EXHIBIT 10.12(i)
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is made and entered into as
of the 28th day of January, 1997 (the "Effective Date"), by and between
ATLANTIC COAST AIRLINES, INC., a Delaware corporation and ATLANTIC COAST
AIRLINES, a California corporation (collectively, the "Company") and XXXXX X.
XXXXXXX ("Xxxxxxx").
WITNESSETH THAT
WHEREAS, Xxxxxxx has been employed by the Company as Senior Vice
President, Chief Financial Officer and Treasurer, and has been a Director of
the Company; and
WHEREAS, the parties have agreed to discontinue Xxxxxxx'x employment
relationship with the Company; and
WHEREAS, the Company and Xxxxxxx desire to expressly set forth in this
Agreement the terms of Xxxxxxx'x departure from the Company;
NOW THEREFORE, in consideration of the agreements, representations,
covenants and warranties recited hereinbelow, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Xxxxxxx and the Company do hereby agree, represent, covenant and warrant as
follows:
1. Termination of Employment Xxxxxxx'x employment with the Company will
terminate effective as of the close of business on Tuesday, January 28, 1997
(the "Termination Date").
2. Resignation as Director and Officer Xxxxxxx hereby resigns all of the
positions he presently holds with the Company, including all positions as
Director and all corporate offices, all effective as of the Termination Date.
Xxxxxxx will issue a separate letter to the Board of Directors confirming his
resignation in the form attached hereto as Exhibit 1.
3. Pre-Termination Compensation For the period ending on the Termination
Date, Xxxxxxx will receive compensation in the form of Xxxxxxx'x full base
pay, paid at the annual rate of $145,000, plus auto allowance of $350 per
month, which will accrue for all days through the Termination Date and which
will be paid on the Company's regular payroll payment dates.
4. Severance Pay For the period beginning January 29, 1997 and ending
January 28, 1998 (the "Severance Period"), Xxxxxxx will receive compensation
as follows:
a) Xxxxxxx will receive severance compensation during the entire
Severance Period at the rate of Xxxxxxx'x last annual full base
pay plus the value of his monthly auto allowance, in the total
amount of $149,200 per annum, to be paid on a bi-weekly basis on
the regular payroll payment dates at the same time and in the same
fashion as the Company's regular payroll payments.
b) Deductions will be made from Xxxxxxx'x severance compensation for
social security, federal and state withholding taxes, and any
other such taxes as may from time to time be required by
governmental authority.
5. Senior Management Incentive Plan and Management Incentive Plan Xxxxxxx
will be entitled to receive a distribution from the Company's Senior
Management Incentive Plan and from its Management Incentive Plan for the
period ending December 31, 1996, both calculated as per the policy in place
during the applicable period, and to be paid in the same fashion and at the
same time as payments to other eligible employees. Xxxxxxx will not be
entitled to any further distributions under the Company's Senior Management
Incentive Plan, its Management Incentive Plan, or under any other incentive
plan.
6. Split Dollar Life Insurance Pursuant to the Split Dollar Agreement
between the Company and Xxxxxxx dated December 29, 1995 (the "Split Dollar
Agreement"), the Company will make the $25,000 payment due in January 1997.
The Company will not be required to make any further payment under the Split
Dollar Agreement or pursuant to the policy related thereto, and hereby
notifies Xxxxxxx that it will make no further payments. The terms of the
Split Dollar Agreement will remain in full force and effect pursuant to the
terms thereof.
7. Other Life Insurance The premium for Xxxxxxx'x life insurance policy
with Allied Life (Policy IN0210492) has been paid through December 16, 1996.
The Company will pay the premium on this policy for one additional year,
through December 16, 1997.
8. Health Insurance During the Severance Period, Xxxxxxx will be entitled
to participate in the Company's medical and dental insurance plans as are
available to the Company's employees. The Company will pay premiums at the
rates provided to employees generally, with Xxxxxxx to pay the employee
contribution through a deduction from your severance payments. Xxxxxxx will
be entitled to participate in the Company's executive medical reimbursement
plan for any expenses accruing through the Termination Date, but not for any
expenses arising after the Termination Date. At the end of the Severance
Period, Xxxxxxx will be given all appropriate COBRA notices such that COBRA
will begin, if elected by Xxxxxxx, at that time.
