
means the greater of Executive’s (i) annual base salary immediately
preceding a Change in Control after the Effective Date and (ii) annual base salary as in effect
during the last regularly scheduled payroll period immediately preceding the effective date of
Executive’s termination (x) by the Company for any reason other than Misconduct or Disability, or
(y) by Executive for Good Reason.
1.2 “Board”
means the Board of Directors of Group.
1.3
“Change in Control
” shall occur on the first date after the Effective Date that any of the
following occurs:
(a)
Within any 12-month period, the individuals who constitute the Board at the beginning of
such period (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board;
provided, however,
that any individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by Group’ stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board; or
(b)
any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than
the Company, acquires
(directly or indirectly) the beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 50% of the combined voting power of the then outstanding
voting securities of Group or US Airways entitled to vote generally in the election of directors
(“Voting Power”); or
(c)
Group or US Airways shall consummate a merger, consolidation or reorganization of Group or
US Airways or any other similar transaction or series of related transactions (collectively, a
“Transaction”) other than (A) a Transaction in which the voting securities of Group or US Airways
outstanding immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent corporation immediately
after such Transaction that are owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least 50% of the Voting Power held by the voting
securities of the surviving corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Group or US Airways (or similar transaction) in which no person
(excluding Group or US Airways or any person who held more than 50% of the Voting Power immediately
prior to such Transaction) acquires more than 50% of the Voting Power; or
(d)
Group or US Airways shall sell or otherwise dispose of, or consummate a transaction or
series of related transactions providing for the sale or other disposition of, all or substantially
all of the stock or assets of US Airways or shall enter into a plan for the complete liquidation of
either Group or US Airways.
1.4 “Code”
means the Internal Revenue Code of 1986, as amended and the regulations promulgated
thereunder.
1.5 “Disability”
means a physical or mental condition of Executive that, in the good faith
judgment of the Company, based upon certification by a licensed physician reasonably acceptable to
Executive and the Company, (i) prevents Executive from being able to perform the material services
required by his or her position with the Company and (ii) has continued for a period of 180 days
during a 365 day period.
1.6 “409A Change in Control”
means a Change in Control that satisfies the requirements of
Section 409A(a)(2)(A)(v) and the regulations with regard thereto.
1.7 “Good Reason”
means any of the following acts or failures to act, but in each case only if
it occurs during the period Executive is employed by the Company and only if it is not consented to
by Executive: (i) a material adverse alteration by the Company in Executive’s compensation,
position, function, duties or responsibilities;
provided, however,
that such alteration shall cease
to be a Good Reason ninety (90) days after the initial occurrence of such alteration unless prior
to such date Executive has given written notice of termination to the Company on account of such
alteration if the Company does not remedy such alteration within thirty days (30) days of its
receipt of such notice (the “Cure Period”) and the Company has not remedied such alteration by the
end of the Cure Period; (ii) the relocation of Executive outside the metropolitan area in which
Executive is based;
provided, however,
that such relocation shall cease to be a Good Reason ninety
(90) days after the occurrence of such relocation unless prior to such date Executive has given
written notice of termination to the Company on account of
2
such relocation and the Company does not
remedy such relocation within the Cure Period and the Company has not remedied such relocation by
the end of the Cure Period; or (iii) the failure of the Company to perform any material obligation
owed to Executive; provided, however, that such failure shall cease to be a Good Reason ninety (90)
days after the initial occurrence of such failure unless prior to such date Executive has given
written notice of termination to the Company on account of such failure and the Company does not
remedy such failure within the Cure Period and the Company has not remedied such failure by the end
of the Cure Period.
1.8 “Misconduct”
means one or more of the following:
(a)
the willful and continued failure by Executive to perform his or her duties (other than
any such failure resulting from Executive’s incapacity due to physical or mental illness) after
written notice of such failure has been given to Executive by the Company and Executive has had a
reasonable period (but not more than fifteen (15) days) after receipt of such notice to correct
such failure;
(b)
the unlawful or willful commission by Executive of any act that is dishonest and
demonstrably injurious to Group, US Airways or any direct or indirect subsidiary of Group
(monetarily or otherwise) in any material respect;
(c)
the conviction of, or plea of guilty or
nolo contendere
to, a felony offense by Executive;
(d)
habitual drug or alcohol abuse that impairs Executive’s ability to perform the essential
duties of his position or the use of illegal drugs on the Company’s premises;
(e)
embezzlement, fraud or any other illegal act against the Company or any illegal act
committed in connection with Executive’s performance of his duties; or
(f)
any material breach by Executive of any material Company policy (other than inadvertent
actions taken in good faith), including without limitation the Company’s code of conduct and those
policies regarding ethics, unlawful harassment, workplace safety, or workplace discrimination.
(g)
a material breach by Executive of this Agreement or any other agreements between the
Company and Executive, but only if such breach shall continue unremedied for more than fifteen (15)
days after written notice thereof is given to Executive by the Company.
1.9 “Proprietary Information”
Proprietary Information means information that meets the
definition of “trade secret” under the laws of the State of New York, as well as any scientific or
technical information, design, process, procedure, formula or improvement that is secret and of
value, information that the Company (or an affiliated company) takes reasonable efforts to protect
from disclosure and from which the Company (or an affiliated company) derives actual or potential
economic value due to its confidential nature, including, but not limited to, technical or
nontechnical data, formulas, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, lists of actual or potential customers, price lists, business plans,
customer and vendor records, training and operations materials and memoranda, personnel records,
financial information relating to the business of the Company (or an affiliated
3
company), accounts,
customers, vendors, employees and affairs of the Company (or an affiliated company), and any
information marked “confidential” by the Company (or an affiliated company).
ARTICLE 2
Benefits
2.1 Benefits Upon Certain Terminations Following a Change in Control.
If, (i) within
twenty-four (24) months following the date of a Change in Control, Executive (x) is terminated by
the Company for any reason other than Misconduct or Disability or (y) terminates employment with
the Company for Good Reason or (ii) subject to Section 2.4 hereof, if a Change in Control occurs
and Executive has been terminated by the Company for any reason other than Misconduct or Disability
prior to such Change in Control and Executive can reasonably demonstrate that the termination was
at the request of a third party who was taking steps reasonably calculated to effect such Change in
Control (or such termination otherwise occurs in contemplation of such Change in Control), then
Executive shall receive, in accordance with Section 4.1 below, the following benefits:
(a) Payment of Accrued Obligations.
Executive shall receive in the event of any termination
(i) all accrued but unpaid Base Salary through Executive’s employment termination date, (ii) all
unused vacation time accrued by Executive as of such termination date, (iii) any unpaid or
unreimbursed expenses, (iv) any benefits provided under the Company’s employee benefit plans upon a
termination of employment, in accordance with the terms contained therein, and (v) unless Executive
is terminated by the Company for Misconduct, any unpaid bonus under the Company’s annual cash
incentive program in respect to any completed fiscal year which has ended prior to the date of such
termination, which amount shall be paid at such time annual bonuses are paid to other executives of
the Company, but in no event later than March 15 of the calendar year following the year to which
the bonus relates.
(b) Base Salary.
Executive shall receive an amount equal to two times Executive’s Base
Salary.
(c) Annual Bonus.
Executive shall receive an amount equal to the greater of either (i) (x)
200% of Executive’s target bonus under the Company’s annual cash incentive program, if then in
effect, for the year of such termination, and (y) if such program is not then in effect and its
suspension or termination constituted a Good Reason basis for Executive’s termination of
employment, 200% of Executive’s target bonus under such program immediately prior to its suspension
or termination or (ii) Executive’s actual bonus for the immediately preceding year.
(d) Long Term Incentive Plan.
Executive shall receive in respect of the US Airways Group,
Inc. Performance-Based Award Program, or any similar long-term incentive compensation program (the
“LTIP”), either (i) if the LTIP is in effect on Executive’s employment termination date, an amount
equal to 200% of Executive’s target award under the LTIP, or (ii) if the LTIP is not in effect on
Executive’s employment termination date and its suspension or termination constituted a Good Reason
basis for Executive’s termination of
4
employment, an amount equal to 200% of the target award most
recently established for Executive under the LTIP. Capitalized terms in the preceding sentence
that are not defined in this Agreement shall have the definition assigned to such terms in the
LTIP.
(e) Continued Health Coverage Payment.
Provided Executive is eligible to elect COBRA
continuation coverage under the Company’s group health plan upon his termination, the Company shall
pay to Executive a lump sum cash amount equivalent to the cost of COBRA continuation coverage
premiums for the Executive and his covered dependents for twenty-four (24) months following the
effective date of such termination, regardless of whether the Executive and/or his covered
dependents actually elect COBRA continuation coverage.
(f) Extended Exercisability of Stock Awards.
Executive shall be entitled to exercise his or
her outstanding stock appreciation rights, stock options, and other similar stock awards granted
pursuant the US Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, to the
extent such awards are vested, until the earlier of (i) the expiration or other termination (other
than related to Executive’s termination of employment) of the term of such awards as provided in
the agreement under which such awards were granted, and (ii) eighteen (18) months after Executive’s
termination of employment.
2.2 Benefits Upon a Change in Control.
In the event of a Change in Control while Executive is
employed by the Company, Executive shall receive the following benefits:
(a) Acceleration of Equity Vesting.
All outstanding stock awards granted pursuant to the US
Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, and then held by Executive
shall become immediately vested effective upon such Change in Control.
(b) Flight Privileges.
Upon termination of employment with the Company, subject to Section
4.3 of this Agreement, Executive shall receive the right to top priority, first class, positive
space travel privileges for business and pleasure for Executive and his eligible family members,
pursuant to the terms and conditions of the Company’s travel policy for officers as amended from
time to time. Travel privileges will be provided by US Airways or, if US Airways did not survive
the Change in Control, by the airline which survived the Change in Control, and will continue for
Executive’s lifetime. Executive’s right to travel privileges shall be subject to all applicable
taxes pursuant to the Company’s then existing tax policies, and the Company will not
provide any tax gross-up payments to Executive for taxes payable on such travels. The amount
of travel privileges used by Executive in one year will not affect the amount of travel privileges
Executive is entitled to use in any other year. The right to travel privileges provided in this
Agreement is not subject to liquidation, cashout, or exchange for any other taxable or nontaxable
benefit.
2.3 Mitigation.
Except as otherwise specifically provided herein, Executive shall not be
required to mitigate damages or the amount of any payment provided under this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of employment by another
employer received by Executive or by any retirement benefits received by Executive after the date
of Executive’s termination (i) by the Company for any reason other than Misconduct or Disability,
or (ii) by Executive for Good Reason.
