DELTA 2008 LONG-TERM INCENTIVE PROGRAM AWARD AGREEMENT
Exhibit
99.2
DELTA
2008 LONG-TERM INCENTIVE PROGRAM
[DATE]
[Name]
This
Award Agreement (the “Agreement”),
describes some of the terms of your award (the “Award”) under the
Delta 2008 Long-Term Incentive Program (which is subject to the Delta 2007
Performance Compensation Plan) (the “2008
LTIP”). Your Award is subject to the terms of the 2008 LTIP
and this Agreement. Words beginning with a capital letter which are
used but not otherwise defined in this Agreement have the meaning set forth in
the 2008 LTIP. In order for this Award to become effective, you must
accept the Award in accordance with the terms of Section 9 below.
1.
Summary
of Award. Subject to your
acceptance, your Award will include a Nonqualified Stock Option, Restricted
Stock and a Performance Award as described below. Terms applicable to
your Award, including vesting and forfeitability, are included in the 2008
LTIP.
(a) Nonqualified
Stock Options. You are hereby awarded, as of [DATE] (the
“Grant Date”),
a Nonqualified Stock Option (the “Stock Option”)
exercisable for [NUMBER] shares of Delta Common Stock, par value $0.0001 per
share (“Common
Stock”). The exercise price of the Stock Option will be the
closing price of a share of Common Stock on the NYSE on the Grant
Date.
(b) Restricted
Stock. You are hereby awarded [NUMBER] shares of Restricted
Stock effective as of the Grant Date.
(c) Performance
Award. You are hereby awarded a Performance Award for [NUMBER]
shares of Common Stock at the target level.
2. Restrictive
Covenants. In exchange for the
Award, you hereby agree as follows:
(a) Trade
Secrets. You hereby
acknowledge that during the term of your employment with Delta Air Lines, Inc.,
its subsidiaries and affiliates (“Delta”), you have
acquired and will continue to acquire knowledge of secret, confidential and
proprietary information regarding Delta and its business that fits within the
definition of “trade secrets” under the law of the State of Georgia, including,
without limitation, information regarding Delta’s present and future operations,
its financial operations, marketing plans and strategies, alliance agreements
and relationships, its compensation and incentive programs for employees, and
the business methods used by Delta and its employees, and other information
which derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use, and is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy
(each, a “Trade
Secret”). You hereby agree that for so long as such
information remains a Trade Secret as defined by Georgia law, you will hold in a
fiduciary capacity for the benefit of Delta and shall not directly or indirectly
make use of, on your own behalf or on behalf of others, any Trade Secret, or
transmit, reveal or disclose any Trade Secret to any person, concern or
entity. Nothing in this Agreement is intended, or shall be construed,
to limit the protections of any applicable law protecting trade
secrets.
(b) Confidential or
Proprietary Information. You further
agree that you will hold in a fiduciary capacity for the benefit of Delta, and,
during the term of your employment with Delta and for the two year period after
such employment terminates, shall not directly or indirectly use or disclose,
any Confidential or Proprietary Information, as defined hereinafter, that you
acquire (whether or not developed or compiled by you and whether or not you were
authorized to have access to such Confidential or Proprietary Information)
during the term of, in the course of, or as a result of your employment by
Delta. Subject to the provisions set forth below, the term “Confidential or Proprietary
Information” as used in this Agreement means the following secret,
confidential and proprietary information of Delta not otherwise included in the
definition of Trade Secret: all marketing, alliance, advertising and
sales plans and strategies; all pricing information; all financial, advertising
and product development plans and strategies; all compensation and incentive
programs for employees; all alliance agreements, plans and processes; all plans,
strategies, and agreements related to the sale of assets; all third party
provider agreements, relationships, and strategies; all business methods and
processes used by Delta and its employees; all personally identifiable
information regarding Delta employees, contractors, and applicants; and all
lists of actual or potential customers or suppliers maintained by
Delta. The term “Confidential and Proprietary Information” does not
include information that has become generally available to the public by the act
of one who has the right to disclose such information. Nothing in
this Agreement is intended, or shall be construed, to limit the protections of
any applicable law protecting confidential or proprietary
information.
