EXHIBIT 10.1
CONFIDENTIAL
Xx. Xxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Agreement and General Release
Dear Xxxxx:
We are in agreement that it is in our mutual best interests to end our
employment relationship. Accordingly, World Airways, Inc., its parent
corporation, affiliates, subsidiaries, divisions, successors and assigns and the
current and former employees, officers, directors and agents thereof
(collectively referred to throughout this Agreement as "Employer") and XXXXX X.
XXXXXXX, 000 XXXXXXXX XXXXX, XXXXXXXXXXXX, XX 00000, her heirs, executors,
administrators, successors and assigns (collectively referred to throughout this
Agreement as "Employee") agree:
1. LAST DAY OF EMPLOYMENT. Employee's last day of employment with
Employer is November 1, 2004. All of Employee's Company issued property must be
collected immediately. This includes but is not limited to the following:
World Airways ID,
HLH Building access card,
And Office keys.
All outstanding expense reports must be submitted by the close of
business Friday, November 19, 2004, to be considered for payment.
2. CONSIDERATION. In consideration for signing and delivering to
Xxxx X. Xxxxxxx the letter from Employee in the form attached hereto as Exhibit
"A" and this Agreement and General Release (and not revoking such Agreement and
General Release) and in compliance with the promises made herein, Employer
agrees to provide Employee the following within ten (10) business days after the
revocation period described in Section 4 of this Agreement expires:
a. A lump sum severance payment to Employee in the amount of
$262,500.00, less lawful deductions. This amount includes payment for
any accrued but unused vacation or other time off. This payment shall
be considered settlement of, inter alia, Employee wage claims but shall
not be considered compensation for purposes of Employer's 401(k) plan;
and
b. Employee's health insurance benefits will continue until
NOVEMBER 30, 2004. Thereafter, upon electing continuation coverage
(COBRA) under the Employer's group medical and dental plans and by
paying the applicable employee contribution (at active employee rates,
with Employer subsidizing the remainder of the applicable COBRA rate),
Employee will participate in Employer's group health and dental
programs for a period of one month (i.e., through December 31, 2004),
or until Employee obtains comparable coverage, whichever is earlier.
Thereafter, Employee shall be entitled to continue such coverage under
COBRA, at his or her own expense and being responsible for the entire
applicable COBRA premium for the remainder of the applicable COBRA
period. Employee agrees that if she should replace the health benefits
provided hereunder, she shall notify Employer that the coverage has
been replaced within ten days of obtaining such new coverage.
c. Recognizing that Employer has determined that it has cause to
terminate the employment of Employee, the Employer agrees to
characterize the separation of Employee's employment as a voluntary
resignation by Employee.
3. BONUS, OPTIONS AND OTHER COMPENSATION. Employee understands
and agrees that the provisions of this Agreement supercede any prior agreement
or understanding regarding payment of any compensation or benefits upon
termination of employment of the Employee and specifically that Employee shall
not be entitled to any compensation or benefits pursuant to the terms of the
Employment Agreement dated January 16, 2002, as amended May 1, 2003, between
World Airways, Inc., and Xxxxx X. Xxxxxxx. Specifically, Employee understands
and agrees that:
a. All unexercised vested stock options (i.e., 99,500 options)
shall remain exercisable during the one-year period following the
Employee's last day of employment. All unvested options (i.e., 28,500
options) as of the last day of employment of the Employee shall be
forfeited.
b. Employee shall not be entitled to any payments pursuant to the
2004 Management Incentive Compensation Program of the Employer.
4. REVOCATION. Employee may revoke this Agreement and General
Release for a period of seven (7) days following the day she executes this
Agreement and General Release. Any revocation within this period must be
submitted in writing to Xxxx X. Xxxxxxx and state, "I hereby revoke my
acceptance of our Agreement and General Release." The revocation must be
personally delivered to Xxxx X. Xxxxxxx or her designee, or mailed to Xxxx X.
Xxxxxxx and postmarked within seven (7) days of execution of this Agreement and
General Release. This Agreement and General Release shall not become effective
or enforceable until the revocation period has expired. If the last day of the
revocation period is a Saturday, Sunday or legal holiday in Georgia, then the
revocation period shall not expire until the next following day which is not a
Saturday, Sunday or legal holiday.
5. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Employee
understands and agrees that Employee would not receive all the monies and/or
benefits specified in paragraph "2" above except for her execution of this
Agreement and General Release and the fulfillment of the promises contained
herein.
