Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement between World Airways, Inc., a Delaware
corporation ("World" or the "Company") and Xxxxx X. Xxxxxxx ("Xxxxxxx") is
entered into this 16/th/ day of January, 2002.
WHEREAS, Xxxxxxx has agreed to continue to serve as World's General Counsel
and Corporate Secretary as of January 16, 2002.
NOW, THEREFORE, World and Xxxxxxx, 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
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below, World agrees to employ Xxxxxxx and Xxxxxxx accepts such employment.
2. Term. The period of employment shall be from January 16, 2002, through
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December 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
July 1, 2005, Xxxxxxx shall initiate discussions with the Chairman of the Board
(hereinafter "Chairman") regarding the renewal of this Agreement. At that time,
if Xxxxxxx wishes to renew this Agreement on different terms, Xxxxxxx 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 Xxxxxxx no later than July 1, 2005.
3. Position and Duties. Xxxxxxx shall continue to serve as General Counsel
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and Corporate Secretary with the duties performed as of January 16, 2002. The
Chairman will have reasonable latitude to make changes in Xxxxxxx'x
responsibilities, except that Xxxxxxx'x responsibilities may not be modified in
a way that would be inconsistent with the status of General Counsel and
Corporate Secretary. Following a Change of Control (as hereinafter defined),
Xxxxxxx'x responsibilities may not be changed without mutual agreement. Xxxxxxx
agrees to render her services to the best of her abilities and will comply with
all policies, rules and regulations of the company and will advance and promote
to the best of her ability the business and welfare of the
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Company. Xxxxxxx shall devote all of her working time, attention, knowledge and
skills solely to the business and interests of World. Xxxxxxx may not accept any
other engagement with or without compensation which would affect her ability to
devote all of her working time and attention to the business and affairs of
World without the prior written approval of the Chairman of the Board. Xxxxxxx
agrees to accept assignments on behalf of World or affiliated companies
commensurate with her 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.
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(a) Base Salary. Xxxxxxx shall receive a minimum salary of $175,000 per
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annum payable in accordance with the payroll procedures for World's salaried
employees in effect during the term of this Agreement. Xxxxxxx agrees to
participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) Performance Stock Options. Xxxxxxx has been granted 125,000 options
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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 Xxxxxxx dated July
16, 2001, and January 16, 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. Xxxxxxx shall be entitled to reimbursement of
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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. Xxxxxxx shall be entitled to participate in all
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employee benefit plans made available from time to time to all executives of
World in accordance with the terms of such
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plans. In the event this Agreement is terminated by either party for any reason
other than death or for cause, Xxxxxxx may participate in World's health and
other benefit programs for a period of one year from the date of Xxxxxxx'x
termination, or until Xxxxxxx obtains comparable coverage, whichever is earlier.
(e) Personnel Policies, Conditions and Benefits. Except as otherwise
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provided herein, Xxxxxxx'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, Xxxxxxx 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
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Agreement, World shall provide (or cause to be provided) to Xxxxxxx
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
her being or having been an officer, director or employee of World or any
affiliated entity, advance expenses (including attorneys' fees) incurred by
Xxxxxxx 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 July 16, 2001, between Xxxxxxx and World Airways, Inc. (the
"Indemnity Agreement").
5. Termination of Employment.
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(a) Death. Xxxxxxx'x employment hereunder shall terminate upon her
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death, in which event World shall have no further obligation to Xxxxxxx or her
estate with respect to
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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 Xxxxxxx is unable, or fails, to perform
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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 Xxxxxxx, in which event World shall have no obligation to Xxxxxxx with
respect to compensation under Section 4(a) of this Agreement. If Xxxxxxx becomes
entitled to Social Security benefits payable on account of disability, she 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
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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 Xxxxxxx 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, Xxxxxxx 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, Xxxxxxx was guilty
of conduct set forth in 5(c)(i)(A), or (B), provided, however, that Xxxxxxx may
not be terminated for Cause hereunder unless: (1) Xxxxxxx receives prior written
notice of World's intention to terminate this Agreement for Cause and the
specific reasons therefore; and (2) Xxxxxxx has an opportunity to be heard by
World's Board and be given, if the acts are correctable, a reasonable
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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 Xxxxxxx 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
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this Agreement for reasons other than Cause or Disability as defined in
sub-paragraph (c) above, World will pay to Xxxxxxx 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 Xxxxxxx under this
paragraph is subject to any federal or state excise tax, World shall pay to
Xxxxxxx 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 Xxxxxxx agrees to assist World
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Airways by using her best efforts to structure matters so that any payment to
Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx in connection with any dispute with any taxing authority
with respect to such determinations and/or payments.