5
2.4 Termination of Employment in Contemplation of a Change in Control
. If payments and
benefits are being made to Executive pursuant to Section 2.1(ii), then the following terms and
conditions shall apply:
(a)
Payments and benefits due upon the Change in Control shall be offset by any amount(s)
received prior thereto or due thereafter as a result of Executive’s termination of employment prior
to the Change in Control.
(b)
In lieu of the benefits provided under Section 2.1(f) and Section 2.2(a), Executive shall
receive an amount equal to the intrinsic value of any stock award forfeited at the time of
Executive’s termination of employment that would have vested on the Change in Control (based on the
value as of the date of the Change in Control) of any stock award (other than exercisable grants)
and, as to exercisable grants, the difference between such stock award’s exercise price and the
value of the stock underlying such award on the date of the Change in Control; provided that such
amounts shall be payable upon the Change in Control if the Change in Control is a 409A Change in
Control and, if such Change in Control is not a 409A Change in Control, such amounts shall be paid,
subject to Section 4.1, in the calendar year following the calendar year in which the termination
occurs at the later of the Change in Control or January 15.
ARTICLE 3
Limitations and Conditions on Benefits
3.1 Release Prior to Payment of Benefits.
In order to be eligible to receive benefits under
this Agreement (other than the amounts due under (i), (ii) and (iii) of Section 2.1(a)), Executive
must execute a general waiver and release in substantially the form attached hereto as Exhibit A,
Exhibit B or Exhibit C, as appropriate, within forty-five (45) days of such termination. The
Company, in its sole discretion, shall determine the form of the required release, which may be
incorporated into a termination agreement or other agreement with Executive, and may modify the
form of the required release to comply with applicable federal or state law.
3.2 Parachute Payments.
If the Company determines that any amounts payable under this
Agreement, either alone or together with other compensation, would be subject to the excise tax
imposed on “excess parachute payments” under Section 4999 of the Code, the Company shall compute
the amount that would be payable to Executive if the total amounts that are payable to Executive by
the Company and are considered “parachute payments” for purposes of Code Section 280G (“Parachute
Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections
280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped
Amount”). The Company will also compute the amount that would be payable under the Agreement
without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the
“Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped
Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are
considered Parachute Payments and are payable to Executive under this Agreement will be reduced to
the Capped Amount. If the Capped Amount is to be paid, payments shall be reduced in the following
order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other
cash
6
amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv)
acceleration of vesting on any stock awards for which the exercise price exceeds the then fair
market value and (v) acceleration of vesting of any equity not covered by section (iv) above,
unless Executive elects another method of reduction of written notice to the Company prior to a
Change in Control.
If, after application of the preceding paragraph, any payments, distributions or benefits
Executive would receive from the Company or otherwise, but determined without regard to any
additional payment required under this Section 3.2, pursuant to the terms of this Agreement
(“Payments”), would (i) constitute Parachute Payments, and (ii) be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties payable with respect to such
excise tax (such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive from the
Company an additional payment (the “Gross-Up Payment”) in an amount that shall fund the payment by
Executive of any Excise Tax on the Payments as well as all income and employment taxes imposed on
the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties
imposed with respect to income and employment taxes imposed on the Gross-Up Payment.
The accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change in Control, or a nationally recognized accounting firm of the
Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company and Executive within
fifteen (15) calendar days after the date on which Executive’s right to the Payments is triggered
(if requested at that time by the Company or Executive) or such other time as requested by the
Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect
to the Payments, it shall furnish the Company and Executive with an opinion reasonably acceptable
to Executive that no Excise Tax will be imposed with respect to such Payments. Any good faith
determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
the Company and Executive. Any Gross-Up Payment to which Executive becomes entitled under this
Section 3.2 shall be made to Executive no later than the calendar year next following the calendar
year in which Executive remits the taxes to which such Gross-Up Payment relates.
3.3 Certain Reductions and Offsets.
The Company, in its sole discretion, shall have the
authority to reduce Executive’s severance benefits, other than Executive’s right to the travel
privileges under Section 2.2(b) or any Gross-Up Payment under Section 3.2, in whole or in part, by
any other severance benefits, pay in lieu of notice, or other similar benefits payable to Executive
by the Company that become payable in connection with Executive’s termination of employment
pursuant to (i) any applicable legal requirement, including, without limitation, the Worker
Adjustment and Retraining Notification Act (the “WARN Act”), (ii) a written employment or severance
agreement with the Company, or (iii) any Company policy or practice providing for Executive to
remain on the payroll for a limited period of time after being given
7
notice of the termination of
Executive’s employment. The benefits provided under this Agreement are intended to satisfy, in
whole or in part, any and all statutory obligations that may arise out of Executive’s termination
of employment, and the Company shall so construe and enforce the terms of this Agreement. The
Company’s decision to apply such reductions to the severance benefits of one Executive and the
amount of such reductions shall in no way obligate the Company to apply the same reductions in the
same amounts to the severance benefits of any other Executive, even if similarly situated. In the
Company’s sole discretion, such reductions may be applied on a retroactive basis, with severance
benefits previously paid being recharacterized as payments pursuant to the Company’s statutory
obligation.
3.4 Restrictive Covenants.
In order to be eligible to receive benefits under this Agreement,
Executive must comply with the requirements set forth in this Section 3.4. In the event Executive
fails to satisfy these requirements, the Company shall have no obligation to pay or to continue the
benefits provided under this Agreement.
(a) Return of Documents and Property.
Promptly upon the date on which Executive’s employment
with the Company terminates, Executive shall return to the Company all of the Company’s property
(or the property of an affiliated company) of any kind, including but not limited to, business
plans, financial records, computer hardware, computer software, documents, data, books, memoranda,
notes, sketches, audio-visual materials, correspondence, lists, pricing information, customer
and/or vendor lists or information, and all other tangible property. Notwithstanding the
foregoing, Executive shall be permitted to retain Executive’s personal address book.
(b) Non-Solicitation of Employees.
Executive agrees that for one (1) year after his
employment with the Company terminates, Executive will not, directly or indirectly, solicit or
attempt to recruit or hire, or hire or retain, any employee of the Company (or an affiliated
company) who were employed by the Company (or an affiliated company) at any time during the last
year of Executive’s employment with the Company to provide services for any other person or entity.
(c) No Disparagement.
Executive agrees that for five (5) years after his employment with the
Company terminates, Executive will not make any untrue or disparaging statement or criticism,
written or oral, nor take any action which is adverse to the interests of the Company (or an
affiliated company) or that would cause the Company (or an affiliated company) or its current and
former officers, directors, or employees embarrassment or humiliation or otherwise cause or
contribute to such persons being held in disrepute by the public or the Company’s customers or
employees. From and after the date on which Executive’s employment with the Company terminates,
Executive shall refrain from discussing the terms and conditions of the termination of his
employment with any employee or customer of the Company (or an affiliated company) or with any
reporter, media contacts or any form of public media, unless such communication is previously
approved by the General Counsel of the Company.
(d) Nondisclosure of Trade Secrets and Proprietary Information.
Except to the extent
reasonably necessary for Executive to perform his duties for the Company, Executive shall not,
directly or indirectly, furnish or disclose to any person, or use in any way, any trade secrets of
the Company (or an affiliated company), for so long as such trade secrets
8
remain “trade secrets”
under applicable state law. Except to the extent reasonably necessary for Executive to perform his
duties for the Company, Executive shall not, during his employment with the Company or following
the date on which Executive’s employment with the Company terminates, directly or indirectly,
furnish or disclose to any person, or use in any way, for personal benefit or the benefit of
others, any Proprietary Information of the Company (or an affiliated company).
3.5 Termination on Account of Death.
In no event shall a termination on account of
Executive’s death entitle Executive or any of his or her heirs or beneficiaries to any benefits
under this Agreement.
3.6 Forfeiture; Repayment
. If Executive materially breaches Sections 3.4(a)-(d), then
Executive shall (i) forfeit any and all rights to any future payments or benefits to be made or
provided under this Agreement and (ii) reimburse the Company for all payments made and the value of
all benefits received by Executive and Executive’s dependents (if any) up to and through the
date of such breach, with interest at the prime rate published by the Wall Street Journal on
the date the Company sends written demand for reimbursement, compounded annually, from the date
such payments or benefits were made until the date of repayment.
3.7 Termination of Certain Other Benefits.
All other benefits (such as qualified retirement
plan participation) shall terminate as of Executive’s termination date.
3.8 Non-Duplication of Benefits.
Executive is not eligible to receive benefits under this
Agreement more than one time.
3.9 Remedies
. Executive recognizes that any breach of this Section 3 shall cause irreparable
injury to the Company or its affiliates, inadequately compensable in monetary damages.
Accordingly, in addition to any other legal or equitable remedies that may be available to the
Company, Executive agrees that the Company or its affiliates shall be able to seek and obtain
injunctive relief in the form of a temporary restraining order, preliminary injunction, or
permanent injunction against Executive to enforce this Agreement. Any recovery of damages by the
Company and its affiliates shall be in addition to and not in lieu of the injunctive and other
relief and remedies to which the Company and its affiliates are entitled under Sections 3.6, 3.7,
3.9 or otherwise.
ARTICLE 4
Time of Payment and Form of Benefit
4.1 Code Section 409A and Time of Payments.
(a) It is intended that the provisions of this
Agreement comply with Code Section 409A, and all provisions of this Agreement shall be construed in
a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
If any provision of this Agreement (or of any award of compensation, including equity compensation
or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A,
the Company shall, after consulting with Executive, reform such provision to comply with Code
Section 409A, provided that the Company agrees to maintain, to the maximum extent practicable, the
original intent and
9
economic benefit to Executive of the applicable provision without violating the
provisions of Code Section 409A. The Company shall timely amend any separation payment plan or
program in which Executive participates to bring it in compliance with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or benefits upon or following
a termination of employment unless such termination is also a “separation from service” (within the
meaning of Code Section 409A) and, for purposes of any such provision of this Agreement, references
to a “termination” or “termination of employment” shall mean separation from service. If Executive
is deemed on the date of termination of her employment to be a “specified employee,” within the
meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology
selected by the Company from time to time (or if none, the default methodology), then with regard
to any payment or the providing of any benefit made pursuant to this Agreement, including without
limitation the severance payments under Sections 2.1(b)-(e), and any other payment or the provision
of any other benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B),
such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of
the six-month period measured from the date of Executive’s separation from service or (ii) the date
of Executive’s death. On the first day of the seventh month following the date of Executive’s
separation from service or, if earlier, on the date of Executive’s death, all payments delayed
pursuant to this Section 4.1(b) (whether they would have otherwise been payable in a single sum or
in installments in the absence of such delay) shall be paid or reimbursed to Executive in a lump
sum, with interest. The rate of interest shall be the short term federal rate applicable under
Section 7872(f)(2)(A) of the Code for the month in which the Executive’s termination date occurs.
