EXHIBIT 99.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") between
World Airways, Inc., a Delaware corporation ("World" or the "Company") and
XXXXXXX X. X. XXXXXXX ("Xxxxxxx) is entered into this 6TH DAY OF MAY 2004, and
restates, amends and replaces in its entirety without a break in continuity, the
Employment Agreement dated June 1, 2002, as amended May 1, 2003.
WHEREAS, the parties wish to extend the term of ADDISON'S employment and
change his title to SENIOR VICE PRESIDENT, OPERATIONAL SUPPORT SERVICES of World
Airways, Inc. on the terms and subject to the conditions set forth herein.
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 6, 2007, 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
OCTOBER 6, 2006 ADDISON shall initiate discussions with the Chief Executive
Officer (hereinafter "CEO") 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 CEO. If the CEO does not wish to renew this
Agreement at its expiration, or wishes to renew on different terms, the CEO
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shall give written notice to ADDISON no later than NOVEMBER 6, 2006.
3. POSITION AND DUTIES. ADDISON shall to serve as SENIOR VICE
PRESIDENT, OPERATIONAL SUPPORT SERVICES with the duties performed as of MAY 6,
2004. The CEO 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 SENIOR VICE PRESIDENT,
OPERATIONAL SUPPORT SERVICES. 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 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 CEO. 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
$180,000 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 197,895
options to purchase World's Common Stock, par value $.001 per share ("World
Airways Common Stock") pursuant to the AMENDED AND RESTATED 1995 STOCK INCENTIVE
PLAN (the "Plan") as set forth in the
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Stock Option Agreements between World and ADDISON dated MAY 31, 1995, DECEMBER
23, 1997, MARCH 29, 2000, OCTOBER 30, 2000, JUNE 1, 2002 AND FEBRUARY 13, 2003
(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 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
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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 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, she 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 CEO 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 CEO,
(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
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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 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
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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 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) she 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
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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, with or without
Addison's 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
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.
(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
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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 any of their subsidiaries or affiliates; (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of World 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 in substantially the same proportions
as their ownership of stock of World.
(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
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electronic and paper files and documents and all copies thereof.
6. CONFIDENTIALITY. (a) ADDISON recognizes and acknowledges that she
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. ADDISON agrees that she 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 she 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
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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.
(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 she 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.
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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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
WORLD AIRWAYS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
President and CEO
/s/ Xxxxxxx X.X. Xxxxxxx
------------------------
Xxxxxxx X. X. Xxxxxxx
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