EXHIBIT 10.29
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Third Amended and Restated Employment Agreement (hereinafter
referred to as the "Agreement"), between World Airways, Inc., a Delaware
corporation (hereinafter referred to as "World"), and Xxxxx X. Xxxxxxxx, an
individual and resident of Georgia (hereinafter referred to as "Xxxxxxxx"), is
entered into as of the 1st day of November, 2003, and restates, amends, and
replaces in its entirety, without a break in continuity, the Employment
Agreement dated September 1, 1999, as amended on May 1, 2001 and May 1, 2003
between the parties.
WHEREAS, the parties wish to extend the term of Xxxxxxxx' employment
and promote him to President and Chief Operating Officer of World Airways, Inc.
on the terms and subject to the conditions set forth herein, and
NOW, THEREFORE, World and Xxxxxxxx, in consideration of the foregoing
and other mutual covenants and promises contained herein, the sufficiency of
which are hereby acknowledged, hereby agree as follows:
1. Acceptance of Employment. Subject to the terms and conditions
set forth below, World agrees to employ Xxxxxxxx and Xxxxxxxx accepts such
employment.
2. Term. The period of employment shall be from September 1,
1999, through November 1, 2006, unless further extended or sooner terminated as
hereinafter set forth. In the absence of notice, this Agreement shall be renewed
on the same terms and conditions for one year from the date of expiration. Not
later than April 1 2006, Xxxxxxxx shall initiate discussions with World's Board
of Directors (hereinafter "Board")
1
regarding the renewal of this Agreement. At that time, if Xxxxxxxx wishes to
renew this Agreement on different terms, Xxxxxxxx shall give written notice to
the Chairman of the Executive Committee of the Board. If the Board does not wish
to renew this Agreement at its expiration, or wishes to renew on different
terms, the Board shall give written notice to Xxxxxxxx no later than May 1 2006
3. Position and Duties. Xxxxxxxx shall serve as President and
Chief Operating Officer with the duties performed as of the date hereof, as
those duties may be changed from time to time. The Board will have reasonable
latitude to make changes in Xxxxxxxx'x responsibilities, except that Xxxxxxxx'x
responsibilities may not be modified in a way that would be inconsistent with
the status of President and Chief Operating Officer. Following a Change of
Control (as hereinafter defined), Xxxxxxxx'x responsibilities may not be changed
without mutual agreement. Xxxxxxxx agrees to render his services to the best of
his abilities and will comply with all policies, rules and regulations of World
and will advance and promote to the best of his ability the business and welfare
of World. Xxxxxxxx shall devote all of his working time, attention, knowledge
and skills solely to the business and interest of World. Xxxxxxxx may not accept
any other engagement with or without compensation, which would affect his
ability to devote all of his working time and attention to the business and
affairs of World without the prior written approval of the Board pursuant to a
resolution duly adopted by the affirmative vote of a majority of the entire
membership of the Board. Xxxxxxxx agrees to accept assignments on behalf of
World or affiliated companies commensurate with his responsibilities hereunder,
except that the terms and conditions of assignments exceeding 60 consecutive
days outside the Atlanta, Georgia metropolitan area will require mutual
agreement.
4. Compensation and Related Matters.
(a) Base Salary. Xxxxxxxx shall receive a minimum salary
of $225,000 per annum payable in accordance with the payroll procedures for
World's salaried
2
employees in effect during the term of this Agreement.
(b) Performance Stock Options. Xxxxxxxx has been granted
(i) 250,000 options to purchase World's Common Stock, par value $.001 per share
("World Airways Common Stock") pursuant to the 1995 World Airways Stock Option
Plan (the "Plan") as set forth in the Stock Option Agreements between World and
Xxxxxxxx dated April 7, 1999, June 22, 1999, August 9, 1999, March 29, 2000,
October 30, 2000 and February 13, 2003 (together, the "Options" and the "Option
Agreement"). In the event of a Change in Control as defined below, all Options
granted shall be immediately exercisable.
(c) Business Expenses. Xxxxxxxx shall be entitled to
reimbursement of reasonable business related expenses from time to time
consistent with World's policies, including, without limitation, submitting in a
timely manner appropriate documentation of such expenses.
(d) Fringe Benefits. Xxxxxxxx shall be entitled to
participate in all employee benefit plans made available from time to time to
all executives of World in accordance with the terms of such plans. In the event
this Agreement is terminated by either party for any reason other than death or
for cause, Xxxxxxxx may participate in World's health and other benefit programs
for a period of one year from the date of Xxxxxxxx'x termination, or until
Xxxxxxxx obtains comparable coverage, whichever is earlier.