Any remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(c) With regard to any provision herein that provides for reimbursement of expenses or in-kind
benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible
for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year,
provided
that the foregoing clause (ii) shall not be violated with regard to expenses
reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses
are subject to a limit related to the period the arrangement is in effect.
4.2 Gross-Up Payment to Specified Employees.
If Executive is a specified employee (within the
meaning of Code Section 409A(a)(2)(B)) on the date Executive incurred a “separation from service”
(within the meaning of Code Section 409A), then, notwithstanding anything in Sections 3.2 or 4.1 of
the Agreement to the contrary, any Gross-Up Payment to which the Executive becomes entitled shall
be paid to Executive promptly and in no event later than the end of the calendar year next
following the calendar year in which the Excise Tax is paid by Executive.
4.3 Travel Privileges to Specified Employees.
If Executive is a specified employee (within
the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code and the regulations thereunder)
on the date his employment with the Company terminates, Executive will not be
10
entitled to the
travel privileges described in Section 2.1 of the Agreement until six (6) months following his
termination of employment with the Company.
4.4 Tax Withholding.
All payments under this Agreement shall be subject to applicable
withholding for federal, state, and local taxes.
ARTICLE 5
General Provisions
5.1 Employment Status.
Nothing in this Agreement alters the at-will nature of Executive’s
employment. Either the Company or Executive can terminate the employment relationship at any time,
with or without cause and with or without advance notice. This at-will employment relationship can
only be modified in a writing signed by Executive and a duly authorized Company representative.
5.2 Notices.
Any notices provided hereunder must be in writing, and such notices or any other
written communication shall be deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third (3rd) day after mailing by first class mail, to the
Company at its primary office location and to Executive at Executive’s address as listed in the
Company’s payroll records. Any payments made by the Company to Executive under the terms of this
Agreement shall be delivered to Executive either in person or at the address as listed in the
Company’s payroll records.
5.3 Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never
been contained herein.
5.4 Waiver.
If any party should waive any breach of any provisions of this Agreement, the
party shall not thereby be deemed to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
5.5 Complete Agreement.
With the exception of any written agreement that provides for
payments upon a termination of employment not in connection with a Change in Control or 409A Change
in Control, this Agreement, including Exhibit A, Exhibit B and Exhibit C, constitutes the entire
agreement between Executive and the Company and is the complete, final, and exclusive embodiment of
their agreement with regard to this subject matter, and it supersedes any other agreements or
promises made to Executive by the Company, whether oral, written or implied, regarding payments and
benefits to Executive in the event of employment termination. The Agreement is entered into
without reliance on any promise or representation other than those expressly contained herein.
5.6 Term.
Unless terminated pursuant to Section 5.7, this Agreement shall remain in effect
for a two-year period ending on the second anniversary date of the Effective Date (the
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“Initial
Term”). The Agreement shall automatically be renewed and shall continue for successive terms of
two-years, unless the Company provides Executive with written notice to the contrary at least 180
days prior to the expiration of the Initial Term or any succeeding term. Notwithstanding the
foregoing, this Section 5.6 may not be amended, modified or terminated without Executive’s prior
written consent (unless required by applicable law) (i) during the 180-day prior to any Change in
Control or (ii) at any time following any Change in Control and any such amendment or modification
shall be null and void.
5.7 Amendment or Termination.
This Agreement may be changed or terminated only upon the
mutual written consent of the Company and Executive. Notwithstanding any provision to the
contrary, this Agreement shall terminate when Executive ceases to be employed by the Company or by
any surviving or successor entity following any Change in Control.
5.8 Counterparts.
This Agreement may be executed in separate counterparts, any one of which
need not contain signatures of more than one party, but all of which taken together will constitute
one and the same Agreement.
5.9 Headings.
The headings of the Articles and Sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
5.10 Successors and Assigns.
This Agreement is intended to bind and inure to the benefit of
and be enforceable by Executive and the Company, and any surviving entity resulting from a Change
in Control and upon any other person who is a successor by merger, acquisition, consolidation or
otherwise to the business formerly carried on by the Company, and their respective successors,
assigns, heirs, executors and administrators, without regard to whether or not such person
expressly assumes any rights or duties hereunder;
provided, however,
that Executive may not assign
any duties hereunder and may not assign any rights hereunder without the written consent of the
Company, which consent shall not be withheld unreasonably.
5.11 Choice of Law.
All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of New York
,
without regard to such state’s
conflict of laws rules.
5.12 Non-Publication.
Executive agrees not to disclose the terms of this Agreement except to
the extent that disclosure is mandated by applicable law or legal process or disclosure is made to
the Executive’s advisors and agents (
e.g.
, attorneys, accountants), immediate family members or to
inform any future employer of the terms of this Agreement.
5.13 Construction of Agreement.
In the event of a conflict between the text of the Agreement
and any summary, description or other information regarding the Agreement, the text of the
Agreement shall control.
12
In Witness Whereof,
the parties have executed this Agreement on the Effective Date
written above.
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US A
irways Group, Inc.
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irways, Inc.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Exhibit A:
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Release (Individual Termination — Age 40 or Older)
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Exhibit B:
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Release (Individual and Group Termination — Under Age 40)
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Exhibit C:
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Release (Group Termination —Age 40 or Older)
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13
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated ___________, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA and that the consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8
th
) day after I
execute this Release.
A-1
Exhibit B
RELEASE
(Individual and Group Termination — Under Age 40)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated ___________, 20___, to which I would not
otherwise be entitled, I hereby agree s follows:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Employee Retirement Income Security Act of 1974, as
amended; the federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as
amended; tort law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional
distress; and breach of the implied covenant of good faith and fair dealing.
B-1
Exhibit C
RELEASE
(
Group Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated
___________, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA and that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing, as required by the ADEA, that:
(A) my waiver and release do not apply to any rights or claims that may arise on or after the date
I execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day (8th) after I execute this
Release; and (F) I have received with this Release an attachment that contains certain demographic
information required by ADEA.
[
ADEA
Attachment to
Exhibit
C
]
C-1
Exhibit 10.3
Executive Change In Control Agreement
For
Executive Vice Presidents
This
Executive Change in Control and Severance Benefits Agreement
(the “Agreement”)
is entered into as of the ___ day of
, 20___ (the “Effective Date”), by and among
(“Executive”),
US A
irways Group
, I
nc
.
, a
Delaware corporation (“Group”), and
US A
irways, Inc.
, a Delaware corporation and a
wholly-owned subsidiary of Group (“US Airways” and, together with Group, the “Company”).
Whereas,
certain employees of the Company were parties to Executive Change In Control
and Severance Benefit Agreements with
America West Holdings Corporation
and
America
West Airlines, Inc.
, although those agreements have since expired;
Whereas,
Executive is currently employed by the Company and has made and is expected
to continue to make major contributions to the short- and long-term profitability, growth and
financial strength of the Company; and
Whereas,
the Company wishes to provide additional inducement for Executive to remain
in the ongoing employ of the Company.
ARTICLE 1
Defined Terms
For purposes of the Agreement, the following terms are defined as follows:
1.1 “Base Salary”
means the greater of Executive’s (i) annual base salary immediately
preceding a Change in Control after the Effective Date and (ii) annual base salary as in effect
during the last regularly scheduled payroll period immediately preceding the effective date of
Executive’s termination (x) by the Company for any reason other than Misconduct or Disability, or
(y) by Executive for Good Reason.
1.2 “Board”
means the Board of Directors of Group.
1.3
“Change in Control
” shall occur on the first date after the Effective Date that any of the
following occurs:
(a)
Within any 12-month period, the individuals who constitute the Board at the beginning of
such period (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board;
provided, however,
that any individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by Group’ stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board; or
(b)
any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than
the Company, acquires (directly or indirectly) the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than 50% of the combined voting power of the
then outstanding voting securities of Group or US Airways entitled to vote generally in the
election of directors (“Voting Power”); or
(c)
Group or US Airways shall consummate a merger, consolidation or reorganization of Group or
US Airways or any other similar transaction or series of related transactions (collectively, a
“Transaction”) other than (A) a Transaction in which the voting securities of Group or US Airways
outstanding immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent corporation immediately
after such Transaction that are owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least 50% of the Voting Power held by the voting
securities of the surviving corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Group or US Airways (or similar transaction) in which no person
(excluding Group or US Airways or any person who held more than 50% of the Voting Power immediately
prior to such Transaction) acquires more than 50% of the Voting Power; or
(d)
Group or US Airways shall sell or otherwise dispose of, or consummate a transaction or
series of related transactions providing for the sale or other disposition of, all or substantially
all of the stock or assets of US Airways or shall enter into a plan for the complete liquidation of
either Group or US Airways.
1.4 “Code”
means the Internal Revenue Code of 1986, as amended and the regulations promulgated
thereunder.
1.5 “Disability”
means a physical or mental condition of Executive that, in the good faith
judgment of the Company, based upon certification by a licensed physician reasonably acceptable to
Executive and the Company, (i) prevents Executive from being able to perform the material services
required by his or her position with the Company and (ii) has continued for a period of 180 days
during a 365 day period.
1.6 “409A Change in Control”
means a Change in Control that satisfies the requirements of
Section 409A(a)(2)(A)(v) and the regulations with regard thereto.
1.7 “Good Reason”
means any of the following acts or failures to act, but in each case only if
it occurs during the period Executive is employed by the Company and only if it is not consented to
by Executive: (i) a material adverse alteration by the Company in Executive’s compensation,
position, function, duties or responsibilities;
provided, however,
that such alteration shall cease
to be a Good Reason ninety (90) days after the initial occurrence of such alteration unless prior
to such date Executive has given written notice of termination to the Company on account of such
alteration if the Company does not remedy such alteration within thirty days (30) days of its
receipt of such notice (the “Cure Period”) and the Company has not remedied such alteration by the
end of the Cure Period; (ii) the relocation of Executive outside the metropolitan area in which
Executive is based;
provided, however,
that such relocation shall cease to be a Good Reason ninety
(90) days after the occurrence of such relocation unless prior to such date Executive has given
written notice of termination to the Company on account of
2
such relocation and the Company does not remedy such relocation within the Cure Period and the
Company has not remedied such relocation by the end of the Cure Period; or (iii) the failure of the
Company to perform any material obligation owed to Executive; provided, however, that such failure
shall cease to be a Good Reason ninety (90) days after the initial occurrence of such failure
unless prior to such date Executive has given written notice of termination to the Company on
account of such failure and the Company does not remedy such failure within the Cure Period and the
Company has not remedied such failure by the end of the Cure Period.