(c) Employee
Non-Solicitation Agreement. During the term of your employment
with Delta and during the one-year period following the termination of such
employment, you will not directly or indirectly (on your own behalf or on behalf
of any other person, company, partnership, corporation or other entity), employ
or solicit for employment any individual who is a management or
professional employee of Delta for
employment with any entity or person other than Delta or solicit, encourage or
induce any such person to terminate their employment with Delta. The
restrictions set forth in this Section shall be limited to those Delta
management or professional employees who: (i) were employed by Delta during your
employment in a supervisory or administrative job; and (ii) with whom you had
material professional contact during your employment with Delta.
(d) Non-Competition
Agreement. During the term
of your employment with Delta and for the one-year period following the
termination of such employment, you will not on your own behalf or on behalf of
any person, firm, partnership, association, corporation or business
organization, entity or enterprise, provide the same or substantially similar
services, as an employee, consultant, partner, or in any other capacity, to any
of the following entities, which you hereby acknowledge are all competitors of
Delta: AMR Corporation, American Airlines, Inc., Continental
Airlines, Inc., Southwest Airlines Co., UAL Corporation, United Air Lines, Inc.,
US Airways, Inc., Jet Blue Airways, Inc., AirTran Airways, Inc., or Northwest
Airlines, Inc. (individually and collectively, the “Competitor”). This
restriction shall only apply to the extent that you may not provide services to
the Competitor: (a) while working within a fifty (50) mile radius of
the city limits of Atlanta, Georgia; or (b) while working out of or within a
fifty (50) mile radius of the corporate headquarters of the
Competitor.
(e) Return of
Property. You hereby agree
that all property belonging to Delta, including records, files, memoranda,
reports, personnel information (including benefit files, training records,
customer lists, operating procedure manuals, safety manuals, financial
statements, price lists and the like), relating to the business of Delta, with
which you come in contact in the course of your employment (hereinafter “Delta’s Materials”)
shall, as between the parties hereto, remain the sole property of
Delta. You hereby warrant that you shall promptly return all
originals and copies of Delta’s Materials to Delta at the time your employment
terminates.
(f) Cooperation. You hereby agree that
you shall, both during and after your employment with Delta, to the extent
requested in writing and reasonable under the circumstances, cooperate with and
serve in any capacity requested by Delta in any pending or future litigation in
which Delta has an interest, and regarding which you, by virtue of your
employment with Delta, have knowledge or information relevant to the
litigation.
3. Dispute
Resolution.
(a) Arbitration. You
hereby agree that except as expressly set forth below, all disputes and any
claims arising out of or under or relating to the Award or this Agreement,
including without limitation any dispute or controversy as to the validity,
interpretation, construction, application, performance, breach or enforcement of
this Agreement, shall be submitted for, and settled by, mandatory, final and
binding arbitration in accordance with the Commercial Arbitration Rules then
prevailing of the American Arbitration Association. Unless an
alternative locale is otherwise agreed in writing by the parties to this
Agreement, the arbitration shall be conducted in the City of Wilmington,
Delaware. The arbitrator will apply Delaware law to the merits of any
dispute or claim without reference to rules of conflicts of law. Any
award rendered by the arbitrator shall provide the full remedies available to
the parties under the applicable law and shall be final and binding on each of
the parties hereto and their heirs, executors, administrators, successors and
assigns and judgment may be entered thereon in any court having
jurisdiction. You hereby consent to the personal jurisdiction of the
state and federal courts in the State of Delaware for any action or proceeding
arising from or relating to any arbitration under this Agreement. The
prevailing party in any such arbitration shall be entitled to an award by the
arbitrator of all reasonable attorneys’ fees and expenses incurred in connection
with the arbitration. However, Delta will pay all fees associated
with the American Arbitration Association and the arbitrator. All
parties must initial here for this Section 3 to be effective:
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Delta
Air Lines, Inc. [NAME]
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(b) Injunctive Relief
in Aid of Arbitration; Forum Selection. You hereby acknowledge
and agree that the provisions contained in Section 2 of this Agreement are
reasonably necessary to protect the legitimate business interests of Delta, and
that any breach of any of these provisions will result in immediate and
irreparable injury to Delta for which monetary damages will not be an adequate
remedy. You further acknowledge that if any such provision is
breached or threatened to be breached, Delta will be entitled to seek a
temporary restraining order, preliminary injunction or other equitable relief in
aid of arbitration in any court of competent jurisdiction without the necessity
of posting a bond, restraining you from continuing to commit any violation of
the covenants, and you hereby irrevocably consent to the jurisdiction of the
state and federal courts of the State of Delaware, with venue in Wilmington,
which shall have jurisdiction to hear and determine any claim for a temporary
restraining order, preliminary injunction or other equitable relief brought
against you by Delta in aid of arbitration.
