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EXHIBIT 10.6
EMPLOYEE BENEFITS SEPARATION AGREEMENT
by and among
CONTINENTAL AIRLINES, INC.,
EXPRESSJET HOLDINGS, INC.
and
EXPRESSJET AIRLINES, INC.
Dated as of _____________, 2001
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EMPLOYEE BENEFITS SEPARATION AGREEMENT
RECITALS
This EMPLOYEE BENEFITS SEPARATION AGREEMENT (this "Employee Benefits
Separation Agreement"), dated as of _________________, 2001, is by and among
Continental Airlines, Inc., a Delaware corporation ("Continental"), ExpressJet
Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of
Continental ("ExpressJet Holdings"), and ExpressJet Airlines, Inc., a Delaware
corporation and a wholly owned subsidiary of ExpressJet Holdings ("ExpressJet
Airlines").
WHEREAS, Continental, ExpressJet Holdings and ExpressJet Airlines
desire to enter into this Employee Benefits Separation Agreement with respect to
implementation of matters concerning employees and the separation of employee
benefits in connection with the contemplated Initial Public Offering and
subsequent divesture and other matters set forth in the Initial Public Offering
and Distribution Agreement by and between Continental and ExpressJet Holdings
dated as of _______________, 2001(the "IPO Agreement");
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter expressed, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Employee Benefits Separation Agreement
shall have the same meanings as are ascribed to such terms under the IPO
Agreement, except as otherwise specifically indicated below:
1.1 401(k) SAVINGS PLAN, when immediately preceded by "Continental,"
means the Continental Airlines, Inc. 401(k) Savings Plan. When immediately
preceded by "Holdings," 401(k) Savings Plan means the defined contribution plan
to be established by Holdings pursuant to Section 2.3.
1.2 ADMINISTRATIVE SERVICES AGREEMENT means the Administrative Support
and Information Services Provisioning Agreement in effect among Continental,
ExpressJet Holdings, and ExpressJet Airlines.
1.3 ASO CONTRACT means an administrative services only contract with a
third-party administrator that relates to any of the Continental Plans.
1.4 CAPACITY PURCHASE PERIOD means the period of time during which
that certain Capacity Purchase Agreement dated as of January 1, 2001, among
Continental, ExpressJet Holdings, and ExpressJet Airlines is in effect.
1.5 CARP means the Continental Retirement Plan.
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1.6 COBRA means the continuation coverage requirements for "group
health plans" under Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, and as codified in Section 4980B of the Code and
Sections 601 through 608 of ERISA.
1.7 COBRA CONTINUEE is defined in Section 5.4(a).
1.8 COMMITTEE means the Human Resources Committee of Continental's
Board of Directors.
1.9 CONTINENTAL has the meaning set forth in the Preamble.
1.10 CONTINENTAL EXECUTIVE BENEFIT PLANS means the following executive
benefit plans, programs and arrangements maintained by Continental for the
benefit of executive employees and former executive employees of Continental or
a Continental Affiliate: the Turbo Program, the Continental Management Bonus
Program, the Long Term Incentive Program, and the Retention Program.
1.11 EMPLOYEE BENEFITS SEPARATION AGREEMENT has the meaning set forth
in the Preamble.
1.12 ENROLLED ACTUARY means the enrolled actuary that is providing
regular and ongoing actuarial services in connection with a particular
Continental Plan at the time actuarial services are needed pursuant to this
Employee Benefits Separation Agreement with respect to such plan or a
corresponding Holdings Plan; provided, however, that if there is no such
actuary, the enrolled actuary shall mean Xxxxxx Associates.
1.13 ERISA means the Employee Retirement Income Security Act of 1974,
as amended from time to time, together with the rules and regulations
thereunder.
1.14 EXCLUSIVITY ENDING DATE means the day immediately preceding the
earlier of (a) January 1, 2005, and (b) the date on which Continental is free to
utilize regional jet capacity of a carrier other than ExpressJet Airlines in or
out of Continental's hubs.
1.15 EXPRESSJET AIRLINES has the meaning set forth in the Preamble.
1.16 EXPRESSJET HOLDINGS has the meaning set forth in the Preamble.
1.17 FLEXIBLE BENEFITS PLAN, when immediately preceded by
"Continental," means, collectively or individually, as the context shall imply,
the Continental Airlines, Inc. Healthcare Reimbursement Program, the Continental
Airlines, Inc. Child and Dependent Care Reimbursement Program, any cafeteria
plan or premium conversion plan maintained by Continental pursuant to Section
125 of the Code, and the Continental Vacation Buying and Selling Program. When
immediately preceded by "Holdings," Flexible Benefits Plan means the
corresponding programs to be established by Holdings pursuant to Section 2.3.
1.18 FLIGHT PASS PRIVILEGES, when immediately preceded by
"Continental," means space-available flight privileges and vacation and buddy
passes on each airline operated by
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Continental or a Continental Affiliate. When immediately preceded by "Holdings,"
Flight Pass Privileges means space-available flight privileges and vacation and
buddy passes on each airline operated by Holdings or a Holdings Affiliate.
1.19 FMLA means the Family and Medical Leave Act of 1993, as amended.
1.20 GROUP INSURANCE POLICY means a group insurance policy that
provides insured benefits under a Continental Welfare Plan.
1.21 HIPAA means the Health Insurance Portability and Accountability
Act of 1996, as amended.
1.22 HIPAA BENEFICIARY is defined in Section 5.4(b).
1.23 HMO means a health maintenance organization that provides
benefits under the Continental Welfare Plans or the Holdings Welfare Plans.
1.24 HMO AGREEMENTS is defined in Section 8.3(c)(i).
1.25 HOLDINGS means ExpressJet Holdings and ExpressJet Airlines,
collectively.
1.26 HOLDINGS 401(k) PARTICIPANTS is defined in Section 4.3.
1.27 HOLDINGS 2001 STOCK INCENTIVE PLAN means the stock incentive plan
to be established by ExpressJet Holdings pursuant to Section 2.3.
1.28 HOLDINGS ADMINISTRATIVE EMPLOYEES is defined in Section 8.1.
1.29 HOLDINGS EMPLOYEE means any individual who, as of the IPO Date,
is: (a) either actively employed by or on Leave of Absence from Holdings or a
Holdings Affiliate; or (b) neither actively employed by, nor on a Leave of
Absence from, Holdings or a Holdings Affiliate, but whose most recent active
employment (as between Continental (and Continental Affiliates ) and Holdings
(and Holdings Affiliates)) was with Holdings or a Holdings Affiliate or a
predecessor thereto. Any individual employed by Holdings or a Holdings Affiliate
after the IPO Date shall also be a Holdings Employee. Further, an alternate
payee under a QDRO, an alternate recipient under a QMCSO, a beneficiary or a
covered dependent, in each case, of an employee or former employee described in
either of the preceding two sentences shall also be a Holdings Employee, but
only in such capacity, and only with respect to such employee's or former
employee's benefit under the Continental Plans.
1.30 IMMEDIATELY PRECEDING THE INDEPENDENCE DATE means 11:59 P.M. City
of Houston time on the day immediately preceding the Independence Date.
1.31 INCENTIVE PLAN 2000 means the Continental Airlines, Inc.
Incentive Plan 2000, as amended from time to time.
1.32 INDEPENDENCE DATE means the Distribution Date.
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1.33 INTERCOMPANY NOTE refers to that certain promissory note dated
March 31, 2001, by Continental Express, Inc. (the predecessor to ExpressJet
Airlines) in favor of Continental in the original principal amount of
$552,312,000.00.
1.34 IPO AGREEMENT has the meaning set forth in the Preamble.
1.35 IPO DATE means the date of consummation of the Initial Public
Offering.
1.36 LEAVE OF ABSENCE means any authorized leave of absence, including
leaves of absence for short-term disability, long-term disability and workers'
compensation.
1.37 LIABILITIES shall have the same meaning as is assigned to the
term "Losses" under the IPO Agreement.
1.38 LONG TERM INCENTIVE PROGRAM means the Continental Airlines, Inc.
Long Term Incentive Performance Award Program adopted under the Incentive Plan
2000, as amended from time to time.