1.8 “Misconduct”
means one or more of the following:
(a)
the willful and continued failure by Executive to perform his or her duties (other than
any such failure resulting from Executive’s incapacity due to physical or mental illness) after
written notice of such failure has been given to Executive by the Company and Executive has had a
reasonable period (but not more than fifteen (15) days) after receipt of such notice to correct
such failure;
(b)
the unlawful or willful commission by Executive of any act that is dishonest and
demonstrably injurious to Group, US Airways or any direct or indirect subsidiary of Group
(monetarily or otherwise) in any material respect;
(c)
the conviction of, or plea of guilty or
nolo contendere
to, a felony offense by Executive;
(d)
habitual drug or alcohol abuse that impairs Executive’s ability to perform the essential
duties of his position or the use of illegal drugs on the Company’s premises;
(e)
embezzlement, fraud or any other illegal act against the Company or any illegal act
committed in connection with Executive’s performance of his duties; or
(f)
any material breach by Executive of any material Company policy (other than inadvertent
actions taken in good faith), including without limitation the Company’s code of conduct and those
policies regarding ethics, unlawful harassment, workplace safety, or workplace discrimination.
(g)
a material breach by Executive of this Agreement or any other agreements between the
Company and Executive, but only if such breach shall continue unremedied for more than fifteen (15)
days after written notice thereof is given to Executive by the Company.
1.9 “Proprietary Information”
Proprietary Information means information that meets the
definition of “trade secret” under the laws of the State of New York, as well as any scientific or
technical information, design, process, procedure, formula or improvement that is secret and of
value, information that the Company (or an affiliated company) takes reasonable efforts to protect
from disclosure and from which the Company (or an affiliated company) derives actual or potential
economic value due to its confidential nature, including, but not limited to, technical or
nontechnical data, formulas, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, lists of actual or potential customers, price lists, business plans,
customer and vendor records, training and operations materials and memoranda, personnel records,
financial information relating to the business of the Company (or an affiliated
3
company), accounts, customers, vendors, employees and affairs of the Company (or an affiliated
company), and any information marked “confidential” by the Company (or an affiliated company).
ARTICLE 2
Benefits
2.1 Benefits Upon Certain Terminations Following a Change in Control.
If, (i) within
twenty-four (24) months following the date of a Change in Control, Executive (x) is terminated by
the Company for any reason other than Misconduct or Disability or (y) terminates employment with
the Company for Good Reason or (ii) subject to Section 2.4 hereof, if a Change in Control occurs
and Executive has been terminated by the Company for any reason other than Misconduct or Disability
prior to such Change in Control and Executive can reasonably demonstrate that the termination was
at the request of a third party who was taking steps reasonably calculated to effect such Change in
Control (or such termination otherwise occurs in contemplation of such Change in Control), then
Executive shall receive, in accordance with Section 4.1 below, the following benefits:
(a) Payment of Accrued Obligations.
Executive shall receive in the event of any termination
(i) all accrued but unpaid Base Salary through Executive’s employment termination date, (ii) all
unused vacation time accrued by Executive as of such termination date, (iii) any unpaid or
unreimbursed expenses, (iv) any benefits provided under the Company’s employee benefit plans upon a
termination of employment, in accordance with the terms contained therein, and (v) unless Executive
is terminated by the Company for Misconduct, any unpaid bonus under the Company’s annual cash
incentive program in respect to any completed fiscal year which has ended prior to the date of such
termination, which amount shall be paid at such time annual bonuses are paid to other executives of
the Company, but in no event later than March 15 of the calendar year following the year to which
the bonus relates.
(b) Base Salary.
Executive shall receive an amount equal to two times Executive’s Base
Salary.
(c) Annual Bonus.
Executive shall receive an amount equal to the greater of either (i) (x)
200% of Executive’s target bonus under the Company’s annual cash incentive program, if then in
effect, for the year of such termination, and (y) if such program is not then in effect and its
suspension or termination constituted a Good Reason basis for Executive’s termination of
employment, 200% of Executive’s target bonus under such program immediately prior to its suspension
or termination or (ii) Executive’s actual bonus for the immediately preceding year.
(d) Long Term Incentive Plan.
Executive shall receive in respect of the US Airways Group,
Inc. Performance-Based Award Program, or any similar long-term incentive compensation program (the
“LTIP”), either (i) if the LTIP is in effect on Executive’s employment termination date, an amount
equal to 200% of Executive’s target award under the LTIP, or (ii) if the LTIP is not in effect on
Executive’s employment termination date and its suspension or termination constituted a Good Reason
basis for Executive’s termination of
4
employment, an amount equal to 200% of the target award most recently established for
Executive under the LTIP. Capitalized terms in the preceding sentence that are not defined in this
Agreement shall have the definition assigned to such terms in the LTIP.
(e) Continued Health Coverage Payment.
Provided Executive is eligible to elect COBRA
continuation coverage under the Company’s group health plan upon his termination, the Company shall
pay to Executive a lump sum cash amount equivalent to the cost of COBRA continuation coverage
premiums for the Executive and his covered dependents for twenty-four (24) months following the
effective date of such termination, regardless of whether the Executive and/or his covered
dependents actually elect COBRA continuation coverage.
(f) Extended Exercisability of Stock Awards.
Executive shall be entitled to exercise his or
her outstanding stock appreciation rights, stock options, and other similar stock awards granted
pursuant the US Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, to the
extent such awards are vested, until the earlier of (i) the expiration or other termination (other
than related to Executive’s termination of employment) of the term of such awards as provided in
the agreement under which such awards were granted, and (ii) eighteen (18) months after Executive’s
termination of employment.
2.2 Benefits Upon a Change in Control.
In the event of a Change in Control while Executive is
employed by the Company, Executive shall receive the following benefits:
(a) Acceleration of Equity Vesting.
All outstanding stock awards granted pursuant to the US
Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, and then held by Executive
shall become immediately vested effective upon such Change in Control.
(b) Flight Privileges.
Upon termination of employment with the Company, subject to Section
4.3 of this Agreement, Executive shall receive the right to top priority, first class, positive
space travel privileges for business and pleasure for Executive and his eligible family members,
pursuant to the terms and conditions of the Company’s travel policy for officers as amended from
time to time. Travel privileges will be provided by US Airways or, if US Airways did not survive
the Change in Control, by the airline which survived the Change in Control, and will continue for
Executive’s lifetime. Executive’s right to travel privileges shall be subject to all applicable
taxes pursuant to the Company’s then existing tax policies, and the Company will not provide any
tax gross-up payments to Executive for taxes payable on such travels. The amount of travel
privileges used by Executive in one year will not affect the amount of travel privileges Executive
is entitled to use in any other year. The right to travel privileges provided in this Agreement is
not subject to liquidation, cashout, or exchange for any other taxable or nontaxable benefit.
2.3 Mitigation.
Except as otherwise specifically provided herein, Executive shall not be
required to mitigate damages or the amount of any payment provided under this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of employment by another
employer received by Executive or by any retirement benefits received by Executive after the date
of Executive’s termination (i) by the Company for any reason other than Misconduct or Disability,
or (ii) by Executive for Good Reason.
5
2.4 Termination of Employment in Contemplation of a Change in Control
. If payments and
benefits are being made to Executive pursuant to Section 2.1(ii), then the following terms and
conditions shall apply:
(a)
Payments and benefits due upon the Change in Control shall be offset by any amount(s)
received prior thereto or due thereafter as a result of Executive’s termination of employment prior
to the Change in Control.
(b)
In lieu of the benefits provided under Section 2.1(f) and Section 2.2(a), Executive shall
receive an amount equal to the intrinsic value of any stock award forfeited at the time of
Executive’s termination of employment that would have vested on the Change in Control (based on the
value as of the date of the Change in Control) of any stock award (other than exercisable grants)
and, as to exercisable grants, the difference between such stock award’s exercise price and the
value of the stock underlying such award on the date of the Change in Control; provided that such
amounts shall be payable upon the Change in Control if the Change in Control is a 409A Change in
Control and, if such Change in Control is not a 409A Change in Control, such amounts shall be paid,
subject to Section 4.1, in the calendar year following the calendar year in which the termination
occurs at the later of the Change in Control or January 15.
ARTICLE 3
Limitations and Conditions on Benefits
3.1 Release Prior to Payment of Benefits.
In order to be eligible to receive benefits under
this Agreement (other than the amounts due under (i), (ii) and (iii) of Section 2.1(a)), Executive
must execute a general waiver and release in substantially the form attached hereto as Exhibit A,
Exhibit B or Exhibit C, as appropriate, within forty-five (45) days of such termination. The
Company, in its sole discretion, shall determine the form of the required release, which may be
incorporated into a termination agreement or other agreement with Executive, and may modify the
form of the required release to comply with applicable federal or state law.
3.2 Parachute Payments.
If the Company determines that any amounts payable under this
Agreement, either alone or together with other compensation, would be subject to the excise tax
imposed on “excess parachute payments” under Section 4999 of the Code, the Company shall compute
the amount that would be payable to Executive if the total amounts that are payable to Executive by
the Company and are considered “parachute payments” for purposes of Code Section 280G (“Parachute
Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections
280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped
Amount”). The Company will also compute the amount that would be payable under the Agreement
without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the
“Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped
Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are
considered Parachute Payments and are payable to Executive under this Agreement will be reduced to
the Capped Amount. If the Capped Amount is to be paid, payments shall be reduced in the following
order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other
cash
6
amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv)
acceleration of vesting on any stock awards for which the exercise price exceeds the then fair
market value and (v) acceleration of vesting of any equity not covered by section (iv) above,
unless Executive elects another method of reduction of written notice to the Company prior to a
Change in Control.
If, after application of the preceding paragraph, any payments, distributions or benefits
Executive would receive from the Company or otherwise, but determined without regard to any
additional payment required under this Section 3.2, pursuant to the terms of this Agreement
(“Payments”), would (i) constitute Parachute Payments, and (ii) be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties payable with respect to such
excise tax (such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive from the
Company an additional payment (the “Gross-Up Payment”) in an amount that shall fund the payment by
Executive of any Excise Tax on the Payments as well as all income and employment taxes imposed on
the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties
imposed with respect to income and employment taxes imposed on the Gross-Up Payment.
The accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change in Control, or a nationally recognized accounting firm of the
Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company and Executive within
fifteen (15) calendar days after the date on which Executive’s right to the Payments is triggered
(if requested at that time by the Company or Executive) or such other time as requested by the
Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect
to the Payments, it shall furnish the Company and Executive with an opinion reasonably acceptable
to Executive that no Excise Tax will be imposed with respect to such Payments. Any good faith
determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
the Company and Executive. Any Gross-Up Payment to which Executive becomes entitled under this
Section 3.2 shall be made to Executive no later than the calendar year next following the calendar
year in which Executive remits the taxes to which such Gross-Up Payment relates.
3.3 Certain Reductions and Offsets.
The Company, in its sole discretion, shall have the
authority to reduce Executive’s severance benefits, other than Executive’s right to the travel
privileges under Section 2.2(b) or any Gross-Up Payment under Section 3.2, in whole or in part, by
any other severance benefits, pay in lieu of notice, or other similar benefits payable to Executive
by the Company that become payable in connection with Executive’s termination of employment
pursuant to (i) any applicable legal requirement, including, without limitation, the Worker
Adjustment and Retraining Notification Act (the “WARN Act”), (ii) a written employment or severance
agreement with the Company, or (iii) any Company policy or practice providing for Executive to
remain on the payroll for a limited period of time after being given
7
notice of the termination of Executive’s employment. The benefits provided under this
Agreement are intended to satisfy, in whole or in part, any and all statutory obligations that may
arise out of Executive’s termination of employment, and the Company shall so construe and enforce
the terms of this Agreement. The Company’s decision to apply such reductions to the severance
benefits of one Executive and the amount of such reductions shall in no way obligate the Company to
apply the same reductions in the same amounts to the severance benefits of any other Executive,
even if similarly situated. In the Company’s sole discretion, such reductions may be applied on a
retroactive basis, with severance benefits previously paid being recharacterized as payments
pursuant to the Company’s statutory obligation.
3.4 Restrictive Covenants.
In order to be eligible to receive benefits under this Agreement,
Executive must comply with the requirements set forth in this Section 3.4. In the event Executive
fails to satisfy these requirements, the Company shall have no obligation to pay or to continue the
benefits provided under this Agreement.
(a) Return of Documents and Property.
Promptly upon the date on which Executive’s employment
with the Company terminates, Executive shall return to the Company all of the Company’s property
(or the property of an affiliated company) of any kind, including but not limited to, business
plans, financial records, computer hardware, computer software, documents, data, books, memoranda,
notes, sketches, audio-visual materials, correspondence, lists, pricing information, customer
and/or vendor lists or information, and all other tangible property. Notwithstanding the
foregoing, Executive shall be permitted to retain Executive’s personal address book.
(b) Non-Solicitation of Employees.
Executive agrees that for one (1) year after his
employment with the Company terminates, Executive will not, directly or indirectly, solicit or
attempt to recruit or hire, or hire or retain, any employee of the Company (or an affiliated
company) who were employed by the Company (or an affiliated company) at any time during the last
year of Executive’s employment with the Company to provide services for any other person or entity.
(c) No Disparagement.
Executive agrees that for five (5) years after his employment with the
Company terminates, Executive will not make any untrue or disparaging statement or criticism,
written or oral, nor take any action which is adverse to the interests of the Company (or an
affiliated company) or that would cause the Company (or an affiliated company) or its current and
former officers, directors, or employees embarrassment or humiliation or otherwise cause or
contribute to such persons being held in disrepute by the public or the Company’s customers or
employees. From and after the date on which Executive’s employment with the Company terminates,
Executive shall refrain from discussing the terms and conditions of the termination of his
employment with any employee or customer of the Company (or an affiliated company) or with any
reporter, media contacts or any form of public media, unless such communication is previously
approved by the General Counsel of the Company.
(d) Nondisclosure of Trade Secrets and Proprietary Information.
Except to the extent
reasonably necessary for Executive to perform his duties for the Company, Executive shall not,
directly or indirectly, furnish or disclose to any person, or use in any way, any trade secrets of
the Company (or an affiliated company), for so long as such trade secrets
8
remain “trade secrets” under applicable state law. Except to the extent reasonably necessary
for Executive to perform his duties for the Company, Executive shall not, during his employment
with the Company or following the date on which Executive’s employment with the Company terminates,
directly or indirectly, furnish or disclose to any person, or use in any way, for personal benefit
or the benefit of others, any Proprietary Information of the Company (or an affiliated company).
3.5 Termination on Account of Death.
In no event shall a termination on account of
Executive’s death entitle Executive or any of his or her heirs or beneficiaries to any benefits
under this Agreement.
3.6 Forfeiture; Repayment
. If Executive materially breaches Sections 3.4(a)-(d), then
Executive shall (i) forfeit any and all rights to any future payments or benefits to be made or
provided under this Agreement and (ii) reimburse the Company for all payments made and the value of
all benefits received by Executive and Executive’s dependents (if any) up to and through the date
of such breach, with interest at the prime rate published by the Wall Street Journal on the date
the Company sends written demand for reimbursement, compounded annually, from the date such
payments or benefits were made until the date of repayment.
3.7 Termination of Certain Other Benefits.
All other benefits (such as qualified retirement
plan participation) shall terminate as of Executive’s termination date.
3.8 Non-Duplication of Benefits.
Executive is not eligible to receive benefits under this
Agreement more than one time.
3.9 Remedies
. Executive recognizes that any breach of this Section 3 shall cause irreparable
injury to the Company or its affiliates, inadequately compensable in monetary damages.
Accordingly, in addition to any other legal or equitable remedies that may be available to the
Company, Executive agrees that the Company or its affiliates shall be able to seek and obtain
injunctive relief in the form of a temporary restraining order, preliminary injunction, or
permanent injunction against Executive to enforce this Agreement. Any recovery of damages by the
Company and its affiliates shall be in addition to and not in lieu of the injunctive and other
relief and remedies to which the Company and its affiliates are entitled under Sections 3.6, 3.7,
3.9 or otherwise.
ARTICLE 4
Time of Payment and Form of Benefit
4.1 Code Section 409A and Time of Payments.
(a) It is intended that the provisions of this
Agreement comply with Code Section 409A, and all provisions of this Agreement shall be construed in
a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
If any provision of this Agreement (or of any award of compensation, including equity compensation
or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A,
the Company shall, after consulting with Executive, reform such provision to comply with Code
Section 409A, provided that the Company agrees to maintain, to the maximum extent practicable, the
original intent and
9
economic benefit to Executive of the applicable provision without violating the provisions of
Code Section 409A. The Company shall timely amend any separation payment plan or program in which
Executive participates to bring it in compliance with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or benefits upon or following
a termination of employment unless such termination is also a “separation from service” (within the
meaning of Code Section 409A) and, for purposes of any such provision of this Agreement, references
to a “termination” or “termination of employment” shall mean separation from service. If Executive
is deemed on the date of termination of her employment to be a “specified employee,” within the
meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology
selected by the Company from time to time (or if none, the default methodology), then with regard
to any payment or the providing of any benefit made pursuant to this Agreement, including without
limitation the severance payments under Sections 2.1(b)-(e), and any other payment or the provision
of any other benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B),
such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of
the six-month period measured from the date of Executive’s separation from service or (ii) the date
of Executive’s death. On the first day of the seventh month following the date of Executive’s
separation from service or, if earlier, on the date of Executive’s death, all payments delayed
pursuant to this Section 4.1(b) (whether they would have otherwise been payable in a single sum or
in installments in the absence of such delay) shall be paid or reimbursed to Executive in a lump
sum, with interest. The rate of interest shall be the short term federal rate applicable under
Section 7872(f)(2)(A) of the Code for the month in which the Executive’s termination date occurs.
Any remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(c) With regard to any provision herein that provides for reimbursement of expenses or in-kind
benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible
for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year,
provided
that the foregoing clause (ii) shall not be violated with regard to expenses
reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses
are subject to a limit related to the period the arrangement is in effect.
4.2 Gross-Up Payment to Specified Employees.
If Executive is a specified employee (within the
meaning of Code Section 409A(a)(2)(B)) on the date Executive incurred a “separation from service”
(within the meaning of Code Section 409A), then, notwithstanding anything in Sections 3.2 or 4.1 of
the Agreement to the contrary, any Gross-Up Payment to which the Executive becomes entitled shall
be paid to Executive promptly and in no event later than the end of the calendar year next
following the calendar year in which the Excise Tax is paid by Executive.
4.3 Travel Privileges to Specified Employees.
If Executive is a specified employee (within
the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code and the regulations thereunder)
on the date his employment with the Company terminates, Executive will not be
10
entitled to the travel privileges described in Section 2.1 of the Agreement until six (6)
months following his termination of employment with the Company.
4.4 Tax Withholding.
All payments under this Agreement shall be subject to applicable
withholding for federal, state, and local taxes.
ARTICLE 5
General Provisions
5.1 Employment Status.
Nothing in this Agreement alters the at-will nature of Executive’s
employment. Either the Company or Executive can terminate the employment relationship at any time,
with or without cause and with or without advance notice. This at-will employment relationship can
only be modified in a writing signed by Executive and a duly authorized Company representative.
5.2 Notices.
Any notices provided hereunder must be in writing, and such notices or any other
written communication shall be deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third (3rd) day after mailing by first class mail, to the
Company at its primary office location and to Executive at Executive’s address as listed in the
Company’s payroll records. Any payments made by the Company to Executive under the terms of this
Agreement shall be delivered to Executive either in person or at the address as listed in the
Company’s payroll records.
5.3 Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never
been contained herein.
5.4 Waiver.
If any party should waive any breach of any provisions of this Agreement, the
party shall not thereby be deemed to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
5.5 Complete Agreement.
With the exception of any written agreement that provides for
payments upon a termination of employment not in connection with a Change in Control or 409A Change
in Control, this Agreement, including Exhibit A, Exhibit B and Exhibit C, constitutes the entire
agreement between Executive and the Company and is the complete, final, and exclusive embodiment of
their agreement with regard to this subject matter, and it supersedes any other agreements or
promises made to Executive by the Company, whether oral, written or implied, regarding payments and
benefits to Executive in the event of employment termination. The Agreement is entered into
without reliance on any promise or representation other than those expressly contained herein.
5.6 Term.
Unless terminated pursuant to Section 5.7, this Agreement shall remain in effect
for a two-year period ending on the second anniversary date of the Effective Date (the
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“Initial Term”). The Agreement shall automatically be renewed and shall continue for
successive terms of two-years, unless the Company provides Executive with written notice to the
contrary at least 180 days prior to the expiration of the Initial Term or any succeeding term.
