EXHIBIT 99.3
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement (the "Agreement")
between World Airways, Inc., a Delaware corporation ("World" or the "Company")
and XXXXXXXX X. XXXXXX, XX. ("Xxxxxx) is entered into this 6TH DAY OF MAY 2004,
and restates, amends and replaces in its entirety without a break in continuity,
the Amended and Restated Employment Agreement dated January 22, 1999, as amended
May 1, 2001 and May 1, 2003.
WHEREAS, XXXXXX has agreed to continue to serve as World's Chief Financial
Officer.
WHEREAS, both parties wish to extend the Term of this Agreement
NOW, THEREFORE, World and XXXXXX, 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 XXXXXX and XXXXXX accepts such employment.
2. TERM. The period of employment shall be from AUGUST 1, 1998, through
DECEMBER 31, 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 31, 2007 XXXXXX shall initiate discussions with the Chief Executive Officer
(hereinafter "CEO") regarding the renewal of this Agreement. At that time, if
XXXXXX wishes to renew this Agreement on different terms, XXXXXX 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
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give written notice to XXXXXX no later than JUNE 30, 2007.
3. POSITION AND DUTIES. XXXXXX shall continue to serve as CHIEF
FINANCIAL OFFICER with the duties performed as of MAY 1, 2001. The CEO will have
reasonable latitude to make changes in XXXXXX'X responsibilities, except that
XXXXXX'X responsibilities may not be modified in a way that would be
inconsistent with the status of CHIEF FINANCIAL OFFICER. Following a Change of
Control (as hereinafter defined), XXXXXX'X responsibilities may not be changed
without mutual agreement. XXXXXX 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. XXXXXX shall devote all of his working time, attention,
knowledge and skills solely to the business and interests of World. XXXXXX 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. XXXXXX 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. XXXXXX shall receive a minimum salary of $200,000
per annum payable in accordance with the payroll procedures for World's salaried
employees in effect during the term of this Agreement. XXXXXX agrees to
participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) PERFORMANCE STOCK OPTIONS. XXXXXX has been granted 250,000
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
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Stock Option Agreements between World and XXXXXX dated AUGUST 1, 1998, JANUARY
22, 1999, APRIL 2, 1999, OCTOBER 30, 2000 AND FEBRUARY 13, 2003 (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. XXXXXX 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. XXXXXX 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, XXXXXX
may participate in World's health and other benefit programs for a period of one
year from the date of XXXXXX'X termination, or until XXXXXX obtains comparable
coverage, whichever is earlier.
(e) PERSONNEL POLICIES, CONDITIONS AND BENEFITS. Except as
otherwise provided herein, XXXXXX'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, XXXXXX 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 XXXXXX
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
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(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 XXXXXX 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 1, 1998,
between XXXXXX and World Airways, Inc. (the "Indemnity Agreement").
5. TERMINATION OF EMPLOYMENT.
(a) DEATH. XXXXXX'X employment hereunder shall terminate upon his
death, in which event World shall have no further obligation to XXXXXX 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 XXXXXX 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 XXXXXX, in which event World shall have no obligation to XXXXXX with respect
to compensation under Section 4(a) of this Agreement. If XXXXXX 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 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 XXXXXX 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
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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, XXXXXX 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,
XXXXXX was guilty of conduct set forth in 5(c)(i)(A), or (B), provided, however,
that XXXXXX may not be terminated for Cause hereunder unless: (1) XXXXXX
receives prior written notice of World's intention to terminate this Agreement
for Cause and the specific reasons therefore; and (2) XXXXXX 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 XXXXXX
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 XXXXXX 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 XXXXXX under this
paragraph is subject to any federal or state excise tax, World shall pay to
XXXXXX 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
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the excise tax and income taxes are due; provided, however, that XXXXXX agrees
to assist World Airways by using his best efforts to structure matters so that
any payment to XXXXXX 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 XXXXXX 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 XXXXXX in connection with any dispute with any
taxing authority with respect to such determinations and/or payments.
(e) BY XXXXXX FOR GOOD REASON. XXXXXX may terminate his employment
hereunder (for purposes of this Agreement "Good Reason") after giving at least
30 days notice in the event that, without XXXXXX'X consent, (i) World relocates
its general and administrative offices or XXXXXX'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 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 XXXXXX'X consent, to pay XXXXXX
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 XXXXXX participates
which is material to XXXXXX'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 XXXXXX'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
XXXXXX'X participation relative to other participants; (vi) World fails to
continue to provide XXXXXX with benefits
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substantially similar to those enjoyed by XXXXXX under any of World's pension,
life insurance, medical, health and accident, or disability plans in which
XXXXXX was participating, World takes any action which would directly or
indirectly materially reduce any of such benefits or deprive XXXXXX of any
material fringe benefit enjoyed by XXXXXX; (vii) World terminates, or proposes
to terminate, XXXXXX'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 Xxxxxx'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 XXXXXX 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 XXXXXX FOR OTHER THAN GOOD REASON. Notwithstanding the
above, XXXXXX may upon giving reasonable notice, not to be less than 30 days,
terminate this Agreement without further obligation on the part of XXXXXX 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
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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 their subsidiaries or affiliates; (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of World 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 in substantially the same proportions
as their ownership of stock of World.
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(i) NOTICE OF TERMINATION. Termination of this Agreement by World
or termination of this Agreement by XXXXXX 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 XXXXXX'X employment,
whether voluntary or involuntary, XXXXXX shall return all company property,
including without limitation all electronic and paper files and documents and
all copies thereof.
6. CONFIDENTIALITY. (a) XXXXXX recognizes and acknowledges that she
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. XXXXXX 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
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(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 XXXXXX 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 current or future parents, subsidiaries, affiliated
companies, and divisions.
7. BENEFICIARY. The Beneficiary of any payment due and payable at the
time of XXXXXX'X death, or otherwise due upon his death, shall be such person or
persons, as XXXXXX shall designate in writing to World. If no such beneficiary
shall survive XXXXXX, 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 XXXXXX, either solely or jointly with
other person(s), (1) during XXXXXX'X period of employment by World, during
working hours; (2) during the period after termination of his 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 XXXXXX.
(b) XXXXXX agrees to inform World promptly and in full of such
intellectual property
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by a full written report setting forth in detail the procedures used and the
results achieved.
(c) XXXXXX 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) XXXXXX 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. XXXXXX 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.
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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.
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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/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
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