Exhibit 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement between World Airways, Inc., a Delaware
corporation ("World" or the "Company") and Xxxx X. Xxxxxxxxx ("Xxxxxxxxx") is
entered into this 1st of June 2002.
WHEREAS, Xxxxxxxxx has agreed to continue to serve as World's President
and Chief Operating Officer as of June 1, 2002.
NOW, THEREFORE, World and Xxxxxxxxx, 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 Xxxxxxxxx and Xxxxxxxxx accepts such
employment.
2. Term. The period of employment shall be from June 1, 2002, through
May 31, 2005, 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
December 1, 2004, Xxxxxxxxx shall initiate discussions with the Chairman of the
Board (hereinafter "Chairman") regarding the renewal of this Agreement. At that
time, if Xxxxxxxxx wishes to renew this Agreement on different terms, Xxxxxxxxx
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 Xxxxxxxxx no later than December 1,
2004.
3. Position and Duties. Xxxxxxxxx shall continue to serve as President
and Chief Operating Officer with the duties performed as of June 1, 2002. The
Chairman will have reasonable latitude to make changes in Xxxxxxxxx'x
responsibilities, except that Xxxxxxxxx'x responsibilities may not be modified
in a way that would be inconsistent with the status of President and Chief
Operating Officer. Following a Change of Control (as hereinafter defined),
Xxxxxxxxx'x responsibilities may not be changed without mutual agreement.
Xxxxxxxxx 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
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promote to the best of his ability the business and welfare of the Company.
Xxxxxxxxx shall devote all of his working time, attention, knowledge and skills
solely to the business and interests of World. Xxxxxxxxx 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. Xxxxxxxxx
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. Xxxxxxxxx shall receive a minimum salary of
$225,000 per annum payable in accordance with the payroll procedures for World's
salaried employees in effect during the term of this Agreement. Xxxxxxxxx agrees
to participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) Performance Stock Options. Xxxxxxxxx has been granted 150,000
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 Xxxxxxxxx
dated January 8, 2002, and June 1, 2002 (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. Xxxxxxxxx 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. Xxxxxxxxx shall be entitled to participate in
all employee benefit
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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, Xxxxxxxxx may
participate in World's health and other benefit programs for a period of one
year from the date of Xxxxxxxxx'x termination, or until Xxxxxxxxx obtains
comparable coverage, whichever is earlier.
(e) Personnel Policies, Conditions and Benefits. Except as otherwise
provided herein, Xxxxxxxxx'x 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, Xxxxxxxxx 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 Xxxxxxxxx
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
Xxxxxxxxx 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 Xxxxxxxxx and World Airways, Inc. (the
"Indemnity Agreement").
5. Termination of Employment.
(a) Death. Xxxxxxxxx'x employment hereunder shall terminate upon his
death, in
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which event World shall have no further obligation to Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx, in which event World shall have no obligation to Xxxxxxxxx with
respect to compensation under Section 4(a) of this Agreement. If Xxxxxxxxx
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 Xxxxxxxxx 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, or (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, Xxxxxxxxx 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,
Xxxxxxxxx was guilty of conduct set forth in 5(c)(i)(A), or (B), provided,
however, that Xxxxxxxxx may not be terminated for Cause hereunder unless: (1)
Xxxxxxxxx receives prior written notice of World's intention to terminate this
Agreement for Cause and the specific reasons therefore; and (2) Xxxxxxxxx
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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 Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx under this
paragraph is subject to any federal or state excise tax, World shall pay to
Xxxxxxxxx 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 Xxxxxxxxx agrees to assist World
Airways by using his best efforts to structure matters so that any payment to
Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx in connection with any dispute with any taxing authority
with respect to such determinations and/or payments.
(e) By Xxxxxxxxx for Good Reason. Xxxxxxxxx may terminate his
employment hereunder
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(for purposes of this Agreement "Good Reason") after giving at least 30 days
notice in the event that, without Xxxxxxxxx'x consent, (i) World relocates its
general and administrative offices or Xxxxxxxxx'x place of employment to an area
other than the Atlanta, Georgia 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 Xxxxxxxxx'x consent, to pay Xxxxxxxxx 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 Xxxxxxxxx participates which
is material to Xxxxxxxxx'x 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 Xxxxxxxxx'x 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 Xxxxxxxxx'x
participation relative to other participants; (vi) World fails to continue to
provide Xxxxxxxxx with benefits substantially similar to those enjoyed by
Xxxxxxxxx under any of World's pension, life insurance, medical, health and
accident, or disability plans in which Xxxxxxxxx was participating, World takes
any action which would directly or indirectly materially reduce any of such
benefits or deprive Xxxxxxxxx of any material fringe benefit enjoyed by
Xxxxxxxxx; (vii) World terminates, or proposes to terminate, Xxxxxxxxx'x
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 Xxxxxxxxx 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.
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(f) By Xxxxxxxxx for Other Than Good Reason. Notwithstanding the
above, Xxxxxxxxx may upon giving reasonable notice, not to be less than 30 days,
terminate this Agreement without further obligation on the part of Xxxxxxxxx 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
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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 Xxxxxxxxx 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 Xxxxxxxxx'x employment,
whether voluntary or involuntary, Xxxxxxxxx shall return all company property,
including without limitation all electronic and paper files and documents and
all copies thereof.
6. Confidentiality. (a) Xxxxxxxxx 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
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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. Xxxxxxxxx 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
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 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 Xxxxxxxxx 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.
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(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 Xxxxxxxxx'x death, or otherwise due upon his death, shall be such person
or persons, as Xxxxxxxxx shall designate in writing to World. If no such
beneficiary shall survive Xxxxxxxxx, 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 Xxxxxxxxx, either solely or jointly
with other person(s), (1) during Xxxxxxxxx'x 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 Xxxxxxxxx.
(b) Xxxxxxxxx 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) Xxxxxxxxx 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) Xxxxxxxxx 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.
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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. Xxxxxxxxx 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
WORLD AIRWAYS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman and CEO
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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