EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement between World Airways, Inc., a Delaware
corporation ("World" or the "Company") and Xxxxxxx X. X. Xxxxxxx ("Xxxxxxx") is
entered into this 1st of June 2002.
WHEREAS, Addison has agreed to continue to serve as World's Executive
Vice President Operations as of June 1, 2002.
NOW, THEREFORE, World and Addison, 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 Addison and Addison accepts such employment.
2. Term. The period of employment shall be from June 1, 2002, through
May 31, 2005, 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
December 1, 2004, Addison shall initiate discussions with the Chairman of the
Board (hereinafter "Chairman") regarding the renewal of this Agreement. At that
time, if Addison wishes to renew this Agreement on different terms, Addison
shall give written notice to the Chairman. If the Chairman does not wish to
renew this Agreement at its expiration, or wishes to renew on different terms,
the Chairman shall give written notice to Addison no later than December 1,
2004.
3. Position and Duties. Addison shall continue to serve as Executive
Vice President Operations with the duties performed as of June 1, 2002. The
Chairman will have reasonable latitude to make changes in Addison's
responsibilities, except that Addison's responsibilities may not be modified in
a way that would be inconsistent with the status of Executive Vice President
Operations. Following a Change of Control (as hereinafter defined), Addison's
responsibilities may not be changed without mutual agreement. Addison agrees to
render his services to the best of his abilities and will comply with all
policies, rules and regulations of the company and will advance and promote
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to the best of his ability the business and welfare of the Company. Addison
shall devote all of his working time, attention, knowledge and skills solely to
the business and interests of World. Addison 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 Chairman of the Board. Addison 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, Standard
Metropolitan Statistical Area will require mutual agreement.
4. Compensation and Related Matters.
(a) Base Salary. Addison shall receive a minimum salary of
$175,000 per annum payable in accordance with the payroll procedures for World's
salaried employees in effect during the term of this Agreement. Addison agrees
to participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) Performance Stock Options. Addison has been granted
147,894.55 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
Addison dated May 31, 1995, December 23, 1997, March 29, 2000, October 30, 2000,
and June 1, 2002 (together, the "Options" and the "Option Agreements"). In the
event of a Change in Control as defined below, all Options shall be immediately
exercisable.
(c) Business Expenses. Addison 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. Addison shall be entitled to participate
in all employee benefit
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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, Addison may
participate in World's health and other benefit programs for a period of one
year from the date of Addison's termination, or until Addison obtains comparable
coverage, whichever is earlier.
(e) Personnel Policies, Conditions and Benefits. Except as
otherwise provided herein, Addison's 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, Addison shall receive twenty (20) days of vacation, in
addition to sick leave, holidays, and such other leave as World may provide. All
such vacation and leave shall be taken in accordance with the Company's
procedures.
(f) Indemnification; D&O Insurance. Subject to Section 6(b) of
this Agreement, World shall provide (or cause to be provided) to Addison
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
Addison 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 June 1, 2002, between Addison and World Airways, Inc. (the
"Indemnity Agreement").
5. Termination of Employment.
(a) Death. Addison's employment hereunder shall
terminate upon his death, in
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which event World shall have no further obligation to Addison 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 Addison is unable, or fails,
to perform services pursuant to this agreement through illness or physical or
mental disability and such failure or disability shall exist for twelve (12)
consecutive months, then World may terminate this Agreement upon written notice
to Addison, in which event World shall have no obligation to Addison with
respect to compensation under Section 4(a) of this Agreement. If Addison 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 5(c)(ii) below, the Chairman of the Board may terminate this Agreement
for Cause. "Cause" shall be defined as (A) sustained performance deficiencies
which are communicated to Addison in written performance appraisals and/or other
written communications (including, but not limited to memos and/or letters) by
the Chairman, (B) gross misconduct, including significant acts or omissions
constituting dishonesty, intentional wrongdoing or malfeasance, whether or not
relating to the business of World, or (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, Addison
may only be terminated for Cause 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,
Addison was guilty of conduct set forth in 5(c)(i)(A), or (B), provided,
however, that Addison may not be terminated for Cause hereunder unless: (1)
Addison receives prior written notice of World's intention to terminate this
Agreement for Cause and the specific reasons therefore; and (2) Addison
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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 membership of the Board, finds
that Addison 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 Addison 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) eighteen months base salary, in each case including deferred salary
and/or bonus compensation, if any, payable under this Agreement. In addition,
all granted but unvested Options under the Option Agreements shall become
immediately exercisable. In the event that any payment to Addison under this
paragraph is subject to any federal or state excise tax, World shall pay to
Addison 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 Addison agrees to assist World
Airways by using his best efforts to structure matters so that any payment to
Addison 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 Addison harmless from 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 Addison in connection with any dispute with any taxing authority
with respect to such determinations and/or payments.
(e) By Addison for Good Reason. Addison may terminate his
employment hereunder (for
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purposes of this Agreement "Good Reason") after giving at least 30 days notice
in the event that, without Addison's consent, (i) World relocates its general
and administrative offices or Addison's 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, except as provided in Section 4(a)
above; (iv) World fails, without Addison's consent, to pay Addison 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 Addison participates which is material
to Addison's 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 Addison's 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 Addison's participation relative to
other participants; (vi) World fails to continue to provide Addison with
benefits substantially similar to those enjoyed by Addison under any of World's
pension, life insurance, medical, health and accident, or disability plans in
which Addison was participating, World takes any action which would directly or
indirectly materially reduce any of such benefits or deprive Addison of any
material fringe benefit enjoyed by Addison; (vii) World terminates, or proposes
to terminate, Addison's 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); or (viii) the Board approves the
liquidation or dissolution of World prior to the end of this Agreement. In the
event that Addison 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 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.
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(f) By Addison for Other Than Good Reason. Notwithstanding the
above, Addison may upon giving reasonable notice, not to be less than 30 days,
terminate this Agreement without further obligation on the part of Addison 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 Company, 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 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
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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 Addison shall be communicated by
written notice to the other party hereto, specifically indicating the
termination provision relied upon.
(j) Company Property. At the termination of Addison's
employment, whether voluntary or involuntary, Addison shall return all company
property, including without limitation all electronic and paper files and
documents and all copies thereof.
6. Confidentiality. (a) Addison 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
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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 or is
not readily ascertainable by other means, which, if misused or disclosed, could
adversely affect the business of World. Addison 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, company
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 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) Section 4(f) of this Agreement and any other indemnity
agreements between Addison 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.
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(c) 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 Addison's death, or otherwise due upon his death, shall be such
person or persons, as Addison shall designate in writing to World. If no such
beneficiary shall survive Addison, 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 Addison, either solely or jointly with
other person(s), (1) during Addison's 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 Addison.
(b) Addison 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) Addison shall at World's request and expense execute any
and all applications, assignments, or other instruments which World shall deem
necessary to 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) Addison shall assign and does hereby assign to World all
interests and rights, including but not limited to copyrights, in any such
intellectual property.
9. 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.
10. Governing Law. All questions concerning the construction,
validity, application and
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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. Addison agrees to submit to personal
jurisdiction in the State of Georgia.
11. 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 provision of this Agreement, which shall remain in
full force and effect.
12. 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.
13. Waiver of Modification of Agreement. No waiver or modification of
this Agreement shall be valid unless in writing and duly executed by both
parties.
14. 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: ___________________________
Xxxxxx X. Xxxxxx
Chairman and CEO
___________________________
Xxxxxxx X. X. Xxxxxxx
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