EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter referred to as the "Agreement"), between
World Airways, Inc., a Delaware corporation (hereinafter referred to as "World"
or "the Company") and Xxxxxx X. Xxxxxx hereinafter referred to as ("Xxxxxx") is
entered into this 15th day of April, 1999.
WHEREAS, Xxxxxx has agreed to serve as World's President, Chief Executive
Officer and Chairman of the Board of Directors, as of May 1, 1999.
NOW, THEREFORE, World and Xxxxxx, 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 Xxxxxx and Xxxxxx accepts such employment.
2. TERM. The period of employment shall be from May 1, 1999, through December
31, 2001, 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 June 30,
2000, Xxxxxx shall initiate discussions with the World Airways Board of
Directors (hereinafter "Board") regarding the renewal of this Agreement. At that
time, if Xxxxxx wishes to renew this Agreement on different terms, Xxxxxx 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 Xxxxxx no later
than June 30, 2000.
3. POSITION AND DUTIES. Xxxxxx shall continue to serve as President, Chief
Executive Officer and Chairman of the Board with the duties performed as of May
1, 1999, as those duties may be changed from time to time. The Board will have
reasonable latitude to make changes in Xxxxxx' responsibilities, except that
Xxxxxx' responsibilities may not be modified in a way that would be inconsistent
with the status of President, Chief Executive Officer and Chairman of the Board.
Following a Change of Control (as hereinafter defined), Xxxxxx' responsibilities
may not be changed without mutual agreement. Xxxxxx 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 to the best of his
ability the business and welfare of the Company. Xxxxxx shall devote all of his
working time, attention, knowledge and skills solely to the business and
interest of World. Xxxxxx 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, excluding the vote of
Xxxxxx. Xxxxxx 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
Washington, DC metropolitan area will require mutual agreement.
4. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. Xxxxxx shall receive a minimum salary of $350,000 per
annum payable in accordance with the payroll procedures for World's
salaried employees in effect during the term of this Agreement.
(b) PERFORMANCE STOCK OPTIONS. Xxxxxx has been granted 100,000 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 Agreement between
World and Xxxxxx dated April 15, 1999 (the "Option Agreement No.1").
(c) PERFORMANCE STOCK OPTIONS. Xxxxxx has been granted 900,000 options
to purchase World Airways Common Stock, par value $.00l per share
pursuant to a stock option plan to be created in a reasonable time
frame by the Board (the "Option Agreement No. 2").
(d) Xxxxxx agrees to purchase $100,000.00 worth of common stock or
debentures of the Company.
(e) BUSINESS EXPENSES. Xxxxxx 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.
(f) FRINGE BENEFITS. Xxxxxx 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, Xxxxxx may participate in World's health and
other benefit programs for a period of one year from the date of
Xxxxxx' termination, or until Xxxxxx obtains comparable coverage,
whichever is earlier.
(g) PERSONNEL POLICIES, CONDITIONS AND BENEFITS. Except as otherwise
provided herein, Xxxxxx' 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, Xxxxxx shall accrue
vacation at the rate of one month per year and such vacation shall be
taken in accordance with the Company's procedures.
(h) INDEMNIFICATION; D&O INSURANCE. Subject to Section 6(f) of this
Agreement, World shall provide (or cause to be provided) to Xxxxxx
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 Xxxxxx 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 Xxxxxx
and World Airways, Inc. (the "Indemnity Agreement"). [TO DO]