Notwithstanding the foregoing, this Section 5.6 may not be amended, modified or terminated without
Executive’s prior written consent (unless required by applicable law) (i) during the 180-day prior
to any Change in Control or (ii) at any time following any Change in Control and any such amendment
or modification shall be null and void.
5.7 Amendment or Termination.
This Agreement may be changed or terminated only upon the
mutual written consent of the Company and Executive. Notwithstanding any provision to the
contrary, this Agreement shall terminate when Executive ceases to be employed by the Company or by
any surviving or successor entity following any Change in Control.
5.8 Counterparts.
This Agreement may be executed in separate counterparts, any one of which
need not contain signatures of more than one party, but all of which taken together will constitute
one and the same Agreement.
5.9 Headings.
The headings of the Articles and Sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
5.10 Successors and Assigns.
This Agreement is intended to bind and inure to the benefit of
and be enforceable by Executive and the Company, and any surviving entity resulting from a Change
in Control and upon any other person who is a successor by merger, acquisition, consolidation or
otherwise to the business formerly carried on by the Company, and their respective successors,
assigns, heirs, executors and administrators, without regard to whether or not such person
expressly assumes any rights or duties hereunder;
provided, however,
that Executive may not assign
any duties hereunder and may not assign any rights hereunder without the written consent of the
Company, which consent shall not be withheld unreasonably.
5.11 Choice of Law.
All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of New York
,
without regard to such state’s
conflict of laws rules.
5.12 Non-Publication.
Executive agrees not to disclose the terms of this Agreement except to
the extent that disclosure is mandated by applicable law or legal process or disclosure is made to
the Executive’s advisors and agents (
e.g.
, attorneys, accountants), immediate family members or to
inform any future employer of the terms of this Agreement.
5.13 Construction of Agreement.
In the event of a conflict between the text of the Agreement
and any summary, description or other information regarding the Agreement, the text of the
Agreement shall control.
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In Witness Whereof,
the parties have executed this Agreement on the Effective Date
written above.
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US Airways Group, Inc.
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US Airways, Inc.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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[Executive]
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[Name]
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Exhibit A:
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Release (Individual Termination — Age 40 or Older)
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Exhibit B:
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Release (Individual and Group Termination — Under Age 40)
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Exhibit C:
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Release (Group Termination —Age 40 or Older)
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13
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated
, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA and that the consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8
th
) day after I
execute this Release.
A-1
Exhibit B
RELEASE
(Individual and Group Termination — Under Age 40)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated
, 20___, to which I would not
otherwise be entitled, I hereby agree s follows:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Employee Retirement Income Security Act of 1974, as
amended; the federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as
amended; tort law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional
distress; and breach of the implied covenant of good faith and fair dealing.
B-1
Exhibit C
RELEASE
(
Group Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated
, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA and that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing, as required by the ADEA, that:
(A) my waiver and release do not apply to any rights or claims that may arise on or after the date
I execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day (8th) after I execute this
Release; and (F) I have received with this Release an attachment that contains certain demographic
information required by ADEA.
[
ADEA
Attachment to
Exhibit
C
]
C-1
Exhibit 10.4
Executive Change In Control Agreement
For
Senior Vice Presidents
This
Executive Change in Control and Severance Benefits Agreement
(the “Agreement”)
is entered into as of the ______ day of ___________, 20___ (the “Effective Date”), by and among
________________________
___
(“Executive”),
US A
irways Group
, I
nc
.
, a
Delaware corporation (“Group”), and
US A
irways, Inc.
, a Delaware corporation and a
wholly-owned subsidiary of Group (“US Airways” and, together with Group, the “Company”).
Whereas,
certain employees of the Company were parties to Executive Change In Control
and Severance Benefit Agreements with
America West Holdings Corporation
and
America
West Airlines, Inc.
, although those agreements have since expired;
Whereas,
Executive is currently employed by the Company and has made and is expected
to continue to make major contributions to the short- and long-term profitability, growth and
financial strength of the Company; and
Whereas,
the Company wishes to provide additional inducement for Executive to remain
in the ongoing employ of the Company.
ARTICLE 1
Defined Terms
For purposes of the Agreement, the following terms are defined as follows:
1.1 “Base Salary”
means the greater of Executive’s (i) annual base salary immediately
preceding a Change in Control after the Effective Date and (ii) annual base salary as in effect
during the last regularly scheduled payroll period immediately preceding the effective date of
Executive’s termination (x) by the Company for any reason other than Misconduct or Disability, or
(y) by Executive for Good Reason.
1.2 “Board”
means the Board of Directors of Group.
1.3
“Change in Control
” shall occur on the first date after the Effective Date that any of the
following occurs:
(a)
Within any 12-month period, the individuals who constitute the Board at the beginning of
such period (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board;
provided, however,
that any individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by Group’ stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board; or
(b)
any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than
the Company, acquires (directly or indirectly) the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of more than 50% of the combined voting power of the then
outstanding voting securities of Group or US Airways entitled to vote generally in the election of
directors (“Voting Power”); or
(c)
Group or US Airways shall consummate a merger, consolidation or reorganization of Group or
US Airways or any other similar transaction or series of related transactions (collectively, a
“Transaction”) other than (A) a Transaction in which the voting securities of Group or US Airways
outstanding immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent corporation immediately
after such Transaction that are owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least 50% of the Voting Power held by the voting
securities of the surviving corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Group or US Airways (or similar transaction) in which no person
(excluding Group or US Airways or any person who held more than 50% of the Voting Power immediately
prior to such Transaction) acquires more than 50% of the Voting Power; or
(d)
Group or US Airways shall sell or otherwise dispose of, or consummate a transaction or
series of related transactions providing for the sale or other disposition of, all or substantially
all of the stock or assets of US Airways or shall enter into a plan for the complete liquidation of
either Group or US Airways.
1.4 “Code”
means the Internal Revenue Code of 1986, as amended and the regulations promulgated
thereunder.
1.5 “Disability”
means a physical or mental condition of Executive that, in the good faith
judgment of the Company, based upon certification by a licensed physician reasonably acceptable to
Executive and the Company, (i) prevents Executive from being able to perform the material services
required by his or her position with the Company and (ii) has continued for a period of 180 days
during a 365 day period.
1.6 “409A Change in Control”
means a Change in Control that satisfies the requirements of
Section 409A(a)(2)(A)(v) and the regulations with regard thereto.
1.7 “Good Reason”
means any of the following acts or failures to act, but in each case only if
it occurs during the period Executive is employed by the Company and only if it is not consented to
by Executive: (i) a material adverse alteration by the Company in Executive’s compensation,
position, function, duties or responsibilities;
provided, however,
that such alteration shall cease
to be a Good Reason ninety (90) days after the initial occurrence of such alteration unless prior
to such date Executive has given written notice of termination to the Company on account of such
alteration if the Company does not remedy such alteration within thirty days (30) days of its
receipt of such notice (the “Cure Period”) and the Company has not remedied such alteration by the
end of the Cure Period; (ii) the relocation of Executive outside the metropolitan area in which
Executive is based;
provided, however,
that such relocation shall cease to be a Good Reason ninety
(90) days after the occurrence of such relocation unless prior to such date Executive has given
written notice of termination to the Company on account of
2
such relocation and the Company does not remedy such relocation within the Cure Period and the
Company has not remedied such relocation by the end of the Cure Period; or (iii) the failure of the
Company to perform any material obligation owed to Executive; provided, however, that such failure
shall cease to be a Good Reason ninety (90) days after the initial occurrence of such failure
unless prior to such date Executive has given written notice of termination to the Company on
account of such failure and the Company does not remedy such failure within the Cure Period and the
Company has not remedied such failure by the end of the Cure Period.
1.8 “Misconduct”
means one or more of the following:
(a)
the willful and continued failure by Executive to perform his or her duties (other than
any such failure resulting from Executive’s incapacity due to physical or mental illness) after
written notice of such failure has been given to Executive by the Company and Executive has had a
reasonable period (but not more than fifteen (15) days) after receipt of such notice to correct
such failure;
(b)
the unlawful or willful commission by Executive of any act that is dishonest and
demonstrably injurious to Group, US Airways or any direct or indirect subsidiary of Group
(monetarily or otherwise) in any material respect;
(c)
the conviction of, or plea of guilty or
nolo contendere
to, a felony offense by Executive;
(d)
habitual drug or alcohol abuse that impairs Executive’s ability to perform the essential
duties of his position or the use of illegal drugs on the Company’s premises;
(e)
embezzlement, fraud or any other illegal act against the Company or any illegal act
committed in connection with Executive’s performance of his duties; or
(f)
any material breach by Executive of any material Company policy (other than inadvertent
actions taken in good faith), including without limitation the Company’s code of conduct and those
policies regarding ethics, unlawful harassment, workplace safety, or workplace discrimination.
(g)
a material breach by Executive of this Agreement or any other agreements between the
Company and Executive, but only if such breach shall continue unremedied for more than fifteen (15)
days after written notice thereof is given to Executive by the Company.
1.9 “Proprietary Information”
Proprietary Information means information that meets the
definition of “trade secret” under the laws of the State of New York, as well as any scientific or
technical information, design, process, procedure, formula or improvement that is secret and of
value, information that the Company (or an affiliated company) takes reasonable efforts to protect
from disclosure and from which the Company (or an affiliated company) derives actual or potential
economic value due to its confidential nature, including, but not limited to, technical or
nontechnical data, formulas, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, lists of actual or potential customers, price lists, business plans,
customer and vendor records, training and operations materials and memoranda, personnel records,
financial information relating to the business of the Company (or an affiliated
3
company), accounts, customers, vendors, employees and affairs of the Company (or an affiliated
company), and any information marked “confidential” by the Company (or an affiliated company).
ARTICLE 2
Benefits
2.1 Benefits Upon Certain Terminations Following a Change in Control.
If, (i) within
twenty-four (24) months following the date of a Change in Control, Executive (x) is terminated by
the Company for any reason other than Misconduct or Disability or (y) terminates employment with
the Company for Good Reason or (ii) subject to Section 2.4 hereof, if a Change in Control occurs
and Executive has been terminated by the Company for any reason other than Misconduct or Disability
prior to such Change in Control and Executive can reasonably demonstrate that the termination was
at the request of a third party who was taking steps reasonably calculated to effect such Change in
Control (or such termination otherwise occurs in contemplation of such Change in Control), then
Executive shall receive, in accordance with Section 4.1 below, the following benefits:
(a) Payment of Accrued Obligations.