1.39 MANAGEMENT BONUS PROGRAM, when immediately preceded by
"Continental," means the Continental Airlines, Inc. Management Bonus Program.
When immediately preceded by "Holdings," Management Bonus Program means the
bonus plan to be established by Holdings pursuant to Section 2.3.
1.40 MEDICAL PLAN, when immediately preceded by "Continental," means
the portion of the Continental Welfare Plans that provides medical benefits to
employees and retirees (and their respective eligible dependents) of Continental
and certain Continental Affiliates established, maintained, agreed upon or
assumed by Continental or a Continental Affiliate. When immediately preceded by
"Holdings," Medical Plan means the portion of the plan to be established by
Holdings pursuant to Section 2.3 that corresponds to the Continental Medical
Plan.
1.41 ON-TIME BONUS PROGRAM, when immediately preceded by
"Continental," means the Continental Airlines, Inc. On-Time Bonus Program. When
immediately preceded by "Holdings," On-Time Bonus Program means the on-time
bonus program to be established by Holdings pursuant to Section 2.3.
1.42 OPTION, when immediately preceded by "Continental," means a
compensatory option to purchase Continental Common Stock. When immediately
preceded by "Holdings," Option means a compensatory option to purchase Class A
Common Stock.
1.43 PARTICIPATING COMPANY means (a) Continental, and (b) any Person,
other than an individual, that is participating in a particular Continental Plan
or has any employees who are participating in such Continental Plan.
1.44 PERFECT ATTENDANCE PROGRAM, when immediately preceded by
"Continental," means the Continental Airlines, Inc. Perfect Attendance Program.
When immediately preceded by "Holdings," Perfect Attendance Program means the
perfect attendance program to be established by Holdings pursuant to Section
2.3.
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1.45 PILOT LTD PLAN, when immediately preceded by "Continental," means
the Continental Airlines, Inc. Long Term Disability Plan for Pilots. When
immediately preceded by "Holdings," Pilot LTD Plan means the corresponding long
term disability plan to be established by Holdings pursuant to Section 2.3.
1.46 PLAN, when immediately preceded by "Continental" or "Holdings,"
means any plan, policy, program, payroll practice, on-going arrangement,
contract, trust, annuity contract, insurance policy or other agreement or
funding vehicle providing benefits to employees, former employees, dependents of
employees or former employees, or directors of Continental and/or Holdings, as
applicable.
1.47 PROFIT SHARING PLAN, when immediately preceded by "Continental,"
means the Continental Airlines, Inc. Profit Sharing Plan. When immediately
preceded by "Holdings," Profit Sharing Plan means the profit sharing plan to be
established by Holdings pursuant to Section 2.3.
1.48 QDRO means a domestic relations order which qualifies under
Section 414(p) of the Code and Section 206(d) of ERISA and which creates or
recognizes an alternate payee's right to, or assigns to an alternate payee, all
or a portion of the benefits payable to a participant under a Continental Plan.
1.49 QMCSO means a medical child support order which qualifies under
Section 609(a) of ERISA and which creates or recognizes an alternate recipient's
right to, or assigns to an alternate recipient the right to, receive benefits
for which a participant or beneficiary is eligible under a Continental Medical
Plan.
1.50 RETENTION PROGRAM means the Continental Airlines, Inc. Officer
Retention and Incentive Award Program adopted under the Incentive Plan 2000, as
amended from time to time.
1.51 TURBO PROGRAM means the Continental Airlines, Inc. Executive
Bonus Performance Award Program adopted under the Incentive Plan 2000, as
amended from time to time.
1.52 UATP means Universal Air Travel Plan benefits granted to certain
employees and directors and the cards issued for the exercise of such benefits
(or, in the event of discontinuance of the UATP program, a similar charge card)
permitting the purchase of air travel through direct billing to Continental or
any successor thereto or Holdings or any successors thereto, as applicable.
1.53 VEBA, when immediately preceded by "Continental," means the trust
established pursuant to the Trust Agreement Made as of the 12th Day of November,
1999 Between Continental Airlines, Inc. and Xxxxx Xxxxxxx Trust Company or any
successor trust established on behalf of the Continental Pilot LTD Plan. When
immediately preceded by "Holdings," VEBA means the corresponding trust to be
established by Holdings pursuant to Section 5.2(a).
1.54 WELFARE PLANS, when immediately preceded by "Continental," means
the employee welfare benefit plans, as defined in Section 3(1) of ERISA,
sponsored by Continental or a Continental Affiliate and any trust associated
with one or more of such plans. When
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immediately preceded by "Holdings," Welfare Plans means the employee welfare
benefit plans and associated trusts, if any, to be established by Holdings
pursuant to Section 2.3 that correspond to the respective Continental Welfare
Plans.
ARTICLE II
GENERAL PRINCIPLES
2.1 ASSUMPTION OF LIABILITIES. Except as otherwise provided herein and
except with respect to the extent a Liability is satisfied through the
Continental Plans and/or the Holdings Plans, notwithstanding any other provision
in the IPO Agreement to the contrary, (a) all Liabilities related to employees
(or any alleged employment relationships), independent contractors, consultants,
or advisers, of Holdings Businesses arising from events occurring either before
or after the IPO Date shall be the responsibility of Holdings, including
Liabilities incurred by reason of the transactions contemplated under the IPO
Agreement, but excluding (i) any losses for which a party is entitled to
indemnification pursuant to Article 6 of the IPO Agreement, and (ii)
Continental's obligations pursuant to Section 5.1 of this Employee Benefits
Separation Agreement, and (b) Holdings hereby indemnifies and holds Continental
harmless from and against any all such Liabilities described in the foregoing
clause (a).
2.2 HOLDINGS PARTICIPATION IN CONTINENTAL PLANS.
(a) PERIOD OF PARTICIPATION. Except as otherwise provided herein,
Holdings and each Holdings Affiliate which is a Participating Company in a
Continental Plan immediately preceding the IPO Date shall continue as such until
Immediately preceding the Independence Date, whereupon, effective as of such
time, such participation shall cease and neither Holdings nor any Holdings
Affiliate shall be a Participating Company in any Continental Plan as of any
time thereafter.
(b) HOLDINGS' GENERAL OBLIGATIONS AS PARTICIPATING COMPANY.
Holdings shall perform with respect to its participation in the Continental
Plans, and shall cause each Holdings Affiliate with respect to its participation
in the Continental Plans to perform, the duties of a Participating Company as
set forth in the Continental Plans or any procedures adopted pursuant thereto,
including: (i) assisting in the administration of claims to the extent requested
by the claims administrator of the applicable Continental Plan; (ii) cooperating
fully with Continental Plan auditors, benefit personnel, and benefit vendors;
(iii) preserving the confidentiality of all financial arrangements Continental
has or may have with any vendors, claims administrators, trustees or any other
entity or individual with whom Continental has entered into an agreement
relating to the Continental Plans; and (iv) preserving the confidentiality of
all participant health information.
(c) CONTINENTAL'S GENERAL OBLIGATIONS AS PLAN SPONSOR. Except as
otherwise provided in the governing documents for each Continental Plan,
Continental shall retain the responsibility to administer, or cause to be
administered, in accordance with their terms and applicable law, the Continental
Plans, and at all times Continental shall have the sole discretion and authority
to interpret the Continental Plans as set forth therein.
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2.3 ESTABLISHMENT OF HOLDINGS PLANS. Subject to the terms and
conditions set forth in this Employee Benefits Separation Agreement, Holdings
shall use reasonable best efforts to adopt or cause to be adopted for the
benefit of the Holdings Employees, (a) effective as of the IPO Date, the
Holdings 2001 Stock Incentive Plan, (b) effective as of January 1, 2002, the
Holdings Management Bonus Program, the Holdings Profit Sharing Plan, and the
Holdings Perfect Attendance Program, and (c) effective as of the Independence
Date, the Holdings 401(k) Savings Plan, the Holdings On-Time Bonus Program, the
Holdings Flexible Benefits Plan and the Holdings Welfare Plans. Except as
otherwise provided by any collective bargaining agreements, Holdings shall use
reasonable best efforts to cause the Holdings Flexible Benefits Plan and the
Holdings Welfare Plans as in effect as of the Independence Date to be
substantially similar in all material respects to the corresponding Continental
Plans in effect Immediately preceding the Independence Date.
