EXHIBIT 17
AMENDED AND RESTATED
FOUNDING OFFICER AGREEMENT
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THIS AMENDED AND RESTATED FOUNDING OFFICER AGREEMENT (the "AGREEMENT") is
made and entered into by and between ASA HOLDINGS, INC., a Georgia corporation,
("ASA HOLDINGS"), ATLANTIC SOUTHEAST AIRLINES, INC., a Georgia corporation
("ASA"), and XXXXXX X. XXXXXXX ("XXXXXXX") this 16th day of April, 1997,
effective as of the Effective Time (as defined in the Amended and Restated
Agreement and Plan of Merger dated November 6, 1996 by and among ASA, ASA
Holdings, Inc. and Atlantic Southeast Merging Co.).
WITNESSETH:
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WHEREAS, Xxxxxxx was a founding shareholder of ASA and an executive officer
of ASA since its inception; and
WHEREAS, ASA recognized that Xxxxxxx, in his years as an officer of ASA,
helped to build ASA into a successful and prosperous corporation; and
WHEREAS, ASA wished to provide for compensation to Xxxxxxx in the event
his employment with ASA was terminated after a change in control of ASA; and
WHEREAS, ASA and Xxxxxxx entered into a Founding Officer Agreement dated
June 27, 1990 (the "ASA AGREEMENT") as part of a total compensation package
agreed to by Xxxxxxx and ASA in consideration for Xxxxxxx'x continued employment
with ASA; and
WHEREAS, ASA Holdings became the parent company of ASA in a holding company
reorganization that was effective at the Effective Time (the "REORGANIZATION"),
and as part of the Reorganization each issued and outstanding share of ASA's
voting stock was automatically converted into a share of ASA Holdings' voting
stock;
WHEREAS, ASA Holdings, ASA and Xxxxxxx wish to amend the ASA Agreement to
provide to Xxxxxxx essentially the same compensation with respect to ASA
Holdings in the event of a change of control as he had with respect to ASA prior
to the Reorganization.
NOW, THEREFORE, the parties, for and in consideration of Xxxxxxx'x
continued employment with ASA Holdings and ASA and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, to
contract and agree as follows:
1. EFFECTIVE DATE. The effective date of the ASA Agreement was June 27,
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1990. The effective date (the "EFFECTIVE DATE") of this amendment of the ASA
Agreement shall be the Effective Time.
2. CHANGE IN CONTROL. For the purposes of this Agreement, a "CHANGE IN
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CONTROL" shall mean ownership of more than fifty percent (50%) of the shares of
ASA Holdings' voting stock by any single entity or group.
3. COMPENSATION. In the event Xxxxxxx ceases to be an employee of ASA
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Holdings within two (2) years after a Change in Control, ASA Holdings and ASA
hereby agree to pay to Xxxxxxx upon such termination of employment (whether by
resignation, discharge with or without cause or otherwise) severance
compensation in an amount equal to the lesser of: (i) an amount equal to two (2)
multiplied by Xxxxxxx'x xxxxx compensation from ASA Holdings and its
subsidiaries accrued with respect to the twelve (12) month period ending on the
last day of the last calendar month ending on or before the date of the Change
in Control, or (ii) the maximum amount which may be paid to Xxxxxxx which is
deductible to ASA Holdings on a consolidated basis under Section 280G of the
Internal Revenue Code of 1986, as now or hereafter amended.
4. AMENDMENT. This Agreement may not be changed orally but only by and
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agreement in writing signed by ASA Holdings, ASA and Xxxxxxx.
5. BINDING EFFECT. All the terms of this Agreement shall be binding upon
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an inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
6. CAPTIONS AND SECTION HEADINGS. Captions and section headings used
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herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
7. GOVERNING LAW. This Agreement and the rights of the parties hereto
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shall be governed by and construed or enforced in accordance with the laws of
the State of Georgia.
IN WITNESS WHEREOF, this Agreement is executed by the parties hereto on the
date first written above.
/s/ Xxxxxx X. Xxxxxxx (SEAL)
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XXXXXX X. XXXXXXX
ASA HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Secretary
(CORPORATE SEAL)
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Secretary
(CORPORATE SEAL)
AMENDMENT TO THE
AMENDED AND RESTATED
FOUNDING OFFICER AGREEMENT
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED FOUNDING
OFFICER AGREEMENT (the "Agreement") is made and entered into by and between ASA
Holdings, Inc. ("Holdings"), Atlantic Southeast Airlines, Inc. ("ASA"), and
XXXXXX X. XXXXXXX ("Xxxxxxx") this 15th day of February, 1999.
WITNESSETH:
WHEREAS, the Agreement provides that it may be amended in
writing signed by ASA, Holding and Xxxxxxx; and
WHEREAS, Holdings, ASA and Xxxxxxx wish to amend this
agreement.
NOW, THEREFORE, the Parties agree as follows:
The definition of "Change in Control" in Section 2 of the
Agreement is hereby amended in its entirety to read as follows:
"Change in Control" shall mean the occurrence of any
one or more of the following events: (i) acquisition of at
least twenty-five percent (25%) of the voting stock of the
Company by any single entity or group other than Delta Air
Lines, Inc. or a subsidiary thereof, the Company, a subsidiary
or an employee benefit plan (or trust forming a part thereof)
maintained by the Company or a subsidiary, (ii) ownership of
more than fifty percent (50%) of the voting stock of the
Company by Delta Air Lines, Inc. or a subsidiary thereof,
(iii) individuals who constitute the Board on February 14,
1999 (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any
person becoming a director subsequent to February 14, 1999,
whose election or nomination for election was approved by a
vote of at least three-quarters of the directors comprising
the Incumbent Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person is
named as a nominee for director, without objection to such
nomination) shall be, for purpose of this clause, considered
as though such person were a member of the Incumbent Board;
provided, however, that no individual initially elected or
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nominated as a director of the Company as a result of an
actual or threatened election contest with respect to
directors of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than
the Board shall be deemed to be a member of the Incumbent
Board, (iv) the sale or disposition of all or substantially
all of the assets of the Company, (v) consummation of a
reorganization, merger or consolidation or similar form of
corporate transaction involving the Company, unless,
immediately following such transaction more than 50% of the
total voting power of the publicly traded corporation
resulting from such transaction eligible to elect directors of
such corporation would be represented by shares that were
Company voting stock immediately prior to such transaction,
and such voting power would be in substantially the same
proportion as the voting power of such Company voting stock
immediately prior to the transaction, or (vi) approval by the
Board of any tender offer for shares of voting stock of the
Company. Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any person
acquires beneficial ownership of more than 25% of the Company
voting stock as a result of the acquisition of Company voting
stock by the Company which reduces the number of Company
voting stock outstanding; provided, that if after such
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acquisition by the Company such person becomes the beneficial
owner of additional Company voting stock that increases the
percentage of outstanding Company voting stock beneficially
owned by such person, a Change in Control of the Company shall
then occur.
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IN WITNESS WHEREOF, ASA Holdings, Inc. has caused this Second
Amendment to the Plan to be executed by its duly authorized officer this ____
day of February 1999.
EMPLOYER:
ASA HOLDINGS, INC.
By: /s/ Authorized Officer
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Title: (signature illegible)
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ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Authorized Officer
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Title: (signature illegible)
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Xxxxxx X. Xxxxxxx
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