(c) Consequences of
Breach. Furthermore, you
acknowledge that, in partial consideration for the Award described in the 2008
LTIP and this Agreement, Delta is requiring that you agree to and comply with
the terms of Section 2 and you hereby agree that without limiting any of the
foregoing, should you violate any of the covenants included in Section 2 above,
you will not be entitled to and shall not receive any Awards under the 2008 LTIP and
this Agreement and any outstanding Awards will be forfeited.
(d) Tolling. You further agree
that in the event the enforceability of any of the restrictions as set forth in
Section 2 of this Agreement are challenged and you are not preliminarily or
otherwise enjoined from breaching such restriction(s) pending a final
determination of the issues, then, if an arbitrator finds that the challenged
restriction(s) is enforceable, the time period set forth in such Section shall
be deemed tolled upon the filing of the arbitration or action seeking injunctive
or other equitable relief in aid of arbitration, whichever is first in time,
until the dispute is finally resolved and all periods of appeal have
expired.
(e)
Governing
Law. Unless governed
by federal law, this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws of that State.
(f) Waiver of Jury
Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION
WITH ANY MATTER ARISING OUT OF, UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATED
TO THIS AGREEMENT. THIS INCLUDES, WITHOUT LIMITATION, ANY DISPUTE
CONCERNING ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL
OR WRITTEN), OR ACTION OF DELTA OR YOU, OR ANY EXERCISE BY DELTA OR YOU OF OUR
RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS
AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT FOR DELTA TO ISSUE AND ACCEPT THIS AGREEMENT.
4.
Validity;
Severability. In the event that
one or more of the provisions contained in this Agreement shall for any reason
be held invalid, illegal, or unenforceable in any respect, such holding shall
not affect any other provisions in this Agreement, but this Agreement shall be
construed as if such invalid, illegal, or unenforceable provisions had never
been contained herein. The invalidity, illegality or unenforceability
of any provision or provisions of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which will remain in
full force and effect.
5. Authority
of the Committee. You acknowledge and agree that the Committee
has the sole and complete authority and discretion to construe and interpret the
terms of the 2008 LTIP and this Agreement. All determinations of the
Committee shall be final and binding for all purposes and upon all persons,
including, without limitation, you and the Company, and your heirs and
successors. The Committee shall be under no obligation to construe
this Agreement or treat the Award in a manner consistent with the treatment
provided with respect to other Awards or Participants.
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6. Amendment. This Agreement may not be
amended or modified except by written agreement signed by you and
Delta.
7. Acknowledgement. By signing this
Agreement: (a) you acknowledge that you have had a full and adequate
opportunity to read this Agreement and you agree with every term and provision
herein, including without limitation, the terms of Sections 2, 3, 4, and 5; (b)
you acknowledge that you have received and had a full and adequate opportunity
to read the 2008 LTIP; (c) you agree, on behalf of yourself and on behalf of any
designated beneficiary and your heirs, executors, administrators and personal
representatives, to all of the terms and conditions contained in this Agreement
and the 2008 LTIP; and (d) you consent to receive all material regarding any
awards under the 2008 LTIP, including any prospectuses, electronically with an
e-mail notification to your work e-mail address.
8. Entire
Agreement. This Agreement,
together with the 2008 LTIP (the terms of which are made a part of this
Agreement and are incorporated into this Agreement by reference), constitutes
the entire agreement between you and Delta with respect to the
Award.
9. Acceptance
of this Award. If you agree to
all of the terms of this Agreement and would like to accept this Award, you must
sign and date the Agreement where indicated below and return an original signed
version of this Agreement to Xxxx Xxxxxx, either by hand or by mail to
Department 936, X.X. Xxx 00000, Xxxxxxx, Xxxxxxx 00000. If you have
any questions regarding how to accept your Award, please contact Xx. Xxxxxx at
(000) 000-0000. Delta hereby acknowledges and agrees that its legal
obligation to make the Award to you shall become effective when you sign this
Agreement.
You and
Delta, each intending to be bound legally, agree to the matters set forth above
by signing this Agreement, all as of the date set forth below.
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DELTA
AIR LINES, INC.
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By:
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Name:
Title:
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PARTICIPANT
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[NAME]
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Date:
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