2.4 PROCEDURES FOR AMENDMENTS TO PLANS, PLAN DESIGNS, ADMINISTRATIVE
PRACTICES AND VENDOR CONTRACTS. Continental shall at all times retain the
authority to, within its sole discretion and in accordance with the terms of the
governing Continental Plan documents: (i) amend all Continental Plans; (ii)
modify the administration or operation of any Continental Plan; or (iii) modify,
adopt or terminate any vendor or service provider contract subject to the terms
of Section 8.3.
2.5 REASONABLE BEST EFFORTS. Continental and Holdings shall use their
reasonable best efforts to enter into any necessary agreements and take such
other actions as are necessary (including maintaining necessary participant
records) to implement the arrangements contemplated by this Employee Benefits
Separation Agreement.
2.6 REGULATORY COMPLIANCE. Continental and Holdings shall, in
connection with the actions taken pursuant to this Employee Benefits Separation
Agreement, use reasonable best efforts to cooperate in making any and all
appropriate filings required under the Code, ERISA and any applicable securities
laws, implementing all appropriate communications with participants,
transferring appropriate records and taking all such other actions as may be
necessary and appropriate to implement the provisions of this Employee Benefits
Separation Agreement in a timely manner.
ARTICLE III
DEFINED BENEFIT PLANS
3.1 CARP.
(a) CESSATION OF CREDITED SERVICE. No participant in the CARP shall
receive credit under such plan for purposes of eligibility, vesting, credited
service, or benefit accrual on account of service performed as an employee of
Holdings or any Holdings Affiliate after the Independence Date. Notwithstanding
the foregoing, solely with respect to any participant in the CARP who is
employed by Holdings or a Holdings Affiliate as of the Independence Date,
Continental shall use reasonable best efforts to cause the CARP to allow such
individual to be eligible for a lump sum distribution under the CARP in a manner
consistent with the age and service requirements of the CARP.
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(b) VESTING. Effective Immediately preceding the Independence
Date, Continental shall use reasonable best efforts to cause the CARP to treat
each participant in the CARP who is employed by Holdings or a Holdings Affiliate
as of the Independence Date to become fully vested in such participant's accrued
benefit under the CARP.
(c) HOLDINGS REIMBURSEMENT. From time to time as determined by
Continental, Holdings shall reimburse Continental for (1) the cost of benefits
accruing under the CARP on behalf of Holdings Employees during the period of
time from the IPO Date to the Independence Date to the extent that such benefit
accrual is attributable to credited service arising from employment with
Holdings or a Holdings Affiliate during such period of time and (2) the cost
associated with the lump sum eligibility and accelerated vesting described in
paragraphs 3.1(a) and (b). The cost of the items described in the preceding
sentence shall be computed and certified by the Enrolled Actuary for the CARP
(whose determination shall be binding and conclusive on the parties hereto), and
such cost as computed (together with the cost of such actuarial computations)
shall be borne solely by Holdings. Holdings may, at its election, reimburse
Continental for such cost by increasing the amount payable by Holdings to
Continental under the InterCompany Note.
ARTICLE IV
DEFINED CONTRIBUTION PLAN
4.1 CONTINENTAL 401(k) SAVINGS PLAN. For the period preceding the
Independence Date, Holdings shall remit directly to the trustee of the
Continental 401(k) Savings Plan, (a) the contributions to such plan made by or
on behalf of the employees of Holdings and the Holdings Affiliates and (b) the
loan repayments made by such employees with respect to their outstanding loans
under the Continental 401(k) Savings Plan.
4.2 HOLDINGS 401(k) SAVINGS PLAN. Effective as of the Independence
Date, Holdings shall use reasonable best efforts to adopt or cause to be adopted
a separate defined contribution plan for the benefit of eligible Holdings
Employees.
4.3 ASSET TRANSFER. As soon as administratively feasible after the
Independence Date, Continental shall use reasonable best efforts to cause the
trustee of the trust funding the Continental 401(k) Savings Plans to transfer to
the trustee of the trust funding the Holdings 401(k) Savings Plan an amount
equal to the aggregate account balances under the Continental 401(k) Savings
Plan (determined as of the transfer date in accordance with the methods of
valuation set forth in the Continental 401(k) Savings Plan) of the individuals
who are Holdings Employees as of the Independence Date (the "Holdings 401(k)
Participants"). The transfer of such accounts shall be made (a) in kind, to the
extent the assets thereof consist of loans from such plan to a Holdings 401(k)
Participant, and (b) otherwise in cash, securities, other property or a
combination thereof, as determined by Continental in its sole discretion. From
and after the time of such transfer, the Holdings 401(k) Savings Plan shall
assume and be solely responsible for all Liabilities under the Continental
401(k) Savings Plan to or relating to the Holdings 401(k) Participants.
Continental and Holdings shall use reasonable best efforts to cooperate and take
such actions as are necessary to permit the continuation of loan repayments by
Holdings 401(k) Participants to the Continental 401(k) Savings Plan by payroll
deductions during the period beginning on the Independence Date and ending on
the date of the transfer described in this
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Section. Continental represents, covenants and agrees with respect to the
Continental 401(k) Savings Plan, and Holdings represents, covenants and agrees
with respect to the Holdings 401(k) Savings Plan, that, as of the date of the
transfer described in this Section, such plan will satisfy the requirements of
Sections 401(a), (k) and (m) of the Code.
ARTICLE V
HEALTH AND WELFARE PLANS
5.1 HOLDINGS PARTICIPATION IN CONTINENTAL WELFARE PLANS. Holdings and
the Holdings Affiliates shall continue to participate in a manner consistent
with past practice in the Continental Welfare Plans until Immediately preceding
the Independence Date. Holdings shall reimburse Continental for all costs with
respect to the participation of Holdings and any and all Holdings Affiliates in
the Continental Welfare Plans; provided, however, that with respect to medical,
dental, disability, life insurance, accidental death and dismemberment
insurance, and similar benefits, whether insured or self-funded, such costs
shall be billed on an allocable premium basis rather than on a claims made
basis. Effective Immediately preceding the Independence Date, Holdings shall
cease participation in all Continental Welfare Plans, and, effective as of the
Independence Date, Holdings shall use reasonable best efforts to cause eligible
Holdings Employees to commence participation in the Holdings Welfare Plans.
Claims for benefits by Holdings Employees arising out of occurrences on or
subsequent to the Independence Date shall be covered by the Holdings Welfare
Plans in accordance with the terms of such plans. Claims for benefits by
Holdings Employees arising out of occurrences prior to the Independence Date
shall be covered by the Continental Welfare Plans in accordance with the terms
of such plans; provided however, that Holdings shall be liable for any premiums,
payments and other costs with respect to such claims under the Continental
Welfare Plans. For this purpose, claims for medical, dental, prescription drug,
and vision benefits by Holdings Employees shall be considered to have occurred
on the date of purchase or the date service or treatment was rendered, as
applicable, (ii) claims for life insurance and accidental death and
dismemberment insurance benefits shall be considered to have occurred on the
date of death or the date the accident occurred, and (iii) claims for disability
benefits shall be considered to have occurred on the date the disability
occurred.
5.2 PILOT LTD PLAN AND VEBA. Notwithstanding the provisions of Section
5.1 above to the contrary, effective as of the Independence Date, Holdings and
Continental shall use reasonable best efforts to cause the Holdings Pilot LTD
Plan to assume all liabilities of the Continental Pilot LTD Plan with respect to
Holdings Employees. In connection with the foregoing, the following actions
shall be taken:
(a) Effective as of the Independence Date, Holdings shall use
reasonable best efforts to establish, or shall use reasonable best efforts to
cause to be established, the Holdings VEBA for the purpose of funding long-term
disability benefits under the Holdings Pilot LTD Plan. Holdings shall use
reasonable best efforts to ensure such trust meets the requirements of Sections
419, 410A, 501(a) and 501(c)(9) of the Code.