Executive shall receive in the event of any termination
(i) all accrued but unpaid Base Salary through Executive’s employment termination date, (ii) all
unused vacation time accrued by Executive as of such termination date, (iii) any unpaid or
unreimbursed expenses, (iv) any benefits provided under the Company’s employee benefit plans upon a
termination of employment, in accordance with the terms contained therein, and (v) unless Executive
is terminated by the Company for Misconduct, any unpaid bonus under the Company’s annual cash
incentive program in respect to any completed fiscal year which has ended prior to the date of such
termination, which amount shall be paid at such time annual bonuses are paid to other executives of
the Company, but in no event later than March 15 of the calendar year following the year to which
the bonus relates.
(b) Base Salary.
Executive shall receive an amount equal to two times Executive’s Base
Salary.
(c) Annual Bonus.
Executive shall receive an amount equal to the greater of either (i) (x)
100% of Executive’s target bonus under the Company’s annual cash incentive program, if then in
effect, for the year of such termination, and (y) if such program is not then in effect and its
suspension or termination constituted a Good Reason basis for Executive’s termination of
employment, 100% of Executive’s target bonus under such program immediately prior to its suspension
or termination or (ii) Executive’s actual bonus for the immediately preceding year.
(d) Long Term Incentive Plan.
Executive shall receive in respect of the US Airways Group,
Inc. Performance-Based Award Program, or any similar long-term incentive compensation program (the
“LTIP”), either (i) if the LTIP is in effect on Executive’s employment termination date, an amount
equal to 100% of Executive’s target award under the LTIP, or (ii) if the LTIP is not in effect on
Executive’s employment termination date and its suspension or termination constituted a Good Reason
basis for Executive’s termination of
4
employment, an amount equal to 100% of the target award most recently established for Executive
under the LTIP. Capitalized terms in the preceding sentence that are not defined in this Agreement
shall have the definition assigned to such terms in the LTIP.
(e) Continued Health Coverage Payment.
Provided Executive is eligible to elect COBRA
continuation coverage under the Company’s group health plan upon his termination, the Company shall
pay to Executive a lump sum cash amount equivalent to the cost of COBRA continuation coverage
premiums for the Executive and his covered dependents for twenty-four (24) months following the
effective date of such termination, regardless of whether the Executive and/or his covered
dependents actually elect COBRA continuation coverage.
(f) Extended Exercisability of Stock Awards.
Executive shall be entitled to exercise his or
her outstanding stock appreciation rights, stock options, and other similar stock awards granted
pursuant the US Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, to the
extent such awards are vested, until the earlier of (i) the expiration or other termination (other
than related to Executive’s termination of employment) of the term of such awards as provided in
the agreement under which such awards were granted, and (ii) eighteen (18) months after Executive’s
termination of employment.
2.2 Benefits Upon a Change in Control.
In the event of a Change in Control while Executive is
employed by the Company, Executive shall receive the following benefits:
(a) Acceleration of Equity Vesting.
All outstanding stock awards granted pursuant to the US
Airways Group, Inc. 2005 Equity Incentive Plan, or any successor plan, and then held by Executive
shall become immediately vested effective upon such Change in Control.
(b) Flight Privileges.
Upon termination of employment with the Company, subject to Section
4.3 of this Agreement, Executive shall receive the right to top priority, first class, positive
space travel privileges for business and pleasure for Executive and his eligible family members,
pursuant to the terms and conditions of the Company’s travel policy for officers as amended from
time to time. Travel privileges will be provided by US Airways or, if US Airways did not survive
the Change in Control, by the airline which survived the Change in Control, and will continue for
Executive’s lifetime. Executive’s right to travel privileges shall be subject to all applicable
taxes pursuant to the Company’s then existing tax policies, and the Company will not provide any
tax gross-up payments to Executive for taxes payable on such travels. The amount of travel
privileges used by Executive in one year will not affect the amount of travel privileges Executive
is entitled to use in any other year. The right to travel privileges provided in this Agreement is
not subject to liquidation, cashout, or exchange for any other taxable or nontaxable benefit.
2.3 Mitigation.
Except as otherwise specifically provided herein, Executive shall not be
required to mitigate damages or the amount of any payment provided under this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by Executive as a result of employment by another
employer received by Executive or by any retirement benefits received by Executive after the date
of Executive’s termination (i) by the Company for any reason other than Misconduct or Disability,
or (ii) by Executive for Good Reason.
5
2.4 Termination of Employment in Contemplation of a Change in Control
. If payments and
benefits are being made to Executive pursuant to Section 2.1(ii), then the following terms and
conditions shall apply:
(a)
Payments and benefits due upon the Change in Control shall be offset by any amount(s)
received prior thereto or due thereafter as a result of Executive’s termination of employment prior
to the Change in Control.
(b)
In lieu of the benefits provided under Section 2.1(f) and Section 2.2(a), Executive shall
receive an amount equal to the intrinsic value of any stock award forfeited at the time of
Executive’s termination of employment that would have vested on the Change in Control (based on the
value as of the date of the Change in Control) of any stock award (other than exercisable grants)
and, as to exercisable grants, the difference between such stock award’s exercise price and the
value of the stock underlying such award on the date of the Change in Control; provided that such
amounts shall be payable upon the Change in Control if the Change in Control is a 409A Change in
Control and, if such Change in Control is not a 409A Change in Control, such amounts shall be paid,
subject to Section 4.1, in the calendar year following the calendar year in which the termination
occurs at the later of the Change in Control or January 15.
ARTICLE 3
Limitations and Conditions on Benefits
3.1 Release Prior to Payment of Benefits.
In order to be eligible to receive benefits under
this Agreement (other than the amounts due under (i), (ii) and (iii) of Section 2.1(a)), Executive
must execute a general waiver and release in substantially the form attached hereto as Exhibit A,
Exhibit B or Exhibit C, as appropriate, within forty-five (45) days of such termination. The
Company, in its sole discretion, shall determine the form of the required release, which may be
incorporated into a termination agreement or other agreement with Executive, and may modify the
form of the required release to comply with applicable federal or state law.
3.2 Parachute Payments.
If the Company determines that any amounts payable under this
Agreement, either alone or together with other compensation, would be subject to the excise tax
imposed on “excess parachute payments” under Section 4999 of the Code, the Company shall compute
the amount that would be payable to Executive if the total amounts that are payable to Executive by
the Company and are considered “parachute payments” for purposes of Code Section 280G (“Parachute
Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections
280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped
Amount”). The Company will also compute the amount that would be payable under the Agreement
without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the
“Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped
Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are
considered Parachute Payments and are payable to Executive under this Agreement will be reduced to
the Capped Amount. If the Capped Amount is to be paid, payments shall be reduced in the following
order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other
cash
6
amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv) acceleration of
vesting on any stock awards for which the exercise price exceeds the then fair market value and (v)
acceleration of vesting of any equity not covered by section (iv) above, unless Executive elects
another method of reduction of written notice to the Company prior to a Change in Control.
If, after application of the preceding paragraph, any payments, distributions or benefits
Executive would receive from the Company or otherwise, but determined without regard to any
additional payment required under this Section 3.2, pursuant to the terms of this Agreement
(“Payments”), would (i) constitute Parachute Payments, and (ii) be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties payable with respect to such
excise tax (such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive from the
Company an additional payment (the “Gross-Up Payment”) in an amount that shall fund the payment by
Executive of any Excise Tax on the Payments as well as all income and employment taxes imposed on
the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties
imposed with respect to income and employment taxes imposed on the Gross-Up Payment.
The accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change in Control, or a nationally recognized accounting firm of the
Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company and Executive within
fifteen (15) calendar days after the date on which Executive’s right to the Payments is triggered
(if requested at that time by the Company or Executive) or such other time as requested by the
Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect
to the Payments, it shall furnish the Company and Executive with an opinion reasonably acceptable
to Executive that no Excise Tax will be imposed with respect to such Payments. Any good faith
determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
the Company and Executive. Any Gross-Up Payment to which Executive becomes entitled under this
Section 3.2 shall be made to Executive no later than the calendar year next following the calendar
year in which Executive remits the taxes to which such Gross-Up Payment relates.
3.3 Certain Reductions and Offsets.
The Company, in its sole discretion, shall have the
authority to reduce Executive’s severance benefits, other than Executive’s right to the travel
privileges under Section 2.2(b) or any Gross-Up Payment under Section 3.2, in whole or in part, by
any other severance benefits, pay in lieu of notice, or other similar benefits payable to Executive
by the Company that become payable in connection with Executive’s termination of employment
pursuant to (i) any applicable legal requirement, including, without limitation, the Worker
Adjustment and Retraining Notification Act (the “WARN Act”), (ii) a written employment or severance
agreement with the Company, or (iii) any Company policy or practice providing for Executive to
remain on the payroll for a limited period of time after being given
7
notice of the termination of Executive’s employment. The benefits provided under this Agreement
are intended to satisfy, in whole or in part, any and all statutory obligations that may arise out
of Executive’s termination of employment, and the Company shall so construe and enforce the terms
of this Agreement. The Company’s decision to apply such reductions to the severance benefits of
one Executive and the amount of such reductions shall in no way obligate the Company to apply the
same reductions in the same amounts to the severance benefits of any other Executive, even if
similarly situated. In the Company’s sole discretion, such reductions may be applied on a
retroactive basis, with severance benefits previously paid being recharacterized as payments
pursuant to the Company’s statutory obligation.
3.4 Restrictive Covenants.
In order to be eligible to receive benefits under this Agreement,
Executive must comply with the requirements set forth in this Section 3.4. In the event Executive
fails to satisfy these requirements, the Company shall have no obligation to pay or to continue the
benefits provided under this Agreement.
(a) Return of Documents and Property.
Promptly upon the date on which Executive’s employment
with the Company terminates, Executive shall return to the Company all of the Company’s property
(or the property of an affiliated company) of any kind, including but not limited to, business
plans, financial records, computer hardware, computer software, documents, data, books, memoranda,
notes, sketches, audio-visual materials, correspondence, lists, pricing information, customer
and/or vendor lists or information, and all other tangible property. Notwithstanding the
foregoing, Executive shall be permitted to retain Executive’s personal address book.
(b) Non-Solicitation of Employees.
Executive agrees that for one (1) year after his
employment with the Company terminates, Executive will not, directly or indirectly, solicit or
attempt to recruit or hire, or hire or retain, any employee of the Company (or an affiliated
company) who were employed by the Company (or an affiliated company) at any time during the last
year of Executive’s employment with the Company to provide services for any other person or entity.
(c) No Disparagement.