9. Other Insurance Programs During the Severance Period, Xxxxxxx will be
permitted to participate in the Company's other insurance programs in which he
is presently participating (basic employee life insurance coverage, dental,
accidental death and dismemberment, long-term disability) in the same fashion,
to the same extent, with the same payroll deductions, and with the same
limitations as are offered to employees generally. These plans (including the
health insurance plan) will be subject to any changes that are made to the
plans as are applied to employees generally.
10. Tax Gross-Up Xxxxxxx will receive the same tax gross-up treatment for
qualifying reimbursements prior to the termination of his employment as he
received for the prior year.
11. Reimbursement of Expenses The Company will reimburse Xxxxxxx for
expenses incurred in performing his duties prior to the Termination Date, in
accordance with standard Company procedures, provided that all such expenses
shall be submitted no later than the later of March 31, 1997 or within 30 days
after information is available. Any claims for reimbursement under the
Company's executive medical reimbursement plan must also be submitted by that
date.
12. Stock Options Options to purchase the Company's common stock that have
been granted to Xxxxxxx during the period of his employment with the Company
will treated as follows:
a) Vesting:
i) Of an option granted 4/28/94 effective 4/18/94 to purchase
25,000 shares at $4.00 per share, 8,334 shares unvested as
of the date hereof will become 100% fully vested immediately
on the Termination Date.
ii) Of an option granted 1/17/95 effective 1/17/95 to purchase
5,000 shares at $2.625 per share, 1,667 of which vested on
1/17/97, the remaining 1,666 shares unvested as of the date
hereof will become 100% fully vested immediately on the
Termination Date.
iii) Of an option granted 1/17/96 effective 1/17/96 to purchase
20,000 shares at $9.25 per share, 6,667 of which vested on
1/17/97, the remaining 13,333 shares unvested as of the date
hereof will become 100% fully vested immediately on the
Termination Date.
iv) Of an option granted 4/17/96 effective 4/17/96 to purchase
10,000 shares at $16.125 per share, all 10,000 shares, which
were unvested as of the date hereof, will become 100% fully
vested immediately on the Termination Date.
v) Of an option granted 5/22/96 effective 5/22/96 to purchase
10,000 shares at $14.125 per share, all 10,000 shares, which
were unvested as of the date hereof, will become 100% fully
vested immediately on the Termination Date.
vi) Of an option granted (subject to conditions) 10/16/96
effective 10/16/96 to purchase 20,000 shares at $11.75 per
share, all of which were unvested as of the date hereof,
6,667 shares will become 100% fully vested immediately on
the Termination Date and without further condition, and the
remaining 13,333 shares will be canceled as of the
Termination Date.
b) All vested options identified above will expire if not exercised
prior to the close of business on January 28, 1998.
c) All other provisions of all stock option agreements will remain in
full force and effect except as specifically amended above. All
exercise of options will be handled expeditiously to the extent
within the control of the Company.
13. Travel Benefits During the Severance Period, Xxxxxxx and his eligible
family members will be entitled to travel benefits for travel on Atlantic
Coast Airlines in the same fashion as the Company's standard employee policy.
14. 401(K) and ESOP Xxxxxxx'x participation in the Company's 401(k) and
ESOP plans as a present employee will terminate as of the Termination Date.
Xxxxxxx will be entitled to all benefits that were vested as of the
Termination Date as provided in each plan's standard vesting schedule.
Provisions of the plans with respect to former employees will apply.
15. Company Assets Xxxxxxx will promptly surrender to the Company all of the
Company's assets presently in his possession, including credit cards, laptop
computer, employee identification card, parking pass, and Hertz #1 Club Gold
card.
16. Death In the event of Xxxxxxx'x death during the Severance Period, all
compensation agreed hereunder will be paid to Xxxxxxx'x estate, and Xxxxxxx'x
dependents will be entitled to all insurance coverage afforded to them
hereunder.
17. References The Company will respond to any requests for references on
Xxxxxxx'x behalf through the issuance of a reference letter in a form to be
agreed between the parties.