(b) At the time and in the manner set forth in paragraph 5.2(c)
below, Continental shall cause to be transferred to the Holdings VEBA a pro-rata
portion of the assets of the Continental VEBA Immediately preceding the
Independence Date in an amount equal to (i)
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the total assets of the Continental VEBA as of such date multiplied by (ii) the
aggregate present value of future benefit obligations of the Continental Pilot
LTD Plan with respect to Holdings Employees as of such date divided by (iii) the
aggregate present value of the total future benefit obligations of the
Continental Pilot LTD Plan as of such date.
(c) The present value of the benefit obligations pursuant to
paragraph 5.2(b) above shall be determined by the Enrolled Actuary for the
Continental VEBA (whose determinations shall be binding and conclusive on the
parties hereto) using methods and assumptions consistent with those used to
produce the Actuarial Report for the Continental Pilot LTD Plan dated December
31, 2000; provided, however, that the transfer pursuant to paragraph 5.2(b)
above shall be subject to the satisfaction of the requirements of applicable law
and any applicable governmental requirements as determined by the Enrolled
Actuary for the Continental VEBA. The transfer of assets shall take place as
soon as administratively practicable after the completion of the calculation and
compliance with applicable governmental requirements. The amount transferred
shall be determined as of Immediately preceding the Independence Date and shall
also include interest for the period beginning at such time and ending on the
day immediately preceding the date of the transfer based on the interest rate
used by the Enrolled Actuary for the Continental VEBA for determining the
present value of the benefit obligations pursuant to paragraph 5.2(b). The
assets shall be transferred in cash, securities, other property or a combination
thereof, as determined by Continental in its sole discretion.
(d) Benefit payments to Holdings Employees in pay status shall
continue to be made from the Continental VEBA following the Independence Date
and until the date of the asset transfer described in paragraph 5.2(c) above.
Any such payments, adjusted for applicable interest, shall be deducted from the
amount required to be transferred to the Holdings VEBA pursuant to paragraph
5.2(b).
(e) Following any such transfer of assets, Holdings shall assume
all Liabilities of Continental under the Continental LTD Plan with respect to
Holdings Employees, and Continental shall have no further liability to Holdings
or any Holdings Employee with respect thereto.
5.3 EFFECT OF CHANGE IN RATES. Continental and Holdings shall use
their reasonable best efforts to cause each of the insurance companies, HMOs and
third-party administrators providing services and benefits under the Continental
Plans and the Holdings Plans to maintain the premium and/or administrative rates
based on the aggregate number of participants in both the Continental Plans and
the Holdings Plans. To the extent they are not successful in such efforts,
Continental and Holdings shall each bear the revised premium or administrative
rates attributable to the individuals covered by their respective plans.
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5.4 COBRA AND HIPAA.
(a) COBRA CONTINUATION COVERAGE. Continental shall be responsible
for providing continuation coverage as required by COBRA under a Continental
Welfare Plan to any employee, officer, director, consultant, or agent of
Continental, any Continental Affiliate, Holdings, and each Holdings Affiliate,
and other qualified beneficiaries under COBRA with respect to such individuals,
who have a COBRA qualifying event (due to termination of employment with any of
the foregoing entities or otherwise) ("COBRA Continuee") prior to the
Independence Date. Holdings shall be responsible for providing continuation
coverage as required by COBRA under a Holdings Welfare Plan to any employee,
officer, director, consultant, or agent of Holdings and each Holdings Affiliate,
and other qualified beneficiaries under COBRA with respect to such individuals,
who have a COBRA qualifying event (due to termination of employment with
Holdings or a Holdings Affiliate or otherwise) on or after the Independence
Date.
(b) HIPAA CERTIFICATES OF CREDITABLE COVERAGE. For all periods
prior to the Independence Date, Continental shall be responsible for providing
certificates of creditable coverage as required under HIPAA regarding any
Continental Welfare Plan to any employee of Continental, Holdings, or their
Affiliates, or any dependent of such an employee (a "HIPAA Beneficiary").
Further, Continental shall provide certificates of creditable coverage regarding
any Continental Welfare Plan to any COBRA Continuee to whom Continental provides
continuation coverage in accordance with Section 5.4(a) at the time such
continuation coverage ceases, and upon request made by, or on behalf of, any
HIPAA Beneficiary, within twenty four (24) months after his or her coverage
under a Continental Health Plan ceases. As of the Independence Date, Holdings
shall be responsible for providing certificates of creditable coverage as
required under HIPAA under any Holdings Welfare Plan to any employee of Holdings
or a Holdings Affiliate, or any dependent of such employee.
5.5 CONTINENTAL WORKERS' COMPENSATION PROGRAM. Continental shall be
responsible for the administration of all workers' compensation claims that are,
or have been, incurred before the Independence Date. From and after the
Independence Date, Holdings shall bear sole responsibility for the
administration of all workers' compensation claims that are incurred on or after
the Independence Date with respect to Holdings Employees. Through and after the
Independence Date and for so long as both parties mutually desire, and to the
extent permissible by applicable law, both parties shall fully cooperate with
the other with respect to the administration and reporting of any workers'
compensation claims and the defense of any such claims whether on behalf of
Continental or Holdings or both parties, including the sharing of records and
such other information as may be useful for any such defense. From the IPO Date
until the last day of the Capacity Purchase Period, (a) Holdings (on behalf of
itself and the Holdings Affiliates), and, to the extent permissible under
applicable law or under the terms of any applicable insurance contract or any
workers' compensation programs maintained by Holdings or a Holdings Affiliate,
hereby waives any right to seek workers' compensation subrogation recovery from
Continental or any Continental Plans or Continental Affiliates with respect to
any workers' compensation claim made by an employee covered under the workers'
compensation programs of Holdings, and (b) Continental (on behalf of itself and
the Continental Affiliates), and, to the extent permissible under applicable law
or under the terms of any applicable insurance contract or any workers'
compensation programs maintained by Continental
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or a Continental Affiliate, herby waives any right to seek workers' compensation
subrogation recovery from Holdings or any Holdings Plan or Holdings Affiliates
with respect to any workers' compensation claim made by an employee covered
under the workers' compensation programs of Continental.
5.6 POST-DISTRIBUTION TRANSITIONAL ARRANGEMENTS.
(a) CONTINUANCE OF ELECTIONS, CO-PAYMENTS AND MAXIMUM BENEFITS.
(i) Holdings shall use reasonable best efforts to cause the
Holdings Welfare Plans to recognize and maintain all coverage and contribution
elections made by Holdings Employees under the Continental Welfare Plans and
apply such elections under the Holdings Welfare Plans to the extent applicable
for the remainder of the period or periods for which such elections are by their
terms applicable.
(ii) Holdings shall use reasonable best efforts to cause the
Holdings Welfare Plans to recognize and give credit for (A) all amounts applied
to deductibles, out-of-pocket maximums, and other applicable benefit coverage
limits with respect to which such expenses have been incurred by Holdings
Employees under the Continental Welfare Plans for the remainder of the year in
which the Independence Date occurs, and (B) all benefits paid to Holdings
Employees under the Continental Welfare Plans for purposes of determining when
such persons have reached their lifetime maximum benefits under the Holdings
Welfare Plans. In addition, and for purposes of retiree medical benefits,
Holdings shall use reasonable best efforts to cause the appropriate Holdings
Welfare Plan to recognize and credit, on behalf of any retiree who is a Holdings
Employee, such individual's sick bank credits under the corresponding
Continental Welfare Plan as of Immediately preceding the Independence Date.
(iii) Holdings shall use reasonable best efforts to provide
continuing uninterrupted group life insurance coverage to participating Holdings
Employees under the Holdings Welfare Plans without the need to undergo a
physical examination or otherwise provide evidence of insurability.
Notwithstanding anything herein to the contrary, Holdings Employees who elect a
change in life insurance coverage may be subject to rules of the insurer,
including physical examination or other evidence of insurability.
(iv) To the extent that Holdings is unable, despite reasonable
best efforts, to achieve the foregoing provisions of this Section 5.6(a),
Holdings shall be solely responsible for any Liability associated therewith, and
Holdings may take any such steps as Holdings deems necessary or advisable in its
sole discretion.
(b) OTHER POST-DISTRIBUTION TRANSITIONAL MATTERS.
