EXHIBIT 99.4
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This First Amended and Restated Employment Agreement between World
Airways, Inc., a Delaware corporation ("World" or the "Company") and XXXXXXX X.
XXXXXXXXX ("XxxXxxxxx") is entered into this 1ST DAY OF APRIL, 2004, and
restates, amends, and replaces in its entirety, without a break in continuity,
the Employment Agreement dated AUGUST 22, 2003.
WHEREAS, the parties wish to extend the term of XXXXXXXXX'X employment and
promote him to CHIEF OPERATING OFFICER of World Airways, Inc. on the terms and
subject to the conditions set forth herein, and
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 AUGUST 16, 2003, 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
MAY 6, 2006, XXXXXXXXX shall initiate discussions with the Chief Executive
Officer (hereinafter "CEO") 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 CEO. If the CEO does not wish to renew this
Agreement at its expiration, or wishes to
renew on different terms, the CEO shall give written notice to XXXXXXXXX no
later than JUNE 6, 2006.
3. POSITION AND DUTIES. XXXXXXXXX shall serve as CHIEF OPERATING OFFICER
with duties performed as of the date hereof, as those duties may be changed from
time to time. The CEO 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 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 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 CEO. 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. XxxXxxxxx is also to receive a
promotion award of $50, 000 payable by MAY 12, 2004.
(b) PERFORMANCE STOCK OPTIONS. XXXXXXXXX has been granted 200,000 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 Stock Option Agreement between World and
XXXXXXXXX dated AUGUST 22, 2003 and MAY 6, 2004 (together, the "Options" and the
"Option Agreement"). In the event of a Change in Control as defined below, all
Options granted 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 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 AUGUST 22, 2003, 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 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 CEO 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 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 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 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)
TWENTY-FOUR 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 (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,
with or without XXXXXXXXX'X 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 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.
(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 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 its subsidiaries or affiliates; (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of World or any of
its 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 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 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
(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.
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/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President and CEO
/s/ Xxxxxxx X. XxxXxxxxx
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Xxxxxxx X. XxxXxxxxx