(e) Personnel Policies, Conditions and Benefits. Except
as otherwise provided herein, Xxxxxxxx'x employment shall be subject to the
personnel policies and benefits plans which apply generally to World's employees
as the same may be interpreted, adopted, revised or deleted from time to time,
during the term of this Agreement, by World in its sole discretion. While this
Agreement is in effect, Xxxxxxxx shall accrue vacation at the rate of one month
per year and such vacation shall be
3
taken in accordance with the World's procedures.
(f) Indemnification; D&O Insurance. Subject to Section
6(f) of this Agreement, World shall provide (or cause to be provided) to
Xxxxxxxx indemnification against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlements in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of World) by reason of his being or having been an officer, director or
employee of World or any affiliated entity, advance expenses (including
attorneys' fees) incurred by Xxxxxxxx in defending any such civil, criminal,
administrative or investigative action, suit or proceeding and maintain
directors' and officers' liability insurance coverage (including coverage for
securities-related claims) upon substantially the same terms and conditions as
set forth in the Indemnification Agreement dated April 15, 1999, between
Xxxxxxxx and World Airways, Inc. (the "Indemnity Agreement").
5. Termination of Employment.
(a) Death. Xxxxxxxx'x employment hereunder shall
terminate upon his death, in which event World shall have no further obligation
to Xxxxxxxx or his estate with respect to compensation, other than the
disposition of life insurance and related benefits and accrued and unpaid base
salary and incentive compensation, if any, for periods prior to the date of
termination pursuant to the terms of the respective employee benefits and
incentive compensation plans then in effect.
(b) By World for Disability. If Xxxxxxxx incurs a
disability and such disability continues for a period of twelve (12) consecutive
months, then World may terminate this Agreement upon written notice to Xxxxxxxx,
in which event World shall have no obligation to Xxxxxxxx with respect to
compensation under Section 4(a) of this Agreement. The term "disability" means a
physical or mental illness that will prevent Xxxxxxxx from performing the
essential functions of his job for at least twelve (12)
4
months or is likely to result in death. If Xxxxxxxx becomes entitled to Social
Security benefits payable on account of disability, he will be deemed
conclusively to be disabled for purposes of this Agreement.
(c) By World for Cause. (i) Except under the
circumstances set forth in Section 5(c)(ii) below, the Chairman of the Executive
Committee of the Board pursuant to a resolution duly adopted by the affirmative
vote of a majority of the entire membership of the Board, excluding the vote of
Xxxxxxxx, at a meeting of the Board may terminate this Agreement, subject to
Section 6(f) and those provisions that survive this Agreement, for Cause.
"Cause" shall be defined as (A) sustained performance deficiencies which are
communicated to Xxxxxxxx in written performance appraisals and/or other written
communications (including, but not limited to memos and/or letters) by the
Chairman of the Executive Committee of the Board pursuant to a resolution duly
adopted by the affirmative vote of a majority of the entire membership of the
Board, excluding the vote of Xxxxxxxx, (B) gross misconduct, including
significant acts or omissions constituting dishonesty, intentional wrongdoing or
malfeasance, whether or not relating to the business of World, (C) commission of
a felony or any crime involving fraud or dishonesty, or (D) a material breach of
this Agreement.
(ii) In the event of a Change of Control, as defined below,
Xxxxxxxx may only be terminated for Cause pursuant to a resolution duly adopted
pursuant to a resolution duly adopted by the affirmative vote of a majority of
the entire membership of the Board, at a meeting of the Board finding that, in
the good faith opinion of the Board, Xxxxxxxx was guilty of conduct set forth in
Section 5(c)(i)(A), (B), (C) or (D) provided, however, that Xxxxxxxx may not be
terminated for Cause hereunder unless: (1) Xxxxxxxx receives prior written
notice of World's intention to terminate this Agreement for Cause and the
specific reasons therefore; and (2) Xxxxxxxx has an opportunity to be heard by
World's Board and be given, if the acts are correctable, a reasonable
opportunity to correct the act or acts (or non-action) giving rise to such
written notice. If the Board by resolution duly adopted by the affirmative vote
of a majority of the entire
5
membership of the Board finds that Xxxxxxxx fails to make such correction after
reasonable opportunity to do so, this Agreement may be terminated for Cause.