(i) FLEXIBLE BENEFITS PLAN. Continental and Holdings shall use
reasonable best efforts to take all steps necessary or appropriate so that the
account balances, accruals, and/or service credit, to the extent applicable,
under each Continental Flexible Benefits Plan of each Holdings Employee who has
elected to participate therein in the year in which the Independence Date occurs
shall be transferred, as soon as practicable after the Independence Date, from
such Continental Flexible Benefits Plan to the corresponding Holdings Flexible
Benefits Plan, and so that the contribution elections of each such Holdings
Employee as in effect
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immediately before the Independence Date remain in effect under the Holdings
Flexible Benefits Plan immediately after such transfer. If the aggregate amount
of the transferred account balances of Holdings Employees is negative, then
Holdings shall pay Continental the amount of such aggregate negative balance
promptly following such account balance transfer.
(ii) HEALTH AND WELFARE PLANS SUBROGATION RECOVERY. As soon as
administratively feasible following the collection of any such recovery,
Holdings shall pay to Continental or the Continental Welfare Plan or the
Holdings Welfare Plan, as appropriate, any amounts Holdings recovers from time
to time through subrogation or otherwise for claims incurred by or reimbursed to
any participant of the Continental Welfare Plan or the Holdings Welfare Plan
that paid such claim. As soon as administratively feasible following the
collection of any such recovery, Continental shall pay to Holdings or the
Holdings Welfare Plan or the Continental Welfare Plan, as appropriate, any
amounts Continental recovers from time to time through subrogation or otherwise
for claims incurred by or reimbursed to any participant of the Continental
Welfare Plan or the Holdings Welfare Plan that paid such claim.
(iii) EXCHANGE OF HISTORICAL DATA. With respect to Holdings
Employees, after the Independence Date, both Continental and Holdings shall have
access to claims data configured on any applicable database or archives, and to
eligibility, disability, medical and demographic data configured on any
database, or archives, for all historical periods up to and including
eligibility, incurred claims and other data for purposes of administering the
medical and disability benefits of Continental and Holdings and their
Affiliates. Continental and Holdings shall cooperate (and shall cause their
respective Affiliates to cooperate) in the collection of claims, eligibility and
data during the period from the IPO Date to the time Immediately preceding the
Independence Date and share all such data where necessary.
ARTICLE VI
INCENTIVE PROGRAMS AND EXECUTIVE BENEFITS
6.1 CONTINENTAL EXECUTIVE BENEFIT PLANS. Notwithstanding the
provisions of Section 2.2, participation by Holdings Employees in the
Continental Executive Benefit Plans from and after the IPO Date shall be as
follows:
(a) LIMITED CONTINUED PARTICIPATION. Holdings Employees who are
participants in the Continental Executive Benefit Plans as of the IPO Date shall
continue to participate, without interruption, in such plans through December
31, 2001. Continental shall use reasonable best efforts to cause its Chief
Executive Officer or the Committee, as applicable under the terms of the
particular Continental Executive Benefit Plan, to make a determination that
Holdings Employees shall not be eligible to receive awards under or otherwise
participate in the Continental Executive Benefit Plans after December 31, 2001,
and Continental shall provide affected Holdings Employees with a written notice
of such determination as soon as practicable after the IPO Date to the extent
such notice is required under the Continental Executive Benefit Plans. On or
before the IPO Date, Continental and Holdings shall use reasonable best efforts
to cause the Holdings Employees who are participants in the Long Term Incentive
Program as of such date to agree that they shall forfeit and receive no payments
with respect to awards under such plan for which the "Performance Period" (as
such term is defined in the Long Term Incentive Program) has not ended on or
before December 31, 2001. Notwithstanding the
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preceding provisions of this paragraph, a Holdings Employee shall continue to be
eligible to participate in the Retention Program after December 31, 2001, with
respect to "Follow-up Investments" (as such term is defined in the Retention
Program) that relate to awards in which such employee has a vested interest as
of such date.
(b) RESPONSIBILITY FOR PAYMENTS. Continental shall retain
liability for payments to Holdings Employees with respect to their awards under
the Retention Program. Holdings shall assume and be solely responsible for all
Liabilities (including the payment of plan benefits) to or relating to Holdings
Employees under the Turbo Program, the Long Term Incentive Program and the
Continental Management Bonus Program. All or any portion of the payments owed by
Holdings to Holdings Employees under the Turbo Program, the Long Term Incentive
Program and the Continental Management Bonus Program shall, at the election of
Holdings, be paid by Continental and added to the amount payable by Holdings
under the InterCompany Note.
6.2 OTHER CONTINENTAL INCENTIVE PLANS
(a) 1997 EMPLOYEE STOCK PURCHASE PLAN. Holdings and each Holdings
Affiliate, as applicable, shall continue as a Participating Company consistent
with past practice in Continental's 1997 Employee Stock Purchase Plan until
Immediately preceding the Independence Date. Effective as of the Independence
Date, such participation shall cease and all participating employees of Holdings
and the Holdings Affiliates shall automatically be deemed to have withdrawn from
such plan as of such date without further action by any employee.
(b) CONTINENTAL PROFIT SHARING PLAN. Holdings and each Holdings
Affiliate, as applicable, shall continue as a Participating Company consistent
with past practice in the Continental Profit Sharing Plan through December 31,
2001. The participation in the Continental Profit Sharing Plan by Holdings and
each Holdings Affiliate that is a Participating Company in the Continental
Profit Sharing Plan shall cease effective as of January 1, 2002. Holdings shall
be liable for the full amount of any and all payments under the Continental
Profit Sharing Plan that are owed to any Holdings Employees in connection with
the plan participation described in the first sentence of this Section 6.2(b).
All or a portion of the payments owed by Holdings to Holdings Employees under
the Continental Profit Sharing Plan shall, at the election of Holdings, be paid
by Continental and added to the amount payable by Holdings under the
InterCompany Note. Effective as of January 1, 2002, Holdings shall use
reasonable best efforts to adopt or cause to be adopted the Holdings Profit
Sharing Plan for the benefit of eligible Holdings Employees. The terms and
conditions of the Holdings Profit Sharing Plan shall be determined by Holdings.
(c) CONTINENTAL ON-TIME BONUS PROGRAM. Holdings and each Holdings
Affiliate, as applicable, shall continue as a Participating Company consistent
with past practice in the Continental On-Time Bonus Program until Immediately
preceding the Independence Date. Effective Immediately preceding the
Independence Date, the participation of Holdings and each Holdings Affiliate
that is a Participating Company in the Continental On-Time Bonus Program shall
cease. Holdings shall be liable for the full amount of any and all payments
under the Continental On-Time Bonus Program that are owed to Holdings Employees
in connection with the plan participation described in the first sentence of
this Section 6.2(c). All or any portion of
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the payments owed by Holdings to Holdings Employees under the Continental
On-Time Bonus Program shall, at the election of Holdings, be paid by Continental
and added to the amount payable by Holdings under the InterCompany Note.
Effective as of the Independence Date, Holdings shall use reasonable best
efforts to adopt or cause to be adopted the Holdings On-Time Bonus Program for
the benefit of eligible Holdings Employees subject to terms and conditions to be
determined by Holdings. The Holdings On-Time Bonus Program shall provide (i)
credit for performance prior to the Independence Date to the extent necessary to
achieve equity and (ii) a payment schedule similar to that set forth in the
Continental On-Time Bonus Program.
(d) CONTINENTAL PERFECT ATTENDANCE PROGRAM. Holdings and each
Holdings Affiliate, as applicable, shall continue as a Participating Company
consistent with past practice in the Continental Perfect Attendance Program
through December 31, 2001. The participation in the Continental Perfect
Attendance Program by Holdings and each Holdings Affiliate that is a
Participating Company in the Continental Perfect Attendance Program shall cease
effective as of January 1, 2002. Holdings shall be liable for the full amount of
any and all payments and/or awards under the Continental Perfect Attendance
Program that are owed to Holdings Employees in connection with the plan
participation described in the first sentence of this Section 6.2(d). All or any
portion of the payments and/or awards owed by Holdings to Holdings Employees
under the Continental Perfect Attendance Program shall, at the election of
Holdings, be paid by Continental and added to the amount payable by Holdings
under the InterCompany Note. Effective as of January 1, 2002, Holdings shall use
reasonable best efforts to adopt or cause to be adopted the Holdings Perfect
Attendance Program for the benefit of eligible Holdings Employees subject to
terms and conditions to be determined by Holdings.