18. Nonsolicitation and Confidentiality
a) Nonsolicitation Throughout the Severance Period, Xxxxxxx will
not, without the prior written consent of the Company, directly or
indirectly, as a sole proprietor, member of a partnership,
stockholder or investor, officer or director of a corporation, or
as an employee, associate, consultant or agent of any person,
partnership, corporation or other business organization or entity
other than the Company: (i) solicit or endeavor to entice away
from the Company, or any of its subsidiaries, any person or entity
who is, or during the then most recent six (6) month period, was
employed by, or had served as an agent or key consultant of, the
Company or any of its subsidiaries, excluding those employees,
agents or key consultants who may have served in that capacity
within six months prior to the Termination Date but are not so
serving on or after the Termination Date, and excluding
specifically Xxxx Xxxxxxx and individuals who would be covered
under this paragraph only through their affiliation with Xxxx
Xxxxxxx; or (ii) solicit or endeavor to entice away from the
Company or any of its subsidiaries any person or entity who is, or
was within the then most recent six (6) month period, a customer
or client (or reasonably anticipated (to the general knowledge of
Xxxxxxx or the public) to become a customer or client) of the
Company or any of its subsidiaries, excluding individual
passengers.
b) Confidentiality Xxxxxxx covenants and agrees with the Company
that he will not at any time, except with the prior written
consent of the Company, directly or indirectly, disclose any
secret or confidential information that he may have learned by
reason of his association with the Company or any of its
subsidiaries and affiliates. The term "confidential information"
includes information not previously disclosed to the public or to
the trade by the Company's management, or otherwise in the public
domain, with respect to the Company's or any of its affiliates' or
subsidiaries', products, facilities, applications and methods,
trade secrets, and other intellectual property, systems,
procedures, manuals, confidential reports, price lists, customer
lists, technical information, financial information (including the
revenues, costs or profits associated with the Company), business
plans, prospects or opportunities, but shall exclude any
information which (i) is or becomes available to the public or is
generally known in the industry or industries in which the Company
operates other than as a result of disclosure by Xxxxxxx in
violation of his agreements under this paragraph; (ii) Xxxxxxx is
required to disclose under any applicable laws, regulations or
directives of any governmental agency, tribunal or authority
having jurisdiction in the matter or under subpoena or other
process of law; or (iii) is disclosed by Xxxxxxx on a limited
basis to the extent necessary to assert any of Xxxxxxx'x rights
under this Agreement.
c) Exclusive Property Xxxxxxx confirms that all confidential
information is and shall remain the exclusive property of the
Company. All business records, papers and documents containing
confidential information in Xxxxxxx'x possession as a result of
his position with the Company will be turned over to the Company
promptly.
d) Breach Xxxxxxx acknowledges that in the event of a material
breach by him of any of the covenants contained in this Paragraph
during the Severance Period, all further obligations of the
Company for the remainder of the term of the Severance Period will
cease. If such a breach has occurred that is of a nature that
can be remedied or cured by Xxxxxxx such that the material harm to
the Company can be eliminated, it will provide Xxxxxxx with
written notice of that situation and will allow Xxxxxxx a fifteen
day period to cure said breach. The Company will respond promptly
and reasonably to any requests by Xxxxxxx for clarifications and
interpretations as to whether any proposed activity may be subject
to restriction pursuant to this Paragraph.
e) Injunctive Relief Without intending to limit the remedies
available to the Company, Xxxxxxx acknowledges that a breach of
any of the covenants contained in this Paragraph may result in
material and irreparable injury to the company or its affiliates
or subsidiaries for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat
thereof, the Company shall be entitled to seek a temporary
restraining order and/or a preliminary or permanent injunction
restraining Xxxxxxx form engaging in activities prohibited by this
Paragraph or such other relief as may be required specifically to
enforce any of the covenants in this Paragraph. If for any reason
it is held that the restrictions under this Paragraph are not
reasonable or that consideration therefor is inadequate, such
restrictions shall be interpreted or modified to include as much
of the duration and scope identified in this Paragraph as will
render such restrictions valid and enforceable.