6. GENERAL RELEASE OF CLAIM.
a. Employer hereby knowingly and voluntarily releases and forever
discharges Employee of and from any and all claims, known and unknown, which
against Employee, Employer has or may have as of the date of execution of this
Agreement and General Release.
b. Employee knowingly and voluntarily releases and forever
discharges Employer of and from any and all claims, known and unknown, which
against Employer, Employee has or may have as of the date of execution of this
Agreement and General Release. However, this Agreement and General Release of
claims shall not invalidate D&O coverage provided to Employee covering her
services for Employer during her employment. This Agreement and General Release
of claims includes, but is not limited to, any alleged violation of:
- The National Labor Relations Act, as amended;
- Title VII of the Civil Rights Act of 1964, as amended;
- The Civil Rights Act of 1991;
- Sections 1981 through 1988 of Title 42 of the United States
Code, as amended;
- The Employee Retirement Income Security Act of 1974, as
amended;
- The Immigration Reform and Control Act, as amended;
- The Americans with Disabilities Act of 1990, as amended;
- The Workers Adjustment and Retraining Notification Act, as
amended;
- The Occupational Safety and Health Act, as amended;
- The Family and Medical Leave Act of 1993;
- The Georgia Civil Rights Act, as amended;
- The Georgia Minimum Wage Law, as amended;
- Equal Pay Law for Georgia, as amended;
- Any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or
ordinance;
- Any public policy, contract, tort, or common law; or
- Any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
c. The general releases contained in Paragraphs 6 and 7 shall not
bar any action, charge or complaint by one party against the other party for
breach of this Agreement and General Release or to specifically enforce any of
the rights to which either party is entitled hereunder.
7. NO CLAIMS PERMITTED. Except for any breach of this Agreement
and General Release, Employee waives her right to file any charge or complaint
against Employer arising out of her employment with or separation from Employer
before any federal, state or local court or any state or local administrative
agency, except where such waivers are prohibited by law. This Agreement,
however, does not prevent Employee from filing a charge with the Equal
Employment Opportunity Commission, any other federal government agency, and/or
any government agency concerning claims of discrimination, although Employee
waives his right to recover any damages or other relief in any claim or suit
brought by or through the Equal Employment Opportunity Commission or any other
state or local agency on behalf of Employee
under Title VII of the Civil Rights Act of 1964 as amended, the Americans with
Disabilities Act, or any other federal or state discrimination law, except where
such waivers are prohibited by law. Alternatively, in the event Employee sues
Employer, Employer's obligations to pay severance pay and benefits and other
consideration shall cease and Employee may be required, at Employer's option, to
return all but One Hundred Dollars and No Cents ($100.00) of the severance pay
and benefits and other consideration paid to Employee pursuant to this
Agreement.
8. AFFIRMATIONS. Each party to this Agreement and General Release
affirms that it has not filed, has not caused to be filed and is not presently a
party to, any claim, complaint, or action against the other party in any forum
or form. Employee further affirms she has no known workplace injuries. The
parties acknowledge that, because of irreconcilable differences regarding
company policy, Employee agrees not to apply for employment in the future with
Employer.
9. CONFIDENTIALITY. In addition to the confidentiality provisions
contained in other agreements previously executed between Employer and Employee,
a. The parties agree not to disclose any information regarding
the circumstances surrounding the cessation of her employment, or the existence,
terms, or conditions of this Agreement and General Release, to any person or
entity whatsoever, including without limitation, any members of the media
(including, but not limited to, print journalists, newspapers, radio,
television, cable, satellite programs, or Internet media) or any Internet web
page or "chat room," or any other entity or person, with the exception of
Employee's spouse, accountant, tax advisor, and/or attorneys. Notwithstanding
the aforementioned provision, nothing herein shall preclude Employee from
divulging any information to any agency of the federal, state, or local
government pursuant to an official request by such government agency or pursuant
to court order.
b. Employee agrees to maintain absolute confidentiality and
secrecy concerning confidential and/or proprietary information obtained from
Employer during the course of employment with Employer. Such information
includes, but is not limited to, any client list, donor list, contribution list,
or information contained therein, or any financial, corporate, or other
confidential or proprietary information of or regarding Employer or any of its
clients, donors, suppliers, vendors, or other persons or entities having a
business relationship with Employer. Employee represents that she does not have
possession, custody, or control of any written or electronic information or
materials obtained or derived from Employer. In addition, Employee acknowledges
that Employee's obligations under this Section 9 are separate and distinct from
any obligations Employee may have, and any rights Employer may have, in
connection with Employee's acquisition, disclosure and use of Employer's "trade
secrets" under the Georgia Trade Secrets Act of 1990, as amended, O.C.G.A.