6.3 ESTABLISHMENT OF HOLDINGS MANAGEMENT BONUS PROGRAM. Effective as
of January 1, 2002, Holdings shall use reasonable best efforts to establish the
Holdings Management Bonus Program for the benefit of certain executives and
other employees of Holdings subject to such terms and conditions specified by
Holdings; provided, however, that such plan shall provide for the payment of
bonuses solely in the event that the operating income margin for Holdings for
the year ended December 31, 2002, is at least 90% of the budget approved for
Holdings for such year by the Board of Directors of ExpressJet Holdings or
ExpressJet Airlines and, if such minimum condition is satisfied, the bonus
payable will be based on a sliding scale of between 90% and 110% of the targeted
percentages of annual base salary described below. With respect to the year
ended December 31, 2002, the following are the targeted percentages of annual
base salary under the Holdings Management Bonus Program for the following
officers of ExpressJet Airlines: (a) Chief Executive Officer, 60%; (b) Chief
Operating Officer and Chief Financial Officer, 45% each; (c) Vice Presidents,
40% each; (d) senior director level employees, 25 % each; and (e) director level
employees, 20% each.
6.4 CONTINENTAL DEFERRED COMPENSATION PLAN. Each eligible Holdings
Employee shall continue to participate, without interruption, in the Continental
Deferred Compensation Plan until Immediately preceding the Independence Date at
which time such participation shall cease. As soon as administratively feasible
thereafter, each participating Holdings Employee shall receive a payment in an
amount equal to the sum of (a) the value of his or her deferral accounts under
such plan and (b) an additional amount that, in the sole discretion of Holdings,
is sufficient to compensate such Holdings Employee for any additional federal
income tax due solely because such distribution caused such Holdings Employee to
be taxed at a higher marginal
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federal income tax rate than would otherwise have applied to such Holdings
Employee upon his termination of employment with Holdings and the Holdings
Affiliates. Such payment shall be made in a single lump sum payment and shall be
paid by Holdings to the extent, if any, that the subtrust established in
connection with Holdings' participation in such plan does not have sufficient
funds to make such payment in full. Notwithstanding the foregoing, in the event
any Holdings Employee participating in the Continental Deferred Compensation
Plan would be treated as having a "Retirement Date" (as defined in such plan) in
the event such individual terminated from service Immediately preceding the
Independence Date, Continental shall cause the Continental Deferred Compensation
Plan to treat such individual as having incurred a "Termination of Service" (as
defined in such plan) at such time (provided such individual remains
continuously employed by Holdings or a Holdings Affiliate through the
Independence Date). In such case, Holdings shall pay to such Holdings Employee
the benefits owed to him or her under the Continental Deferred Compensation Plan
to the extent, if any, that the subtrust established in connection with
Holdings' participation in such plan does not have sufficient funds to pay such
benefits.
6.5 CONTINENTAL OPTIONS. As of the date upon which Holdings no longer
constitutes a "subsidiary" (as defined in the Continental Plans pursuant to
which the Continental Options were granted) of Continental, each Continental
Option then outstanding that is held by a Holdings Employee shall terminate and
cease to be exercisable; provided, however, that such Holdings Employee shall
have 30 days from and after such date (but in no event longer than the maximum
term of such option) to exercise such option to the extent that it was vested
and exercisable as of such date.
6.6 HOLDINGS OPTIONS. ExpressJet Holdings shall use reasonable best
efforts to establish and adopt the Holdings 2001 Stock Incentive Plan for the
award of stock options and restricted stock to selected employees and
non-employee directors of Holdings. The Holdings 2001 Stock Incentive Plan shall
be approved by Continental as the sole shareholder of ExpressJet Holdings before
the IPO Date, to become effective as of the IPO Date, and such plan shall have
terms and conditions substantially similar to the Continental Airlines, Inc.
1998 Stock Incentive Plan, except that such Holdings Plan shall provide for all
stock-based awards to be based upon the Class A Common Stock and appropriate
revisions shall be made to reflect that ExpressJet Holdings shall be the sponsor
of such plan. The Holdings 2001 Stock Incentive Plan shall provide that the
maximum number of shares of Class A Common Stock that may be issued under such
plan shall be equal to 5% of the shares of Holdings Common Stock outstanding as
of the IPO Date. As of the IPO Date, Holdings shall use reasonable best efforts
to cause Holdings Options to be granted under the Holdings 2001 Stock Incentive
Plan for a specified number of shares determined by multiplying the following
percentage below by the number of shares of Holdings Common Stock outstanding as
of the IPO Date to individuals in the following positions: (a) Chief Executive
Officer, 0.5%; (b) Chief Operating Officer and Chief Financial Officer, 0.125%
each; (c) Vice Presidents, 0.05% each; (d) senior director level employees, .01%
each; and (e) director level employees, .005% each. Each such Holdings Option
granted as of the IPO Date shall have a purchase price per share equal to the
initial public offering price of the Class A Common Stock offered to investors
in the Initial Public Offering, shall vest in 25% annual increments, and shall
have a maximum term of five-years.
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ARTICLE VII
OTHER BENEFITS
7.1 FLIGHT PASS PRIVILEGES. As of the IPO Date, Holdings shall use
reasonable best efforts to establish the Holdings Flight Pass Privileges with
terms and conditions substantially similar in all material respects to the
Continental Flight Pass Privileges as in effect immediately preceding the IPO
Date. During the period beginning on the IPO Date and ending on the Exclusivity
Ending Date, (a) employees and retirees of Holdings and Holdings Affiliates will
have Continental Flight Pass Privileges on the same terms and conditions as
similarly-situated employees and retirees of Continental, and (b) employees and
retirees of Continental and Continental Affiliates will have Holdings Flight
Pass Privileges on the same terms and conditions as similarly-situated employees
and retirees of Holdings. After the Exclusivity Ending Date, Continental and
Holdings will meet and confer to determine what, if any, Flight Pass Privileges
each of their employees and retirees will have on the other.
7.2 UATP BENEFITS. From and after the Independence Date, Holdings
Employees who are officers of Holdings or a Holdings Affiliate and who hold a
UATP card issued by Continental pursuant to their employment agreements in
effect as of the date hereof shall continue to have the right (including any
post-employment right set forth in such employment agreements as of the date
hereof) to use the UATP benefits associated with such cards (and the pass
classifications and benefits set forth in such employment agreements) on
Continental and Continental Affiliates, without cost (other than applicable
taxes) to such officers or to Holdings or the applicable Holdings Affiliate.
From and after the Independence Date, Continental shall use reasonable best
efforts to grant to Holdings, upon its request, up to five additional UATP
cards, three of which shall have an annual travel limit of $18,750 and two of
which shall have an annual travel limit of $25,000, for use by officers hired by
Holdings or a Holdings Affiliate on or after the Independence Date, on flights
operated by Continental or a Continental Affiliate without cost (other than
applicable taxes) to such officers or Holdings or the applicable Holdings
Affiliate; provided, however, that such officers' rights to use such UATP cards
shall terminate on the date their employment with Holdings and all Holdings
Affiliates terminates for any reason whatsoever; and provided further that such
UATP cards shall only be valid during the Capacity Purchase Period. From and
after the Independence Date, Holdings shall use reasonable best efforts to cause
all UATP cards issued to officers or members of the Board of Directors of
Continental (or their respective spouses) pursuant to employment or other
agreements with such officers or members of the Board of Directors (whether
entered into or issued before or after the Independence Date) to be able to be
used (together with the pass classifications and benefits set forth in such
employment or other agreements) on any and all flights operated by Holdings or a
Holdings Affiliate, without cost (other than applicable taxes) to Continental or
such persons.
7.3 NON-EMPLOYEE DIRECTOR PASSES. During the period beginning on the
IPO Date and ending on the Exclusivity Ending Date, Continental shall use
reasonable best efforts to provide Holdings with 12 positive space, round-trip,
first class/business class passes on Continental and Continental Affiliates per
year for each non-employee director of ExpressJet Holdings (up to a maximum of
five such non-employee directors) for use by such individuals while they serve
on the Board of Directors of ExpressJet Holdings.
