EMPLOYMENT AGREEMENT
This Employment Agreement between World Airways, Inc., a Delaware
corporation ("World" or the "Company") and Xxxxx Xxxxxxxx "Xxxxxxxx") is entered
into this 1st day of September, 1999.
WHEREAS, Xxxxxxxx has agreed to serve as World's Chief Information Officer
as of September 1, 1999.
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
September 30, 2002, 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
February 15, 2002, Xxxxxxxx shall initiate discussions with the Chairman of the
Board (hereinafter "Chairman") 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. 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 Xxxxxxxx no later than February 28,
2002.
3. POSITION AND DUTIES. Xxxxxxxx shall continue to serve as Chief
Information Officer with the duties performed as of September 1, 1999. The
Chairman will have reasonable latitude to make changes in Xxxxxxxx'
responsibilities, except that Xxxxxxxx' responsibilities may not be modified in
a way that would be inconsistent with the status of Chief Information Officer.
Following a Change of Control (as hereinafter defined), Xxxxxxxx'
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 the company and will advance and promote to
the best of his ability the business and welfare of the Company. Xxxxxxxx shall
devote all of his working time, attention, knowledge and skills solely to the
business and interests 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 Chairman 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 Washington, DC metropolitan area will
require mutual agreement.
4. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. Xxxxxxxx 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. Xxxxxxxx agrees to
participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) PERFORMANCE STOCK OPTIONS. Xxxxxxxx has been granted 62,000 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, June 22, and August 9, 1999 (together, the "Options" and the "Option
Agreement"). In the event of a Change in Control as defined below, all Options
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' termination, or until Xxxxxxxx
obtains comparable coverage, whichever is earlier.
(e) PERSONNEL POLICIES, CONDITIONS AND BENEFITS. Except as otherwise
provided herein, Xxxxxxxx' 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 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 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 September 1, 1999, between Xxxxxxxx and World Airways, Inc. (the
"Indemnity Agreement").
5. TERMINATION OF EMPLOYMENT.
(a) DEATH. Xxxxxxxx' 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 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 Xxxxxxxx, in which event World shall have no obligation to Xxxxxxxx with
respect to compensation under Section 4(a) of this Agreement. 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 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 Xxxxxxxx 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, (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 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 5(c)(i)(A), or (B), 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
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) 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 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
Airways 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 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 Xxxxxxxx in connection with any dispute with any taxing authority
with respect to such determinations and/or payments.
(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' consent,
(i) World relocates its general and administrative offices or
Xxxxxxxx' 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,
except as provided in Section 4(a) above;
(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' 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' 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' 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, 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'
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 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 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 30 days,
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 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 Xxxxxxxx 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 Xxxxxxxx' employment,
whether voluntary or involuntary, Xxxxxxxx shall return all company property,
including without limitation all electronic and paper files and documents and
all copies thereof.
6. CONFIDENTIALITY.
(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 or is not readily
ascertainable by other means, 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, 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) Section 4(f) 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.
(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 Xxxxxxxx' 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'
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 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. 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 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. Xxxxxxxx agrees to submit to personal
jurisdiction in the State of Virginia.
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
_______________________________________________
Xxxxx Xxxxxxxx