Executive agrees that for five (5) years after his employment with the
Company terminates, Executive will not make any untrue or disparaging statement or criticism,
written or oral, nor take any action which is adverse to the interests of the Company (or an
affiliated company) or that would cause the Company (or an affiliated company) or its current and
former officers, directors, or employees embarrassment or humiliation or otherwise cause or
contribute to such persons being held in disrepute by the public or the Company’s customers or
employees. From and after the date on which Executive’s employment with the Company terminates,
Executive shall refrain from discussing the terms and conditions of the termination of his
employment with any employee or customer of the Company (or an affiliated company) or with any
reporter, media contacts or any form of public media, unless such communication is previously
approved by the General Counsel of the Company.
(d) Nondisclosure of Trade Secrets and Proprietary Information.
Except to the extent
reasonably necessary for Executive to perform his duties for the Company, Executive shall not,
directly or indirectly, furnish or disclose to any person, or use in any way, any trade secrets of
the Company (or an affiliated company), for so long as such trade secrets
8
remain “trade secrets” under applicable state law. Except to the extent reasonably necessary for
Executive to perform his duties for the Company, Executive shall not, during his employment with
the Company or following the date on which Executive’s employment with the Company terminates,
directly or indirectly, furnish or disclose to any person, or use in any way, for personal benefit
or the benefit of others, any Proprietary Information of the Company (or an affiliated company).
3.5 Termination on Account of Death.
In no event shall a termination on account of
Executive’s death entitle Executive or any of his or her heirs or beneficiaries to any benefits
under this Agreement.
3.6 Forfeiture; Repayment
. If Executive materially breaches Sections 3.4(a)-(d), then
Executive shall (i) forfeit any and all rights to any future payments or benefits to be made or
provided under this Agreement and (ii) reimburse the Company for all payments made and the value of
all benefits received by Executive and Executive’s dependents (if any) up to and through the date
of such breach, with interest at the prime rate published by the Wall Street Journal on the date
the Company sends written demand for reimbursement, compounded annually, from the date such
payments or benefits were made until the date of repayment.
3.7 Termination of Certain Other Benefits.
All other benefits (such as qualified retirement
plan participation) shall terminate as of Executive’s termination date.
3.8 Non-Duplication of Benefits.
Executive is not eligible to receive benefits under this
Agreement more than one time.
3.9 Remedies
. Executive recognizes that any breach of this Section 3 shall cause irreparable
injury to the Company or its affiliates, inadequately compensable in monetary damages.
Accordingly, in addition to any other legal or equitable remedies that may be available to the
Company, Executive agrees that the Company or its affiliates shall be able to seek and obtain
injunctive relief in the form of a temporary restraining order, preliminary injunction, or
permanent injunction against Executive to enforce this Agreement. Any recovery of damages by the
Company and its affiliates shall be in addition to and not in lieu of the injunctive and other
relief and remedies to which the Company and its affiliates are entitled under Sections 3.6, 3.7,
3.9 or otherwise.
ARTICLE 4
Time of Payment and Form of Benefit
4.1 Code Section 409A and Time of Payments.
(a) It is intended that the provisions of this
Agreement comply with Code Section 409A, and all provisions of this Agreement shall be construed in
a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
If any provision of this Agreement (or of any award of compensation, including equity compensation
or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A,
the Company shall, after consulting with Executive, reform such provision to comply with Code
Section 409A, provided that the Company agrees to maintain, to the maximum extent practicable, the
original intent and
9
economic benefit to Executive of the applicable provision without violating the provisions of Code
Section 409A. The Company shall timely amend any separation payment plan or program in which
Executive participates to bring it in compliance with Code Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or benefits upon or following
a termination of employment unless such termination is also a “separation from service” (within the
meaning of Code Section 409A) and, for purposes of any such provision of this Agreement, references
to a “termination” or “termination of employment” shall mean separation from service. If Executive
is deemed on the date of termination of her employment to be a “specified employee,” within the
meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology
selected by the Company from time to time (or if none, the default methodology), then with regard
to any payment or the providing of any benefit made pursuant to this Agreement, including without
limitation the severance payments under Sections 2.1(b)-(e), and any other payment or the provision
of any other benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B),
such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of
the six-month period measured from the date of Executive’s separation from service or (ii) the date
of Executive’s death. On the first day of the seventh month following the date of Executive’s
separation from service or, if earlier, on the date of Executive’s death, all payments delayed
pursuant to this Section 4.1(b) (whether they would have otherwise been payable in a single sum or
in installments in the absence of such delay) shall be paid or reimbursed to Executive in a lump
sum, with interest. The rate of interest shall be the short term federal rate applicable under
Section 7872(f)(2)(A) of the Code for the month in which the Executive’s termination date occurs.
Any remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(c) With regard to any provision herein that provides for reimbursement of expenses or in-kind
benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible
for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year,
provided
that the foregoing clause (ii) shall not be violated with regard to expenses
reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses
are subject to a limit related to the period the arrangement is in effect.
4.2 Gross-Up Payment to Specified Employees.
If Executive is a specified employee (within the
meaning of Code Section 409A(a)(2)(B)) on the date Executive incurred a “separation from service”
(within the meaning of Code Section 409A), then, notwithstanding anything in Sections 3.2 or 4.1 of
the Agreement to the contrary, any Gross-Up Payment to which the Executive becomes entitled shall
be paid to Executive promptly and in no event later than the end of the calendar year next
following the calendar year in which the Excise Tax is paid by Executive.
4.3 Travel Privileges to Specified Employees.
If Executive is a specified employee (within
the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code and the regulations thereunder)
on the date his employment with the Company terminates, Executive will not be
10
entitled to the travel privileges described in Section 2.1 of the Agreement until six (6) months
following his termination of employment with the Company.
4.4 Tax Withholding.
All payments under this Agreement shall be subject to applicable
withholding for federal, state, and local taxes.
ARTICLE 5
General Provisions
5.1 Employment Status.
Nothing in this Agreement alters the at-will nature of Executive’s
employment. Either the Company or Executive can terminate the employment relationship at any time,
with or without cause and with or without advance notice. This at-will employment relationship can
only be modified in a writing signed by Executive and a duly authorized Company representative.
5.2 Notices.
Any notices provided hereunder must be in writing, and such notices or any other
written communication shall be deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third (3rd) day after mailing by first class mail, to the
Company at its primary office location and to Executive at Executive’s address as listed in the
Company’s payroll records. Any payments made by the Company to Executive under the terms of this
Agreement shall be delivered to Executive either in person or at the address as listed in the
Company’s payroll records.
5.3 Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never
been contained herein.
5.4 Waiver.
If any party should waive any breach of any provisions of this Agreement, the
party shall not thereby be deemed to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
5.5 Complete Agreement.
With the exception of any written agreement that provides for
payments upon a termination of employment not in connection with a Change in Control or 409A Change
in Control, this Agreement, including Exhibit A, Exhibit B and Exhibit C, constitutes the entire
agreement between Executive and the Company and is the complete, final, and exclusive embodiment of
their agreement with regard to this subject matter, and it supersedes any other agreements or
promises made to Executive by the Company, whether oral, written or implied, regarding payments and
benefits to Executive in the event of employment termination. The Agreement is entered into
without reliance on any promise or representation other than those expressly contained herein.
5.6 Term.
Unless terminated pursuant to Section 5.7, this Agreement shall remain in effect
for a two-year period ending on the second anniversary date of the Effective Date (the
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“Initial Term”). The Agreement shall automatically be renewed and shall continue for successive
terms of two-years, unless the Company provides Executive with written notice to the contrary at
least 180 days prior to the expiration of the Initial Term or any succeeding term. Notwithstanding
the foregoing, this Section 5.6 may not be amended, modified or terminated without Executive’s
prior written consent (unless required by applicable law) (i) during the 180-day prior to any
Change in Control or (ii) at any time following any Change in Control and any such amendment or
modification shall be null and void.
5.7 Amendment or Termination.
This Agreement may be changed or terminated only upon the
mutual written consent of the Company and Executive. Notwithstanding any provision to the
contrary, this Agreement shall terminate when Executive ceases to be employed by the Company or by
any surviving or successor entity following any Change in Control.
5.8 Counterparts.
This Agreement may be executed in separate counterparts, any one of which
need not contain signatures of more than one party, but all of which taken together will constitute
one and the same Agreement.
5.9 Headings.
The headings of the Articles and Sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
5.10 Successors and Assigns.
This Agreement is intended to bind and inure to the benefit of
and be enforceable by Executive and the Company, and any surviving entity resulting from a Change
in Control and upon any other person who is a successor by merger, acquisition, consolidation or
otherwise to the business formerly carried on by the Company, and their respective successors,
assigns, heirs, executors and administrators, without regard to whether or not such person
expressly assumes any rights or duties hereunder;
provided, however,
that Executive may not assign
any duties hereunder and may not assign any rights hereunder without the written consent of the
Company, which consent shall not be withheld unreasonably.
5.11 Choice of Law.
All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of New York
,
without regard to such state’s
conflict of laws rules.
5.12 Non-Publication.
Executive agrees not to disclose the terms of this Agreement except to
the extent that disclosure is mandated by applicable law or legal process or disclosure is made to
the Executive’s advisors and agents (
e.g.
, attorneys, accountants), immediate family members or to
inform any future employer of the terms of this Agreement.
5.13 Construction of Agreement.
In the event of a conflict between the text of the Agreement
and any summary, description or other information regarding the Agreement, the text of the
Agreement shall control.
12
In Witness Whereof,
the parties have executed this Agreement on the Effective Date
written above.
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US Airways Group, Inc.
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US Airways, Inc.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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[Executive]
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[Name]
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Exhibit A: Release (Individual Termination — Age 40 or Older)
Exhibit B: Release (Individual and Group Termination — Under Age 40)
Exhibit C: Release (Group Termination —Age 40 or Older)
13
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated ___________, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA and that the consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8
th
) day after I
execute this Release.
A-1
Exhibit B
RELEASE
(Individual and Group Termination — Under Age 40)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated ___________, 20___, to which I would not
otherwise be entitled, I hereby agree s follows:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Employee Retirement Income Security Act of 1974, as
amended; the federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as
amended; tort law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional
distress; and breach of the implied covenant of good faith and fair dealing.
B-1
Exhibit C
RELEASE
(
Group Termination — Age 40 or Older)
In consideration of the benefits I will receive under the Executive Change in Control and
Severance Benefits Agreement (the “Agreement”) dated ___________, 20___, to which I would not
otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Company), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Company or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA and that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing, as required by the ADEA, that:
(A) my waiver and release do not apply to any rights or claims that may arise on or after the date
I execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day (8th) after I execute this
Release; and (F) I have received with this Release an attachment that contains certain demographic
information required by ADEA.
[
ADEA
Attachment to
Exhibit
C
]
C-1