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ARTICLE VIII
GENERAL AND ADMINISTRATIVE
8.1 ADMINISTRATIVE PERSONNEL. A schedule of the individuals employed
in certain Continental corporate business functions who have been designated to
become employees of Holdings or a Holdings Affiliate (the "Holdings
Administrative Employees") has been agreed to by Continental and Holdings in a
separate agreement between Continental and Holdings. The Holdings Administrative
Employees shall become employees of Holdings on or before the IPO Date.
8.2 PAYMENT OF PLAN EXPENSES.
(a) GENERAL PROVISIONS. With respect to any period during which
Holdings or a Holdings Affiliate is a Participating Company in a Continental
Plan or to the extent that any Holdings Plan is maintained, operated, or
administered in conjunction with any Continental Plan under the same ASO
Contract, Group Insurance Policy, or other agreement or arrangement, Holdings
shall pay its allocable share of (i) any contributions made to any trust
maintained in connection with such plan, (ii) any premiums or other payments to
fund benefits paid under such plan, and (iii) any maintenance or administrative
expenses arising from or with respect to such plan. In addition, Continental and
Holdings shall each be responsible for their respective allocable share of costs
and expenses incurred in the maintenance, operation, and administration of
Continental Plans and Holdings Plans, including, (1) all cost of benefits, (2)
all internal administrative costs of benefits and the employee benefits services
personnel, (3) all external administrative costs for management of assets,
recordkeeping, communications, benefit delivery, insurance fees and commissions,
consultant, actuarial, accounting, legal, printing, photocopying, mailing and
other expenses, and (4) all COBRA administrative expenses.
(b) DETERMINATION OF ALLOCABLE SHARE. Holdings' allocable share of
the costs set forth in Section 8.2(a) shall be equal to the total of any such
costs that are attributable to Holdings and the Holdings Affiliates as
determined by Continental under and consistent with the intercompany billing
process in place immediately before the IPO Date. With respect to any costs or
additional unanticipated expenses that were not billed through the intercompany
billing process, Holdings shall pay to Continental its allocable share of such
costs as determined by Continental based on a head count of the individuals or
participants participating in such benefit, or, in the event such costs cannot
be allocated on such basis, Holdings' share shall be determined by Continental
in such other manner as Continental deems appropriate. Continental's
determinations under the foregoing provisions of this Section 8.2 shall be made
from time to time in its discretion, and such determinations shall be binding
and conclusive on Holdings.
(c) PAYMENT OF ALLOCABLE SHARE. Effective from and after the IPO
Date, to the extent that Holdings' share of the costs set forth in Section
8.2(a) is not paid directly by Holdings, but instead is initially paid by
Continental, Holdings shall reimburse Continental for such costs as soon as
administratively feasible (but no later than 60 days) following the receipt of
an invoice from Continental providing the amount and description of such costs.
Holdings may, at its election, reimburse Continental for such costs by
increasing the amount payable by Holdings to Continental under the InterCompany
Note.
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(c) ADMINISTRATIVE SERVICES AGREEMENT. Additional detail on
certain services to be provided by Continental to Holdings and Holdings'
obligation to pay for such services is set forth in the Administrative Services
Agreement. In the event of any conflict between the provisions of this Section
8.2 and the express provisions of the Administrative Services Agreement, the
Administrative Services Agreement shall control.
8.3 VENDOR CONTRACTS.
(a) THIRD-PARTY ASO CONTRACTS.
(i) Unless otherwise requested by Holdings, Continental and
Holdings shall use commercially reasonable efforts to cause each ASO Contract
that is entered into or renewed after the IPO Date but before the Independence
Date to provide that Holdings shall be eligible for a mirror contract effective
as of the Independence Date with substantially the same terms and conditions as
are contained in the ASO Contract to which Continental is a party. Such terms
and conditions shall include the financial and termination provisions,
performance standards, methodology, auditing policies, quality measures and
reporting requirements.
(ii) To the extent that Continental and Holdings are not
successful in negotiating contract language that will permit compliance with the
foregoing paragraph and to the extent an ASO contract is not addressed in such
paragraph, Holdings shall be responsible for negotiating its own ASO Contracts
effective on or before the Independence Date.
(b) GROUP INSURANCE POLICIES.
(i) Unless otherwise requested by Holdings, Continental and
Holdings shall use commercially reasonable efforts to cause each Group Insurance
Policy that is entered into or renewed after the IPO Date but before the
Independence Date to provide that Holdings shall be eligible for a mirror policy
effective as of the Independence Date with substantially the same terms and
conditions as are contained in the Group Insurance Policy which Continental has
obtained. Such terms and conditions shall include the financial and termination
provisions, performance standards and target claims.
(ii) To the extent Continental and Holdings are not successful
in negotiating policy provisions that will permit compliance with foregoing
paragraph and to the extent that a Group Insurance Policy is not addressed in
such paragraph, Holdings shall be responsible for procuring its own Group
Insurance Policies effective on or before the Independence Date.
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(c) HMO AGREEMENTS.
(i) Unless otherwise requested by Holdings, Continental and
Holdings shall use commercially reasonable efforts to cause all agreements with
HMOs ("HMO Agreements") that provide medical services under a Continental
Welfare Plan in which Holdings Employees are eligible to participate that are
entered into or renewed on or after the IPO Date but before the Independence
Date to provide that Holdings shall be eligible for a mirror HMO Agreement
effective as of the Independence Date with substantially the same terms and
conditions as are contained in the HMO Agreement to which Continental is a
party; provided that such arrangements shall be mutually beneficial to both
Continental and Holdings. Such terms and conditions shall include the financial
and termination provisions of the HMO Agreements.
(ii) If Continental and Holdings determine that they will not
be successful in negotiating arrangements that will permit compliance with the
foregoing paragraph and to the extent that such an HMO Agreement is not
addressed in such paragraph, Holdings will be responsible for procuring its own
HMO Agreements effective on or before the Independence Date.
8.4 SHARING OF PARTICIPANT INFORMATION. Continental and Holdings shall
use reasonable best efforts to share, Continental shall use reasonable best
efforts to cause each applicable Continental Affiliate to share, and Holdings
shall use reasonable best efforts to cause each applicable Holdings Affiliate to
share, with each other and their respective agents and vendors, without
obtaining releases, all participant information necessary for the efficient and
accurate administration of each of the Continental Plans and the Holdings Plans
in accordance with the terms of this Employee Benefits Separation Agreement.
Continental and Holdings and their respective authorized agents shall, subject
to applicable laws on confidentiality, be given reasonable and timely access to,
and may make copies of, all information relating to the subjects of this
Employee Benefits Separation Agreement in the custody of the other party, to the
extent necessary for such administration.
8.5 REPORTING AND DISCLOSURE AND COMMUNICATIONS TO PARTICIPANTS. While
Holdings is a Participating Company in a Continental Plan, Holdings shall use
reasonable best efforts to take, and shall use reasonable best efforts to cause
each other applicable Holdings Affiliate to take, all actions necessary or
appropriate to facilitate the distribution of all Continental Plan-related
communications and materials to employees, participants and beneficiaries,
including summary plan descriptions, summaries of material modification, summary
annual reports, investment information, prospectuses, notices and enrollment
material for the Continental Plan. For periods beginning on or after the IPO
date, Holdings shall pay Continental the cost relating to the copies of all such
documents provided to Holdings. Continental and Holdings shall assist each other
in complying with all reporting and disclosure requirements of ERISA, including
the preparation of Form 5500 annual reports for the Continental Plans and the
Holdings Plans, where applicable.
8.6 SUCCESSORS; PARTIES IN INTEREST. This Employee Benefits Separation
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and their successors, and nothing in this Employee Benefits Separation
Agreement, express or implied, is intended to
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or shall confer upon any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Employee Benefits Separation Agreement.
8.7 BENEFICIARY DESIGNATIONS. Holdings shall use reasonable best
efforts to cause all beneficiary designations made by Holdings Employees for
Continental Plans to be deemed as valid beneficiary designations under the
corresponding Holdings Plans until such beneficiary designations are replaced or
revoked by the Holdings Employee who made the beneficiary designation.
