Exhibit 10.9
AMENDMENT AND WAIVER
Amendment and Waiver dated as of November 18, 2003 (this "AMENDMENT AND
WAIVER") between Delta Air Lines, Inc., a Delaware corporation (the "COMPANY"),
and Xxx X. Xxxxxx ("EXECUTIVE").
WHEREAS, Executive serves as Chairman of the Board of Directors of the
Company and is employed as Chief Executive Officer of the Company pursuant to
the terms of the Employment Agreement dated as of November 29, 2002 filed as
Exhibit 10.8 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002 (the "EMPLOYMENT AGREEMENT") between the Company and
Executive;
WHEREAS, on February 28, 2003, Executive consented to a 10% reduction
of his Base Salary (as defined in the Employment Agreement), effective March 1,
2003;
WHEREAS, on April 3, 2003, Executive announced that he had voluntarily
elected (i) to reduce his Base Salary by an additional 15% from the level that
existed immediately prior to March 1, 2003; (ii) to forego and waive his right
to an Annual Award (as defined in the Employment Agreement) for fiscal year
2003; (iii) to forego and waive his right to each of the three Renewal Awards
under the Employment Agreement; and (iv) to forego and waive his right to the
retention award granted to him on January 23, 2002 (the "2002 RETENTION AWARD")
under the Company's 2002 Retention Program (the "2002 RETENTION PROGRAM");
WHEREAS, on August 11, 2003, Executive announced that he had
voluntarily elected to forego and waive his right under the Excess Benefit
Agreement dated as of March 15, 2002 (the "EXCESS BENEFIT AGREEMENT") between
the Company and Executive to the Company's third and final contribution to
Executive's Employee Grantor Trust (as defined in the Excess Benefit Agreement);
and
WHEREAS, the Company and Executive believe it is desirable to
memorialize formally each of the matters described in the three immediately
preceding "WHEREAS" clauses of this Amendment and Waiver;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. 10% Reduction of Base Salary. Executive hereby affirms and
acknowledges that Executive consented to a 10% reduction of his Base Salary,
effective March 1, 2003, with such reduction to continue for so long as the
Personnel &
Compensation Committee of the Board of Directors of the Company (the
"COMMITTEE") determines in its sole discretion.
SECTION 2. Additional 15% Reduction of Base Salary. Executive hereby
affirms and acknowledges that, effective April 1, 2003, Executive voluntarily
elected to reduce his Base Salary by an additional 15% from the level that
existed immediately prior to March 1, 2003, with such reduction to continue
until Executive provides the Committee with a written notice that such reduction
shall be restored on a prospective basis.
SECTION 3. Waiver of Annual Award. Executive hereby affirms and
acknowledges that, effective April 3, 2003, Executive voluntarily elected to
forego and waive his right to receive an Annual Award with respect to fiscal
year 2003.
SECTION 4. Waiver of Renewal Awards. Executive hereby affirms and
acknowledges that, effective April 3, 2003, Executive voluntarily elected to
forego and waive his right to each of the three Renewal Awards which are
provided under Section 3.06(a), and set forth in Exhibits A, B and C, of the
Employment Agreement.
SECTION 5. Waiver of 2002 Retention Award. Executive hereby affirms and
acknowledges that, effective April 3, 2003, Executive voluntarily elected to
forego and waive his right to his 2002 Retention Award under the 2002 Retention
Program.
SECTION 6. Waiver of Funding Contribution. Executive hereby affirms and
acknowledges that, effective August 11, 2003, Executive voluntarily elected to
forego and waive his right under the Excess Benefit Agreement to the Company's
third and final contribution, scheduled to be made in 2004, to Executive's
Employee Grantor Trust.
SECTION 7. Effect of Amendment and Waiver. Except as expressly amended
or waived as set forth in this Amendment and Waiver, all of the provisions of
the Employment Agreement and the Excess Benefit Agreement shall remain in full
force and effect without modification or waiver. Notwithstanding the foregoing,
(i) nothing contained herein, in the Employment Agreement as modified or waived,
or the Excess Benefit Agreement as modified or waived, shall supercede the
Waiver dated as of July 24, 2003 (the "GOVERNMENT CONTRACT WAIVER") between the
Company and Executive relating to the compensation limits under the Emergency
Wartime Supplemental Appropriations Act of 2003 and (ii) the Government Contract
Waiver shall remain in full force and effect.
SECTION 8. Governing Law. This Amendment and Waiver shall be governed
by and construed in accordance with laws of the State of Georgia without
reference to principles of conflict of laws.
SECTION 9. Successors. This Amendment and Waiver shall be binding upon
the Company's successors and assigns and Executive's personal and legal
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representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees.
IN WITNESS WHEREOF, the Company and Executive have executed this
Amendment and Waiver.
EXECUTIVE DELTA AIR LINES, INC.
/s/ Xxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------- ------------------
Xxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Chairman, Personnel &
Compensation Committee
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