Section 10-1-760 et seq.
c. Employer agrees that when references are requested, it will
disclose only neutral or favorable information, including but not limited to
Employee's dates of employment and job title.
10. NO SOLICITATION OF EMPLOYEES. Employee agrees that Employee
shall not, during the one-year period following the separation of Employee's
employment with Employer, directly or indirectly, induce, cause, persuade,
solicit or attempt to do any of the foregoing to cause any employee of Employer
to terminate such person's employment relationship with Employer, or to violate
the terms of any agreement between such employee and Employer.
11. GOVERNING LAW AND INTERPRETATION. This Agreement and General
Release shall be governed and conformed in accordance with the laws of the State
of Georgia. In the event that either party breaches any provision of this
Agreement and General Release, Employee and Employer affirm either may institute
an action to specifically enforce any term or terms of this Agreement and
General Release. Should any provision of this Agreement and General Release be
declared illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, excluding the general release language,
such provision shall immediately become null and void, leaving the remainder of
this Agreement and General Release in full force and effect. Nothing herein,
however, shall operate to void or nullify any general release language contained
in the Agreement and General Release.
12. NONADMISSION OF WRONGDOING. Employee and Employer agree that
neither this Agreement and General Release nor the tendering or acceptance of
the consideration for this Release shall be deemed or construed at any time for
any purpose as an admission by Employer or Employee of any liability or unlawful
conduct of any kind.
13. BREACH OF AGREEMENT. Employee acknowledges that Employee's
breach or threatened or attempted breach of any provision of Section 9 or 10 of
this Agreement would cause irreparable harm to Employer not compensable in
monetary damages and that Employer shall be entitled, in addition to all other
applicable remedies, to a temporary and permanent injunction and a decree for
specific performance of the terms of Section 9 or 10 without being required to
prove damages or furnish any bond or other security. Employee hereby
acknowledges the necessity of protection against the competition of, and certain
other possible adverse actions by, Employee, and that the nature and scope of
such protection has been carefully considered by the parties. If, however, any
court determines that the restrictions described herein are not reasonable, the
court may modify, rewrite or interpret such restrictions to include as much of
their nature and scope as will render them enforceable. In addition, the parties
agree that Employer shall have the unilateral right to limit, but not expand,
the restrictions of Section 9 or 10 if Employer determines such limitation to be
necessary for such sections to remain legally enforceable. Employee also agrees
that in the event that Employee otherwise breaches this Agreement, Employer's
obligation to pay severance pay and benefits and other consideration shall cease
and Employee may be required, at Employer's option, to return all but One
Hundred Dollars and No Cents ($100.00) of the severance pay and benefits and
other consideration paid to Employee pursuant to this Agreement. Employer's
rights and remedies pursuant to this Agreement shall not be construed as a
waiver or limitation of any other rights or available remedies that it may have
in law or equity absent this Agreement.
14. AMENDMENT. This Agreement and General Release may not be
modified, altered or changed except upon express written consent of both parties
wherein specific reference is made to this Agreement and General Release.
15. ENTIRE AGREEMENT. As to the terms and provisions specifically
addressed herein, this Agreement and General Release sets forth the entire
agreement between the parties hereto and fully supersedes any prior agreements
or understandings between the parties. All other terms and conditions governing
the rights and obligations of the parties shall be governed by Employer's
policies and procedures or such other written agreements as may have been
executed between Employer and Employee. Each party acknowledges that they are
not relying upon any representations, promises, or agreements of any kind by the
other party in connection with their decision to accept this Agreement and
General Release, except for those set forth herein.
EMPLOYEE HAS BEEN ADVISED SHE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS
TO REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL
RELEASE.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS IN
PARAGRAPH "2" ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION,
ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS SHE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Agreement and General Release as of the date set forth below.
WORLD AIRWAYS, INC. EMPLOYEE
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
-------------------------------- --------------------------
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
President & Chief Executive Officer
Date: 11/09/2004 Date: 11/09/2004
-------------------------- --------------------