8.8 CONSENT OF THIRD PARTIES. If any provision of this Employee
Benefits Separation Agreement is dependent on the consent of any third party
(for example, a vendor) and such consent is withheld, Continental and Holdings
shall use reasonable best efforts to implement the applicable provisions of this
Employee Benefits Separation Agreement to the full extent practicable. If any
provision of this Employee Benefits Separation Agreement cannot be implemented
due to the failure of such third party to consent, Continental and Holdings
shall negotiate in good faith to implement the provision in a mutually
satisfactory manner.
ARTICLE IX
MISCELLANEOUS
9.1 EFFECT IF DISTRIBUTION DOES NOT OCCUR. If the Distribution does
not occur, then all actions and events that are, under this Employee Benefits
Separation Agreement, to be taken or occur effective as of Immediately preceding
the Independence Date, as of the Independence Date, or otherwise in connection
with the Distribution, shall not be taken or occur except to the extent
specifically agreed by Holdings and Continental.
9.2 COMPLETE AGREEMENT. Except as otherwise set forth in this Employee
Benefits Separation Agreement, this Employee Benefits Separation Agreement shall
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and shall supersede all prior agreements and
understandings, whether written or oral, between the parties with respect to
such subject matter.
9.3 RELATIONSHIP OF PARTIES. Nothing in this Employee Benefits
Separation Agreement shall be deemed or construed by the parties or any third
party as creating the relationship of principal and agent, partnership or joint
venture between the parties, it being understood and agreed that no provision
contained herein, and no act of the parties, shall be deemed to create any
relationship between the parties other than the relationship set forth herein.
9.4 AFFILIATES. Each of Continental and Holdings shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Employee Benefits Separation Agreement to be
performed by a Continental Affiliate or a Holdings Affiliate, respectively.
9.5 CONSENT TO EXCLUSIVE JURISDICTION. Any action, suit or proceeding
arising out of any claim that the parties cannot settle through good faith
negotiations shall be litigated exclusively in the state courts of Xxxxxx County
of the State of Texas. Each of the parties hereto hereby irrevocably and
unconditionally (a) submits to the jurisdiction of the state courts of Texas for
any such action, suit or proceeding, (b) agrees not to commence any such action,
suit or
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proceeding except in the state courts of Texas, (c) waives, and agrees not to
plead or to make, any objection to the venue of any such action, suit or
proceeding in the state courts of Texas, (d) waives, and agrees not to plead or
to make, any claim that any such action, suit or proceeding brought in the state
courts of Texas has been brought in an improper or otherwise inconvenient forum,
(e) waives, and agrees not to plead or to make, any claim that the state courts
of Texas lack personal jurisdiction over it, and (f) waives its right to remove
any such action, suit or proceeding to the federal courts except when such
courts are vested with sole and exclusive jurisdiction by statute. Continental
and Holdings shall cooperate with each other in connection with any such action,
suit or proceeding to obtain reliable assurances that confidential treatment
will be accorded any information that any party shall reasonably deem to be
confidential or proprietary. Each of the parties hereto further covenants and
agrees that, until the expiration of all applicable statutes of limitations
relating to potential claims under this Employee Benefits Separation Agreement,
each such party shall maintain a duly appointed agent for the service of
summonses and other legal process in the State of Texas.
9.6 NOTICES. All notices shall be in writing and shall be deemed given
upon (a) a transmitter's confirmation of a receipt of a facsimile transmission
(but only if followed by confirmed delivery of a standard overnight courier the
following business day or if delivered by hand the following business day), or
(b) confirmed delivery of a standard overnight courier or delivered by hand, to
the parties at the following addresses:
if to Continental:
Continental Airlines, Inc.
0000 Xxxxx Xxxxxx, XXXXX
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
if to ExpressJet Holdings, to:
ExpressJet Holdings, Inc.
0000 Xxxxx Xxxxxx, XXXXX
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
if to ExpressJet Airlines, to:
ExpressJet Airlines, Inc.
0000 Xxxxx Xxxxxx, XXXXX
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
or to such other address as either party hereto may have furnished to the other
party by a notice in writing in accordance with this Section 9.6.
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9.7 AMENDMENT AND TERMINATION. This Employee Benefits Separation
Agreement may not be amended or modified in any respect except by a written
agreement signed by all of the parties hereto.
9.8 COUNTERPARTS. This Employee Benefits Separation Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Employee Benefits Separation Agreement may be executed by facsimile signature.
9.9 WAIVER. The observance of any term of this Employee Benefits
Separation Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) by the party entitled to enforce such
term, but such waiver shall be effective only if it is in writing signed by the
party against which such waiver is to be asserted. Unless otherwise expressly
provided in this Employee Benefits Separation Agreement, no delay or omission on
the part of any party in exercising any right or privilege under this Employee
Benefits Separation Agreement shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right or privilege under this Employee
Benefits Separation Agreement operate as a waiver of any other right or
privilege under this Employee Benefits Separation Agreement nor shall any single
or partial exercise of any right or privilege preclude any other or further
exercise thereof or the exercise of any other right or privilege under this
Employee Benefits Separation Agreement. No failure by a party to take any action
or assert any right or privilege hereunder shall be deemed to be a waiver of
such right or privilege in the event of the continuation or repetition of the
circumstances giving rise to such right unless expressly waived in writing by
the party against whom the existence of such waiver is asserted.
9.10 SEVERABILITY. Any provision of this Employee Benefits Separation
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.11 REMEDIES. Except as otherwise provided herein, each of the
parties hereto shall be entitled to enforce its rights under this Employee
Benefits Separation Agreement specifically, to recover damages and costs
(including reasonable attorneys' fees) caused by any breach of any provision of
this Employee Benefits Separation Agreement and to exercise all other rights
existing in its favor. Each party hereto acknowledges and agrees that under
certain circumstances the breach by Continental or any Continental Affiliates or
Holdings or any Holdings Affiliates of a term or provision of this Employee
Benefits Separation Agreement will materially and irreparably harm another
party, that money damages will accordingly not be an adequate remedy for such
breach and that the non-defaulting party or parties, in its or their sole
discretion and in addition to its or their rights under this Employee Benefits
Separation Agreement and any other remedies it or they may have at law or in
equity, may apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any breach of the provisions of
this Employee Benefits Separation Agreement.
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9.12 REFERENCES; CONSTRUCTION. The section and other headings and
subheadings contained in this Employee Benefits Separation Agreement are solely
for the purpose of reference, are not part of the agreement of the parties
hereto, and shall not in any way affect the meaning or interpretation of this
Employee Benefits Separation Agreement. All references to days or months shall
be deemed references to calendar days or months. All references to "$" shall be
deemed references to United States dollars. Unless the context otherwise
requires, any reference to a "Section" shall be deemed to refer to a section of
this Employee Benefits Separation Agreement. The words "hereof," "herein" and
"hereunder" and words of similar import referring to this Employee Benefits
Separation Agreement refer to this Employee Benefits Separation Agreement as a
whole and not to any particular provision of this Employee Benefits Separation
Agreement. Whenever the words "include," "includes" or "including" are used in
this Employee Benefits Separation Agreement, unless otherwise specifically
provided, they shall be deemed to be followed by the words "without limitation."
This Employee Benefits Separation Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the
party drafting or causing the document to be drafted.
9.13 GOVERNING LAW. To the extent not preempted by applicable Federal
law, this Employee Benefits Separation Agreement shall be governed by and
construed in accordance with the laws of the State of Texas (other than the laws
regarding choice of laws and conflicts of laws that would apply the substantive
laws of any other jurisdiction) as to all matters, including matters of
validity, construction, effect, performance and remedies.
IN WITNESS WHEREOF, the parties have caused this Employee Benefits
Separation Agreement to be duly executed as of the date first above written.
CONTINENTAL AIRLINES, INC.
By:
-----------------------------------
Name:
-------------------------------
Title:
------------------------------
EXPRESSJET HOLDINGS, INC.
By:
-----------------------------------
Name:
-------------------------------
Title:
------------------------------
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EXPRESSJET AIRLINES, INC.
By:
-----------------------------------
Name:
-------------------------------
Title:
------------------------------
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