(e) By Xxxxxxx for Good Reason. Xxxxxxx may terminate her employment
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hereunder (for purposes of this Agreement "Good Reason") after giving at least
30 days notice in the event that,
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without Xxxxxxx'x consent, (i) World relocates its general and administrative
offices or Xxxxxxx'x place of employment to an area other than the Atlanta,
Georgia Standard Metropolitan Statistical Area, (ii) she is assigned any duties
substantially inconsistent with Section 3 hereof, (iii) World reduces her 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 Xxxxxxx'x consent, to pay Xxxxxxx any portion of her current
compensation, or to pay her 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 Xxxxxxx participates which is material to
Xxxxxxx'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 Xxxxxxx'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 Xxxxxxx'x participation relative to
other participants; (vi) World fails to continue to provide Xxxxxxx with
benefits substantially similar to those enjoyed by Xxxxxxx under any of World's
pension, life insurance, medical, health and accident, or disability plans in
which Xxxxxxx was participating, World takes any action which would directly or
indirectly materially reduce any of such benefits or deprive Xxxxxxx of any
material fringe benefit enjoyed by Xxxxxxx; (vii) World terminates, or proposes
to terminate, Xxxxxxx'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 Xxxxxxx decides to terminate this Agreement and her 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 Xxxxxxx for Other Than Good Reason. Notwithstanding the above,
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Xxxxxxx may upon giving reasonable notice, not to be less than 30 days,
terminate this Agreement without further obligation on the part of Xxxxxxx or
World.
(g) Changes of Control. For purposes of this Agreement, a "Change of
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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
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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
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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
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termination of this Agreement by Xxxxxxx 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 Xxxxxxx'x employment,
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whether voluntary or involuntary, Xxxxxxx shall return all company property,
including without limitation all electronic and paper files and documents and
all copies thereof.
6. Confidentiality. (a) Xxxxxxx recognizes and acknowledges that she will
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acquire during her 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
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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. Xxxxxxx agrees that she 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 she 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 Xxxxxxx 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.
(c) References in this Section 6 to "World" include World Airways, Inc.
and any and all of its
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current or future parents, subsidiaries, affiliated companies, and divisions.
7. Beneficiary. The Beneficiary of any payment due and payable at the time
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of Xxxxxxx'x death, or otherwise due upon her death, shall be such person or
persons, as Xxxxxxx shall designate in writing to World. If no such beneficiary
shall survive Xxxxxxx, any such payments shall be made to her estate.
8. Intellectual Property. (a) Any improvements, new techniques, processes,
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inventions, works, discoveries, products or copyrightable or patentable
materials made or conceived by Xxxxxxx, either solely or jointly with other
person(s), (1) during Xxxxxxx'x period of employment by World, during working
hours; (2) during the period after termination of her employment during which
she 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 Xxxxxxx.
(b) Xxxxxxx 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) Xxxxxxx 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) Xxxxxxx 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
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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,
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application and
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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. Xxxxxxx agrees to submit to personal
jurisdiction in the State of Georgia.
11. Validity. The invalidity or unenforceability of any provision or
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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
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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
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Agreement shall be valid unless in writing and duly executed by both parties.
14. Counterparts. This Agreement may be executed in one or more
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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: ____________________________
Xxxxxx X. Xxxxxx
Chairman, President and CEO
____________________________
Xxxxx X. Xxxxxxx
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