(d) By World for Other Than Cause. In the event the Board
terminates this Agreement for reasons other than Cause or Disability as defined
in sub-paragraph (c) above, World will pay to Xxxxxxxx within ten (10) days of
notice of termination (or, in the case of incentive bonus compensation, if any,
within ten (10) days of determination of amounts payable under the applicable
bonus plan) twenty-four month's base salary, in each case including deferred
salary and/or bonus compensation, if any, payable under this Agreement. In
addition, all granted but unvested stock Options shall become immediately
exercisable. In the event that any payment to Xxxxxxxx under this paragraph is
subject to any federal or state excise tax, World shall pay to Xxxxxxxx an
additional amount equal to the excise tax imposed including additional federal
and state income and excise taxes as a result of the payments under this
paragraph, and such payment will be made when the excise tax and income taxes
are due; provided, however, that Xxxxxxxx agrees to assist World by using his
best efforts to structure matters so that any payment to Xxxxxxxx under this
paragraph is not subject to any federal or state excise tax. Whether an excise
tax is payable, and the amount of the excise tax and additional income taxes
payable, shall be determined by World's accountants and World shall hold
Xxxxxxxx harmless for any and all taxes, penalties, and interest that may become
due as a result of the failure to properly determine that an excise tax is
payable or the correct amount of the excise tax and additional income taxes,
together with all legal and accounting fees reasonably incurred by Xxxxxxxx in
connection with any dispute with any taxing authority with respect to such
determinations and/or payments. In the event of a disagreement between World and
Xxxxxxxx as to whether the termination was for Cause, that issue shall be
submitted by Xxxxxxxx within twenty (20) days of the notice of termination to
binding arbitration, or any objection to World's determination that termination
is for Cause shall be waived.
6
(e) By Xxxxxxxx for Good Reason. Xxxxxxxx may terminate
his employment hereunder (for purposes of this Agreement "Good Reason") after
giving at least 30 days notice in the event that, without Xxxxxxxx'x consent:
(i) World relocates its general and administrative offices or Xxxxxxxx' place of
employment to an area other than the Atlanta, Georgia Standard Metropolitan
Statistical Area, (ii) he is assigned any duties substantially inconsistent with
Section 3 hereof, (iii) World reduces his annual base salary as in effect on the
date hereof or as the same may be increased from time to time; (iv) World fails,
without Xxxxxxxx' consent, to pay Xxxxxxxx any portion of his current
compensation, or to pay him any portion of an installment of deferred
compensation under any deferred compensation program of World, within seven (7)
days of the date such compensation is due; (v) World fails to continue in effect
any compensation plan in which Xxxxxxxx participates which is material to
Xxxxxxxx'x total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan,
or to continue Xxxxxxxx'x participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in terms of the
amount of benefits provided and the level of Xxxxxxxx'x participation relative
to other participants; (vi) World fails to continue to provide Xxxxxxxx with
benefits substantially similar to those enjoyed by Xxxxxxxx under any of World's
pension, life insurance, medical, health and accident, or disability plans in
which Xxxxxxxx was participating, or World takes any action which would directly
or indirectly materially reduce any of such benefits or deprive Xxxxxxxx of any
material fringe benefit enjoyed by Xxxxxxxx; (vii) World terminates, or proposes
to terminate, Xxxxxxxx'x employment hereunder contrary to the requirements of
Section 5(c) hereof (for purposes of this Agreement, no such termination or
purported termination shall be effective) and Xxxxxxxx has submitted the matter
to arbitration, as set forth in Section 5(d); or with or without Xxxxxxxx'
consent (viii) the Board approves the liquidation or dissolution or Change of
Control of World prior to the end of this Agreement. In the event that Xxxxxxxx
decides to terminate this Agreement and his employment with World or any
successor in interest in accordance with the provisions of this Section 5(e),
World shall have the same obligations as set forth in Section 5(d) hereof. Any
7
other payments due or actions required under this paragraph shall be made as
lump sums or taken within 10 days of termination of the Agreement.
(f) By Xxxxxxxx for Other Than Good Reason.
Notwithstanding the above, Xxxxxxxx may upon giving reasonable notice, not to be
less than six months, terminate this Agreement without further obligation on the
part of Xxxxxxxx or World.
(g) Changes of Control. For purposes of this Agreement, a
"Change of Control" includes the occurrence of any one or more of the following
events:
(i) any Person, other than the World, is or
becomes the Beneficial Owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), directly or indirectly,
of securities of World representing more than 50% of the combined voting power
of World's then outstanding securities; or
(ii) during any period of two (2) consecutive
years (not including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Board of World
and any new director (other than a director designated by a Person who has
entered into an agreement with World to effect a transaction described in clause
(i), (iii) or (iv) or this Section 5 (f)) whose election by the Board of World
or nomination for election by the stockholders of World was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority thereof; or
(iii) the shareholders of World approve a merger
or consolidation of World with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of World outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or
8
being converted into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of World or any of its affiliates, at least 50% of the
combined voting power of the voting securities of World or such surviving entity
outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of World (or similar
transaction) in which no Person acquires more than 50% of the combined voting
power of World's then outstanding securities; or
(iv) the shareholders of World approve a plan of
complete liquidation of World or an agreement for the sale or disposition by
World of all or substantially all of World's assets.
