EXHIBIT 99.2
EMPLOYMENT AGREEMENT
This Employment Agreement between World Airways, Inc., a Delaware
corporation ("World" or the "Company") and XXXXXX X. XXXXX ("Xxxxx") is entered
into this 26TH day of APRIL 2004.
WHEREAS, XXXXX has agreed to serve as World's SENIOR VICE PRESIDENT
MARKETING AND PLANNING as of APRIL 26, 2004.
NOW, THEREFORE, World and XXXXX, 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 XXXXX and XXXXX accepts such employment.
2. TERM. The period of employment shall be from APRIL 26, 2004, THROUGH
MAY 6, 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
OCTOBER 6, 2006, XXXXX shall initiate discussions with the Chief Executive
Officer (hereinafter "CEO") regarding the renewal of this Agreement. At that
time, if XXXXX wishes to renew this Agreement on different terms, XXXXX 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 give
written notice to XXXXX no later than NOVEMBER 6, 2006.
3. POSITION AND DUTIES. XXXXX shall serve as SENIOR VICE PRESIDENT
MARKETING & PLANNING with duties performed as of the date hereof, as those
duties may be changed from time to time. The CEO will have reasonable latitude
to make changes in XXXXX' responsibilities, except that XXXXX' responsibilities
may not be modified in a way that would be inconsistent with the status of
SENIOR VICE PRESIDENT MARKETING AND PLANNING. Following a Change of Control (as
hereinafter defined),
XXXXX' responsibilities may not be changed without mutual agreement. XXXXX
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. XXXXX shall
devote all of his working time, attention, knowledge and skills solely to the
business and interests of World. XXXXX 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. XXXXX 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. XXXXX shall receive a minimum salary of $180,000 per
annum payable in accordance with the payroll procedures for World's salaried
employees in effect during the term of this Agreement. XXXXX agrees to
participate equally, on a percentage basis, in any across the board salary
reductions approved by senior management.
(b) PERFORMANCE STOCK OPTIONS. XXXXX has been granted 100,000 OPTIONS to
purchase World's Common Stock, par value $.001 per share ("World Airways Common
Stock") pursuant to the World Airways, Inc. Amended and Restated 1995 Stock
Incentive Plan (the "Plan") as set forth in the Stock Option Agreement between
World and Xxxxx dated MAY 6, 2004 (the "Option Agreement"). In the event of a
Change in Control as defined below, all Options shall be immediately
exercisable.
(c) BUSINESS EXPENSES. XXXXX 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. XXXXX 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, XXXXX
may participate in World's health and other benefit programs for a period of one
year from the date of XXXXX' termination, or until XXXXX obtains comparable
coverage, whichever is earlier.
(e) PERSONNEL POLICIES, CONDITIONS AND BENEFITS. Except as otherwise
provided herein, XXXXX' 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, XXXXX 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 XXXXX
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
his being or having been an officer, director or employee of World or any
affiliated entity, advance expenses (including attorneys' fees) incurred by
XXXXX 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 APRIL 26, 2004, between XXXXX and World Airways, Inc. (the
"Indemnity Agreement").
5. TERMINATION OF EMPLOYMENT.
(a) DEATH. XXXXX' employment hereunder shall terminate upon his death, in
which event World shall have no further obligation to XXXXX 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 XXXXX 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 XXXXX, in which event World shall have no obligation to XXXXX with respect to
compensation under Section 4(a) of this Agreement. If XXXXX becomes entitled to
Social Security benefits payable on account of disability, he 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
Chairman of the Board may terminate this Agreement for Cause.
"Cause" shall be defined as (A) sustained performance deficiencies
which are communicated to XXXXX 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, XXXXX
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, XXXXX was guilty of conduct set
forth in 5(c)(i)(A), or (B), provided, however, that XXXXX may not
be terminated for Cause hereunder unless: (1) XXXXX receives prior
written notice of World's intention to terminate this Agreement for
Cause and the specific reasons therefore; and (2) XXXXX 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 XXXXX 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 XXXXX 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) twelve
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 XXXXX under this paragraph is
subject to any federal or state excise tax, World shall pay to XXXXX 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 XXXXX agrees to assist World Airways by using
his best efforts to structure matters so that any payment to XXXXX 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 XXXXX
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 XXXXX in connection with
any dispute with any taxing authority with respect to such determinations and/or
payments.
(e) BY XXXXX FOR GOOD REASON. XXXXX may terminate his employment hereunder
(for purposes of this Agreement "Good Reason") after giving at least 30 days
notice in the event that, without XXXXX' consent, (i) World relocates its
general and administrative offices or XXXXX' place of employment to an area
other than the Atlanta, Georgia Standard Metropolitan Statistical Area, (ii) he
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
XXXXX' consent, to pay XXXXX 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 Xxxxx participates which is material to XXXXX' 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 XXXXX'
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 XXXXX' participation relative to other participants; (vi) World
fails to continue to provide XXXXX with benefits substantially similar to those
enjoyed by XXXXX under any of World's pension, life insurance, medical, health
and accident, or disability plans in which XXXXX was participating, World takes
any action which would directly or indirectly materially reduce any of such
benefits or deprive XXXXX of any material fringe benefit enjoyed by XXXXX; (vii)
World terminates, or proposes to terminate, XXXXX' 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 XXXXX' 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 XXXXX 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 XXXXX FOR OTHER THAN GOOD REASON. Notwithstanding the above, XXXXX
may upon giving reasonable notice, not to be less than 30 days, terminate this
Agreement without further obligation on the part of XXXXX 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 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 its subsidiaries or affiliates; (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of World or any of
its 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.
(i) NOTICE OF TERMINATION. Termination of this Agreement by World or
termination of this Agreement by XXXXX 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 XXXXX' employment, whether
voluntary or involuntary, XXXXX shall return all company property, including
without limitation all electronic and paper files and documents and all copies
thereof.
6. CONFIDENTIALITY.
(a) XXXXX recognizes and acknowledges that he 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. XXXXX agrees that he 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 he 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 XXXXX 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
(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 XXXXX' death, or otherwise due upon his death, shall be such person or
persons, as XXXXX shall designate in writing to World. If no such beneficiary
shall survive XXXXX, 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 XXXXX, either solely or jointly with other person(s), (1) during XXXXX'
period of employment by World, during working hours; (2) during the period after
termination of his employment during which he 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 XXXXX.
(b) XXXXX 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) XXXXX 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) XXXXX 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. XXXXX 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.
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.
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/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
