Exhibit 10.50
*** Text Omitted and Filed Separately
Confidential Treatment Requested
under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
18th day of January 2002 by America West Airlines, Inc., a Delaware corporation
("AWA"), and America West Holdings Corporation, a Delaware corporation
("Holdings"), with the Air Transportation Stabilization Board (the "ATSB").
RECITALS
WHEREAS, pursuant to the Air Transportation Safety and System
Stabilization Act, P.L. 107-42 (the "Act") the ATSB is entering into a Guarantee
Agreement with Citibank, N.A., as Lender and Agent, of even date herewith for
the benefit of AWA (the "Guarantee"); and
WHEREAS, Section 104(a) of the Act requires the execution and delivery
of this Agreement as a condition to the issuance of the Guarantee.
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the AWA and Holdings agree hereto as follows:
1. DEFINITIONS.
1.1 "CASH COMPENSATION" shall mean any compensation, other than Equity
Compensation (as hereinafter defined), paid, including amounts deferred, by AWA
and/or Holdings including:
(i) base salary;
(ii) cash bonus;
(iii) employer contributions under any qualified retirement
plan;
(iv) perquisites, including automobile allowances, positive
space travel benefits and any associated tax gross-ups, valued in a manner
consistent with the valuation of such perquisites for purposes of reporting such
perquisites in Holdings' proxy statement for its annual meetings of
stockholders;
(v) any other compensation required to be disclosed in
Holdings' proxy statement for its annual meeting of stockholders; and
(vi) other financial benefits, reasonably valued by the good
faith determination of the Compensation Committee of the Board of Directors of
AWA or Holdings, as the case may be, excluding Excluded Compensation (as
hereinafter defined).
1.2 "COVERED EMPLOYEE" shall mean each of the employees listed on
Exhibit A hereto who constitute all of AWA's and Holdings' employees that
received Total Compensation, valued as set forth on Exhibit A hereto, that
equaled or exceeded three hundred thousand dollars ($300,000) for calendar year
2000, excluding any employee whose compensation is determined
1.
pursuant to a collective bargaining agreement that was entered into prior to
September 11, 2001.
1.3 "EQUITY COMPENSATION" shall mean any compensation paid by AWA
and/or Holdings in any of the following forms:
(i) stock option grants, valued as of the date of grant by
using the Black-Scholes method of valuation using assumptions consistent with
those used or to be used in connection with the preparation of Holdings' audited
financial statements for the relevant time period; and
(ii) restricted stock awards, valued by multiplying the number
of shares granted by the fair market value of such shares on the date of grant;
and
(iii) any other equity or equity-based compensation required
to be disclosed in Holdings' proxy statement for its annual meeting of
stockholders.
1.4 "EXCLUDED COMPENSATION" shall mean any health, life, disability and
other welfare benefits whether or not insured.
1.5 "MAXIMUM COMPENSATION" with respect to a Covered Employee shall
mean Total Compensation paid to, or for the benefit of, or granted to, or for
the benefit of, such Covered Employee for calendar year 2000, as set forth on
Exhibit A hereto; provided that if a Covered Employee was not employed for the
full calendar year 2000, such Covered Employee's Maximum Compensation will be
adjusted by (i) annualizing the amount of base salary paid to such Covered
Employee for calendar year 2000 and (ii) if such Covered Employee did not
receive a cash bonus or received a prorated cash bonus during calendar year
2000, as a result of not having been employed by AWA and/or Holdings for a
period in calendar year 2000 sufficient to be eligible for a full year bonus,
including in his Maximum Compensation such Covered Employee's assumed target
bonus as set forth on Exhibit A hereto.
1.6 "TOTAL COMPENSATION" shall mean the sum of Cash Compensation and
Equity Compensation.
2. RESTRICTIONS ON COMPENSATION.
AWA and Holdings hereby covenant that during the two (2) year period
beginning September 11, 2001 and ending September 11, 2003, no Covered Employee
will receive from AWA and/or Holdings (i) Total Compensation which exceeds,
during any twelve (12) consecutive months of such two (2) year period, the
Maximum Compensation for such Covered Employee, or (ii) severance pay or other
benefits upon termination of employment with AWA and/or Holdings the value of
which exceeds twice the Maximum Compensation for such Covered Employee.
3. REPRESENTATIONS.
Each of AWA and Holdings jointly and severally represent and warrant to
the ATSB that:
2.