(h) "Person" Defined. For purposes of this Section,
"Person" shall have the meaning given in Section (3)(a)(9) of the Exchange Act,
as modified and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (i) World or WorldCorp, Inc. or any of their subsidiaries or
affiliates; (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of World or WorldCorp, Inc. or any of their subsidiaries;
(iii) an underwriter temporarily holding securities pursuant to an offering of
such securities; or (iv) a corporation owned, directly or indirectly, by the
stockholders of World or WorldCorp, Inc. in substantially the same proportions
as their ownership of stock of World or WorldCorp, Inc.
(i) Notice of Termination. Termination of this Agreement
by World or termination of this Agreement by Xxxxxxxx shall be communicated by
written notice to the other party hereto, specifically indicating the
termination provision relied upon.
(j) World Property. At the termination of Xxxxxxxx'x
employment, whether such termination is voluntary or involuntary, Xxxxxxxx shall
return all World property, including without limitation all electronic and paper
files and documents and all copies thereof.
9
6. Confidentiality/Restrictive Covenant. (a) Xxxxxxxx recognizes
and acknowledges that he will acquire during his employment with World
information that is confidential to World and that represents valuable, special
and unique assets of World ("Confidential Information"). Such Confidential
Information (whether or not reduced to tangible form) includes, but is not
limited to: trade secrets; financing documents and information; financial data;
new product information; copyrights; information relating to schedules and
locations; cost and pricing information; performance features; business
techniques; business methods; business and marketing plans or strategies;
business dealings and arrangements; business objectives; customer information;
sales information; acquisition, merger or business development plans or
strategies; research and development projects; legal documents and information;
personnel information; and any and all other information concerning World's
business and business practices that is not generally known or made available to
the public or to World's competitors which, if misused or disclosed, could
adversely affect the business of World. Xxxxxxxx agrees that he will not, during
employment with World and for a period of two (2) years following termination of
employment for any reason, whether voluntary or involuntary, with or without
Cause, directly or indirectly:
(i) disclose any Confidential Information to any person, World or
other entity (other than authorized persons employed by or
affiliated with World who, in the interest of World, have a
business need to know such information), or
(ii) use any Confidential Information in any way, except as
required by his duties to World or by law, unless he obtains
World's prior written approval of such disclosure or use.
World's rights under this Section shall be cumulative to, and
shall not limit, World's rights under the Georgia Uniform
Trade Secrets Act or any other state or federal trade secret
or unfair competition statute or law. The parties hereto
stipulate that as
10
between them, the foregoing matters are important, material,
and confidential and gravely affect the successful conduct of
the business of World, and World's good will, and that any
breach of the terms of this paragraph shall be a material
breach of this Agreement.
(b) While employed by World and for a period of two (2) years
following termination of employment for any reason, whether voluntary or
involuntary, with or without Cause, Xxxxxxxx agrees that he will not, directly
or indirectly, either as principal, agent, employee, employer, owner,
stockholder (owning more than 5% of a corporation's shares), partner,
contractor, consultant or in any other individual or representative capacity:
(i) Request, induce or attempt to induce any customer of
World: (A) to terminate or curtail any business relationship with World or (B)
to establish or attempt to establish a similar business relationship with a
person or entity other than World;
(ii) Solicit, cause, encourage or in any way assist any
person or entity to solicit, any aviation business from any person or entity who
at such time is, or within the preceding twelve (12) months, had been a customer
of World, unless such customer of World was also already a customer of such
other person or entity on the date of Xxxxxxxx'x termination;
(iii) Induce or attempt to induce any of World's officers,
directors, or employees to terminate their employment or relationship with
World, or induce or attempt to induce any such persons to provide
aviation-related services or services similar to those they provide for World
for any other person, firm or organization.
(c) Xxxxxxxx agrees that the restrictions set forth in this
Agreement are reasonable, proper, and necessitated by legitimate business
interests of World and do not constitute an unlawful or unreasonable restraint
upon Xxxxxxxx'x ability to earn a
11
livelihood. The parties agree that in the event any of the restrictions in this
Agreement are found to be overbroad or unreasonable by a tribunal or court of
competent jurisdiction, the parties agree that this Agreement should be enforced
to the maximum extent allowed by applicable law, and the parties authorize and
request such court or tribunal to determine the maximum time, geographic area,
activity and other applicable limitations allowable by law and to reform the
applicable provisions to such maximum limitations.