5. TERMINATION OF EMPLOYMENT.
(a) DEATH. Xxxxxx' employment hereunder shall terminate upon his death,
in which event World shall have no further obligation to Xxxxxx 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 Xxxxxx 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 Xxxxxx,
in which event World shall have no obligation to Xxxxxx with respect to
compensation under Section 4(a) of this Agreement. The term
"disability" means a physical or mental illness that will prevent
Xxxxxx from performing the essential functions of his job for at least
twelve (12) months or is likely to result in death. If Xxxxxx 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 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 Xxxxxx, 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 Xxxxxx 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
Xxxxxx, (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,
Xxxxxx 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, excluding the vote of Xxxxxx, at a meeting of
the Board finding that, in the good faith opinion of the
Board, Xxxxxx was guilty of conduct set forth in 5(c)(i)(A),
(B), (C) or (D) provided, however, that Xxxxxx may not be
terminated for Cause hereunder unless: (1) Xxxxxx receives
prior written notice of World's intention to terminate this
Agreement for Cause and the specific reasons therefore; and
(2) Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 under the Option Agreements shall
become immediately exercisable. In the event that any payment to Xxxxxx
under this paragraph is subject to any federal or state excise tax,
World shall pay to Xxxxxx 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 Xxxxxx agrees to assist World Airways by using his best
efforts to structure matters so that any payment to Xxxxxx 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 Xxxxxx 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 Xxxxxx 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
Xxxxxx as to whether the termination was for Cause, that issue shall be
submitted by Xxxxxx 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.
(e) BY XXXXXX FOR GOOD REASON. Xxxxxx may terminate his employment
hereunder (for purposes of this Agreement "Good Reason") after giving
at least 30 days notice in the event that, without Xxxxxx' consent: (i)
World relocates its general and administrative offices or Xxxxxx' place
of employment to an area other than the Washington, D.C. 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 Xxxxxx'
consent, to pay Xxxxxx 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 Xxxxxx participates which is
material to Xxxxxx' 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 Xxxxxx' 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 Xxxxxx' participation relative to other participants; (vi)
World fails to continue to provide Xxxxxx with benefits substantially
similar to those enjoyed by Xxxxxx under any of World's pension, life
insurance, medical, health and accident, or disability plans in which
Xxxxxx was participating, World takes any action which would directly
or indirectly materially reduce any of such benefits or deprive Xxxxxx
of any material fringe benefit enjoyed by Xxxxxx; (vii) World
terminates, or proposes to terminate, Xxxxxx' 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 Xxxxxx has submitted the matter to arbitration, as set
forth in Section 5(d); or (viii) the Board approves the liquidation or
dissolution of World prior to the end of this Agreement. In the event
that Xxxxxx 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.
(f) By Xxxxxx for Other Than Good Reason. Notwithstanding the above,
Xxxxxx may upon giving reasonable notice, not to be less than six
months, terminate this Agreement without further obligation on the part
of Xxxxxx 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
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 Xxxxxx 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 Xxxxxx' employment, whether
voluntary or involuntary, Xxxxxx shall return all company property,
including without limitation all electronic and paper files and
documents and all copies thereof.
6. CONFIDENTIALITY/RESTRICTIVE COVENANT.
(a) Xxxxxx 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. Xxxxxx 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 Virginia 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) 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, Xxxxxx 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 Xxxxxx' 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) Xxxxxx 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 Xxxxxx' ability to earn a 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) Xxxxxx 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, Xxxxxx expressly agrees that,
in addition to any and all monetary damages and other remedies and
relief available to World as a result of Xxxxxx' violation or breach of
this Agreement, World shall be entitled to an injunction restraining
Xxxxxx 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, Xxxxxx 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 Commonwealth of
Virginia.
(f) Section 4(h) of this Agreement and any other indemnity agreements
between Xxxxxx 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
Xxxxxx' death, or otherwise due upon his death, shall be such person or persons
as Xxxxxx shall designate in writing to World. If no such beneficiary shall
survive Xxxxxx, 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 Xxxxxx, either solely or jointly with other person(s), (1)
during Xxxxxx' 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 Xxxxxx.
(b) Xxxxxx 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) Xxxxxx 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) Xxxxxx 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 Virginia without giving
effect to any choice of law or conflict of law provision or rule (whether of
Virginia or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than Virginia. Xxxxxx agrees to submit to personal
jurisdiction in the State of Virginia.
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 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: ________________________________
Xxxxxxx X. Xxx, Xx.
Chairman, President and CEO
________________________________
Xxxxxx X. Xxxxxx