(i) the employees listed on Exhibit A hereto constitute all of AWA's
and Holdings' Covered Employees, that Exhibit A hereto is true and complete, and
that with respect to Covered Employees whose Maximum Compensation includes an
assumed target bonus pursuant to Section 1.5(ii) of the Agreement, such assumed
target bonus was determined in a manner consistent with the Compensation
Committee's of the Board of Directors of AWA or Holdings, as the case may be,
usual compensation practices;
(ii) each of AWA and Holdings is duly organized, validly existing and
in good standing under the laws of Delaware;
(iii) the execution, delivery and performance by AWA and Holdings of
this Agreement; (a) is within AWA's and Holdings' respective powers, and has
been duly authorized by all necessary corporate action; (b) does not contravene
the constituent documents of AWA or Holdings, or any law, rule, regulation or
administrative or court order binding on or affecting AWA or Holdings or their
respective property; and (c) does not conflict with, or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of AWA or Holdings pursuant to any
contract, employment agreement, indenture, mortgage, loan agreement, note or
other instrument to which AWA or Holdings is a party or by which AWA or Holdings
may be bound or to which AWA's or Holdings' assets may be subject;
(iv) this Agreement constitutes a valid and binding obligation of AWA
and Holdings, enforceable against each of them in accordance with its terms,
except as the enforceability thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally and general
principles (whether applied in an action at law or a suit in equity); and
(v) no authorization, approval, consent or order of any court or
governmental authority or agency or any other person or entity is required in
connection with the execution and delivery by AWA or Holdings of this Agreement
or their performance hereunder.
4. MISCELLANEOUS.
4.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Federal Law of the United States of America if and to the
extent such Federal Law is applicable, and otherwise in accordance with the law
of the State of New York.
4.2 AMENDMENT AND WAIVER. This Agreement may not be amended, discharged
or terminated without the written consent of the parties hereto, and no
provision hereof may be waived without the written consent of the ATSB.
4.3 SUCCESSORS. This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of, and be binding upon, their
respective successors, assigns and legal representatives.
4.4 NOTICES. Each of AWA and Holdings shall have the obligation to
notify the ATSB promptly, but in no event later than ten (10) days, following
the occurrence of any event which constitutes a breach of this Agreement. All
notices required or permitted hereunder shall
3.
be in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent to the party to be notified at the address as set forth on the
signature page hereof or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
4.5 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Intentionally Left Blank]
4.
The foregoing AGREEMENT is hereby executed as of the date first above
written.
AMERICA WEST HOLDINGS CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: W. Xxxxxxx Xxxxxx
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Title: President and Chief Executive Officer
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Address: 000 Xxxx Xxx Xxxxxx Xxxxxxx
Xxxxx, XX 00000
AMERICA WEST AIRLINES, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Name: W. Xxxxxxx Xxxxxx
------------------------------------------------
Title: President and Chief Executive Officer
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Address: 0000 Xxxx Xxx Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
ACCEPTED AND AGREED:
AIR TRANSPORTATION STABILIZATION BOARD
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
------------------------------------------------
Title: Executive Director
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Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
With a copy to:
Address: United States Department of the Treasury
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Deputy Assistant Secretary (Government Financial Policy)
5.
EXHIBIT A
2000 EXECUTIVE COMPENSATION ABOVE $300,000
(NEW HIRES ANNUALIZED)
CASH COMPENSATION ---------------------------
------------------------------ TOTAL OPTIONS GRANT
HIRE DATE NAME TITLE EARNINGS BONUS TOTAL CASH GRANTED GRANTED DATE
--------- ---- ----- -------- ----- ---------- ------- ------- ---------
12-Jun-95 XXXXXX, X.XXXXXXX EXECUTIVE VP CORPORATE GROUP $398,658 $233,295 $631,953 195,000 115,000 26-Jul-00
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6-Feb-95 XXXXXXX, XXXXXXX X. XX VP CHIEF ADMINISTRATIVE OFFICER $286,429 $145,222 $431,651 25,000 0
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15-Sep-99 XXXXXXXXXX,XXXXXXX XX VP OPERATIONS $287,933 $41,517 $329,450 22,000 0
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LONG TERM INCENTIVES
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BS OPTIONS XXXXX XX TOTAL RESTRICTED TOTAL VALUE OF
HIRE DATE NAME VALUE GRANTED DATE VALUE BS VALUE GRANTS LONG TERM PERQUISITES
--------- ---- ---------- ------- --------- -------- ---------- ---------- ---------- -----------
12-Jun-95 XXXXXX, X.XXXXXXX $1,262,940 80,000 14-Dec-00 $581,758 $1,844,699 $331,250 $2,175,949 $13,566
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6-Feb-95 XXXXXXX, XXXXXXX X. $0 25,000 14-Dec-00 $181,799 $181,799 $0 $181,799 $15,722
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15-Sep-99 XXXXXXXXXX,XXXXXXX $0 22,000 14-Dec-00 $159,984 $159,984 $0 $159,984 $15,862
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TOTAL
HIRE DATE NAME COMPENSATION
--------- ---- ------------
12-Jun-95 XXXXXX, X.XXXXXXX $2,821,468
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6-Feb-95 XXXXXXX, XXXXXXX X. $629,172
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15-Sep-99 XXXXXXXXXX,XXXXXXX $505,296
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*** Confidential Treatment Requested