(d) Xxxxxxxx acknowledges that it may be impossible to assess the
monetary damages incurred by his violation of this Agreement, or any of its
terms, and that any threatened or actual violation or breach of this Agreement,
or any of its terms, will constitute immediate and irreparable injury to World.
Therefore, Xxxxxxxx expressly agrees that, in addition to any and all monetary
damages and other remedies and relief available to World as a result of
Xxxxxxxx'x violation or breach of this Agreement, World shall be entitled to an
injunction restraining Xxxxxxxx from violating or breaching this Agreement, or
any of its terms (and no bond or other security will be required in connection
therewith); World will be entitled to specific performance of this Agreement;
and World will be entitled to recover its reasonable attorneys' fees and costs
incurred to enforce, or prosecute or defend any action relating to, this
Agreement. In the event World enforces this Agreement through court order or
other decree, Xxxxxxxx agrees that the restrictions contained in this Agreement
shall remain in effect for a period of twenty four (24) consecutive months from
the effective date of such order or decree enforcing the Agreement.
(e) Section 9 of this Agreement, relating to arbitration, shall
not apply to this Section 6. The parties agree that any dispute between them
relating to or involving this Section 6, including without limitation, any
question concerning the construction, validity, application, interpretation or
alleged breach or threatened breach of this Section 6, shall be litigated in a
court in the state in which World maintains its principal executive offices.
12
(f) Section 4(h) of this Agreement and any other indemnity
agreements between Xxxxxxxx and World shall not apply to actions, suits or
proceedings to enforce World's rights under, or that otherwise relate to, this
Agreement, including without limitation, this Section 6.
(g) References in this Section 6 to "World" include World Airways,
Inc. and any and all of its current or future parents, subsidiaries, affiliated
companies, and divisions.
7. Beneficiary. The Beneficiary of any payment due and payable at
the time of Xxxxxxxx'x death, or otherwise due upon his death, shall be such
person or persons as Xxxxxxxx shall designate in writing to World. If no such
beneficiary shall survive Xxxxxxxx, any such payments shall be made to his
estate.
8. Intellectual Property. (a) Any improvements, new techniques,
processes, inventions, works, discoveries, products or copyrightable or
patentable materials made or conceived by Xxxxxxxx, either solely or jointly
with other person(s), (1) during Xxxxxxxx'x period of employment by World,
during working hours; (2) during the period after termination of his employment
during which he is retained by World as a consultant; or (3) with use of World's
intellectual property or Confidential Information, shall be the sole and
exclusive property of World without royalty or other consideration to Xxxxxxxx.
(b) Xxxxxxxx agrees to inform World promptly and in full
of such intellectual property by a full written report setting forth in detail
the procedures used and the results achieved.
(c) Xxxxxxxx shall at World's request and expense execute
any and all applications, assignments, or other instruments which World shall
deem necessary to
13
apply for, register, and/or obtain copyrights or Letters Patent of the United
States or of any foreign country, or to otherwise protect World's interests in
such intellectual property.
(d) Xxxxxxxx shall assign and does hereby assign to World
all interests and rights, including but not limited to copyrights, in any such
intellectual property.
9. Arbitration. Except as described in Section 6, above, any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, under the commercial arbitration rules of
the American Arbitration Association. The prevailing party in any such
arbitration, or any court action to enforce or vacate an arbitration award,
shall be entitled to its costs and reasonable attorneys fees from the other
party.
10. No Waiver. The failure of either party at any time to enforce
any provisions of this Agreement or to exercise any remedy, option, right, power
or privilege provided for herein, or to require the performance by the other
party of any of the provisions hereof, shall in no way be deemed a waiver of
such provision at the same or at any prior or subsequent time.
11. Governing Law. All questions concerning the construction,
validity, application and interpretation of this Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia without giving
effect to any choice of law or conflict of law provision or rule (whether of
Georgia or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than Georgia. Xxxxxxxx agrees to submit to personal
jurisdiction in the state in which World maintains its principal executive
offices.
12. Validity. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not be deemed to affect the validity or
enforceability of any other
14
provision of this Agreement, which shall remain in full force and effect.
13. Successors. This Agreement shall inure to the benefit of and
be binding upon World, its successors and assigns, including any corporation or
other business entity which may acquire all or substantially all of World's
assets or business, or within which World may be consolidated or merged, or any
surviving corporation in a merger involving World.
14. Waiver of Modification of Agreement. No waiver or modification
of this Agreement shall be valid unless in writing and duly executed by both
parties.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
WORLD AIRWAYS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
/s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
15
