EXHIBIT 11
RETENTION AGREEMENT
RETENTION AGREEMENT, dated as of February 15, 1999 by and between ASA
Holdings, Inc., a Georgia corporation ("Company") and Xxxxxx X. Xxxxxxxx (the
"Employee").
WHEREAS, the Employee is a key employee of Company; and
WHEREAS, Company, Delta Air Lines, Inc., a Delaware corporation
("Buyer"), and _______________, a Georgia corporation and an indirect, wholly-
owned subsidiary of Buyer ("Merger Subsidiary") have entered into an Agreement
and Plan of Merger, dated as of February ___, 1999 (the "Merger Agreement")
pursuant to which Company will merge with and into Merger Subsidiary (the
"Merger"); and
WHEREAS, Company desires to provide incentives for the Employee to
remain employed by Company and its subsidiaries following the closing of the
Offer as defined in the Merger Agreement (the "Closing").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Employee's Duties. Employee shall perform his duties with
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Company and its subsidiaries diligently and to the best of his ability and shall
remain in employment with Company and its subsidiaries until at least the six
month anniversary of the Closing. Employee shall use his best efforts to assist
Company in the integration of the businesses of Company and Buyer and the
continued operation of the business of Company.
Company agrees that following the Closing, Employee will continue to
have the same position, duties and responsibilities as existed prior to the
Closing, other than any changes thereto which are a direct result of the Merger,
except as otherwise agreed by Employee. If, with the consent of Employee, the
employment of Employee is transferred to Buyer, all references to "Company" in
this Agreement (other than in the recitals at the beginning thereof) shall be
understood to refer to "Buyer" except where otherwise required by the context.
2. Incentive Payment. If Employee remains employed by Company and
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its subsidiaries on the six month anniversary of the Closing, then Company shall
pay to Employee in a lump sum within five (5) business days thereafter, an
amount equal to the annual base salary payable to Employee for the 1999 calendar
year as of the date of this Agreement (prior to any reductions under any
employee benefit plan or deferred compensation plan of Company or any
subsidiary).
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3. Termination Prior to
Six Month Anniversary of Closing.
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(a) If Company and its subsidiaries terminate the employment of
Employee for Cause (as such term is defined in paragraph (c) of this Section)
prior to the six month anniversary of the Closing, or if Employee terminates
employment with Company and its subsidiaries prior to the six month anniversary
of the Closing for any reason other than Good Reason, then the Employee will not
be eligible for any payment under this Agreement.
(b) If Company and its subsidiaries terminate the employment of
Employee without Cause after the Closing and prior to the six month anniversary
of the Closing, or if Employee terminates employment with Company and its
subsidiaries prior to the six month anniversary of the Closing for Good Reason,
then the Employee will be entitled to the Incentive Payment provided in Section
2, which will be made in a lump sum within five (5) business days after such
termination of employment.
(c) For purposes of this Agreement, "Cause" means (a) the willful and
continued failure by the Employee to substantially perform his duties with the
Company and its subsidiaries after a written demand for substantial performance
is delivered to the Employee by the Company which specifically identifies the
manner in which the Company believes that the Employee has not substantially
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performed his duties or (b) the willful engaging by the Employee in illegal
conduct or misconduct which is materially and demonstrably injurious to the
Company and its subsidiaries.
(d) For purposes of this Agreement, "Good Reason" means termination of
employment with the Company and its subsidiaries by an Employee if: (i) duties
are assigned to such Employee that are materially inconsistent with previous
duties in any adverse respect; (ii) duties and responsibilities of such Employee
are substantially reduced; provided, however, that Good Reason shall not be
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deemed to occur upon a change in duties or responsibilities (other than
reporting responsibilities) that is solely and directly a result of the Company
no longer being a publicly traded entity and does not involve any other event
set forth in this definition; (iii) base compensation of such Employee is
reduced; (iv) such Employee's participation under the compensation and employee
benefit plans or arrangement generally made available to similarly situated
employees of the Company is limited or denied without such Employee's consent;
or (v) Company requires the Employee to be based anywhere more than 50 miles
from where his principal place of employment is located immediately prior to the
Change in Control.
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4. No Effect on Severance Benefits. This Agreement shall have no
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effect on any entitlement of Employee to severance benefits under any change in
control agreement or employment agreement with Company or under any severance
plan or policy of the Company and its subsidiaries.
5. No Alienation. Employee shall not have any right to pledge,
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hypothecate, anticipate or in any way create a lien upon the benefits provided
under this Agreement, and such benefits shall not be assignable in anticipation
of payment whether by voluntary or involuntary acts, or by operation of law.
6. Non-Competition; Non-Solicitation. If Employee's employment with
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Company and its subsidiaries terminates after the Closing but prior to the six
month anniversary thereof by Employee for Good Reason or by the Company without
Cause, then until the six month anniversary of the Closing:
(i) Employee hereby covenants and agrees that he will not directly or
indirectly provide management or executive services (whether as a
consultant, advisor, officer or director) to any person or entity operating
or seeking to operate a consumer airline using planes with a capacity of
less than 70 seats in any market in which the Company currently operates (a
"Competitor").
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(ii) Employee hereby covenants and agrees that he will not solicit or
hire any employee of the Company to perform a service or function on behalf
of a Competitor similar to any service or function performed by such
employee on behalf of the Company.
It is the intention of the parties hereto that the restrictions
contained in this Section 6 be enforceable to the fullest extent permitted by
applicable law. Therefore, to the extent any court of competent jurisdiction
shall determine that any portion of the foregoing restrictions is excessive,
such provision shall not be entirely void, but rather shall be limited or
revised only to the extent necessary to make it enforceable. Specifically, if
any court of competent jurisdiction should hold that any portion of the
foregoing description is overly broad as to one or more states of the United
States, then that state or states shall be eliminated from the territory to
which the restrictions of paragraph (a) of this Section applies and the
restrictions shall remain applicable in all other states of the United States.
7. Unfunded Obligations. All amounts payable under this Agreement
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are unfunded and unsecured and are payable out of the general funds of Company.
8. Withholding. Company may withhold from any amount payable under
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this Agreement any taxes required to be withheld under applicable federal, state
or local law.
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9. Separability. If any provision of this Agreement is found, held,
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or deemed to be void, unlawful, or unenforceable under any applicable statute or
other controlling law, the remainder of this Agreement shall continue in full
force and effect.
10. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Georgia, without regard
to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ASA HOLDINGS, INC.
By: _________________________
Name:
Title:
______________________________
Xxxxxx X. Xxxxxxxx
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