19. Release
a) In further consideration of each act and promise above stated,
Xxxxxxx does hereby forever and finally release, settle, waive,
reach full accord and satisfaction, remise, discharge, and acquit
the Company, its parents, subsidiaries, affiliates, directors,
officers, agents, employees, representatives, successors, and
assigns, from each, every, and all claims, demands, actions, and
causes of action of any kind or nature, known or unknown,
including but not limited to, any and all claims for costs and
attorneys fees, arising or existing until the date of this
Agreement, and Xxxxxxx, for himself, his heirs, executors,
administrators, successors, and assigns, does hereby release,
remit, acquit, and forever discharge the Company, its parents,
subsidiaries, affiliates, directors, officers, agents,
representatives, employees, successors, and assigns, from any and
all claims or causes of action of each and every kind and nature
whatsoever, which Xxxxxxx has, may have or may accrue, which arise
or are claimed to arise out of Xxxxxxx'x employment with or
cessation of employment from the Company, including, but not
limited to, any claim under the Age Discrimination in Employment
Act (29 U.S.C. S621, et seq.), or any other federal, state or
local anti-discrimination law or ordinance.
b) Xxxxxxx acknowledges that he has carefully read all the terms of
this Agreement, that it contains the entire agreement between him
and the Company, that he enters into this Agreement knowingly and
voluntarily and in exchange for the payments given him, which he
acknowledges are adequate and satisfactory, and that he is hereby
advised in writing by the Company to consult with an attorney
prior to executing this Agreement.
c) The Company further acknowledges that Xxxxxxx understands and has
been advised that he may take up to twenty-one (21) days in which
to consider this Agreement, that he understands that he may revoke
the Agreement for a period of seven (7) days following the date of
its execution, and that this Agreement shall not become effective
or enforceable, and the consideration agreed to by the Company
shall not become payable until the seven day revocation period has
expired.
20. Invalid Provisions The invalidity of any one or more of the clauses or
words contained in this Agreement shall not affect the reasonable
enforceability of the remaining provisions of this Agreement, all of
which are inserted herein conditionally upon being valid in law; and in
the event one or more of the words or clauses contained herein shall be
invalid, this instrument shall be construed as if such invalid words or
clauses had not been inserted or, alternatively, said words or clauses
shall be reasonably limited to the extent that the applicable court
interpreting the provisions of this Agreement considers to be
reasonable.
21. Confidentiality The parties agree that, express as required by law,
they will maintain in strict confidence the terms of this Agreement. It
is expressly agreed, however, that this prohibition does not apply to an
accountant, tax advisor, banker, attorney, or spouse, parents or
immediate family of Xx. Xxxxxxx provided that person is shown this
Agreement and agrees to abide by its terms of confidentiality and
nondisclosure.
22. Miscellaneous
a) All the terms of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
b) The waiver of any provision of this Agreement shall not operate
as, or be construed to be, a waiver of any subsequent breach
hereof.
c) This Agreement supersedes any and all other agreements, either
oral or in writing, between Xxxxxxx and the Company or any of its
subsidiaries, and contains all the covenants and agreements among
the parties with respect to such subject matter, except for
agreements remaining in effect as specifically referenced herein,
and except for any indemnifications in place prior to the date
hereof for acts occurring during the period of Xxxxxxx'x
employment with the Company.
d) It is understood and agreed that this Agreement is not and cannot
be construed as an admission of liability; on the contrary, it is
expressly understood that any and all liability is denied.
e) This Agreement cannot be modified except in writing signed by
Xxxxxxx or by a duly appointed executor of his estate, and by the
a duly appointed officer of the Company.
f) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Virginia.
THE NEXT PAGE IS THE SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has hereunto caused this Agreement to be
executed by a duly authorized officer and Xxxxxxx has hereunto set his hand as
of the day and year first above written.
_______________________________
XXXXX X. XXXXXXX
Subscribed and sworn to before me
by the aforementioned Xxxxx X. Xxxxxxx
this 29th day of January, 1997
_______________________________
Notary Public
ATLANTIC COAST AIRLINES
a California Corporation
By:_____________________________
Xxxxxxx X. Xxxxxxx, Secretary
ATLANTIC COAST AIRLINES, INC.
a Delaware Corporation
By:_____________________________
Xxxxxxx X. Xxxxxxx, Secretary
Subscribed and sworn to before me
by the aforementioned Xxxxxxx X. Xxxxxxx,
as Secretary of Atlantic Coast Airlines, Inc.
and Atlantic Coast Airlines,
this 29th day of January, 1997
_______________________________
Notary Public
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