EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 16th day of
November, 1997, by and between WORLDCORP, INC., a Delaware corporation, its
successor and assigns ("WorldCorp") and XXXXXXX X. XXXXXX ("Xxxxxx").
RECITALS
WHEREAS, WorldCorp desires to employ and retain Xxxxxx as its Chief
Executive Officer and Xxxxxx desires to be employed by WorldCorp on the terms
and in consideration of WorldCorp's provision of the benefits to be provided
under this Agreement.
WHEREAS, WorldCorp and Xxxxxx desire to set forth the terms of Xxxxxx'x
employment and the compensation and benefits to be provided by WorldCorp in this
Agreement.
TERMS
IN CONSIDERATION OF the mutual covenants contained herein, WorldCorp
and Xxxxxx agree as follows:
1. Employment. WorldCorp agrees to employ Xxxxxx and Xxxxxx
agrees to be employed by WorldCorp on the terms and conditions hereinafter
set forth.
2. Commencement Date and Term. The commencement date of this Agreement
shall be as of November 16, 1997 (the "Commencement Date"). Subject to the
provisions of Section 5, the term of Xxxxxx'x employment hereunder shall be for
two (2) years from the Commencement Date until and including November 15, 1999
(the "Original Expiration Date"); provided, however, that the term shall be
extended automatically for an additional period of one (1) year commencing on
the Original Expiration Date unless either WorldCorp or Xxxxxx gives written
notice to the other, at least twelve (12) months prior to the Original
Expiration Date, of its or his election not to extend the term of this
Agreement; and provided, further, that the term as extended shall be further
extended automatically for an additional period of one (1) year commencing on
the first anniversary of the Original Expiration Date and on each subsequent
anniversary thereafter, unless either WorldCorp or Xxxxxx gives written notice
to the other, at least six (6) months prior to the date of any such anniversary,
of its or his election not to further extend the term of this Agreement. The
last day of the term as so extended from time to time is herein sometimes
referred to as the "Expiration Date."
3. Positions and Duties. Xxxxxx shall serve WorldCorp as WorldCorp's
Chief Executive Officer with the duties described in WorldCorp's Bylaws, as in
effect on the Commencement Date, and in the attached Exhibit A to this
Agreement, and such other duties as WorldCorp's Board of Directors (the "Board")
shall reasonably assign from time to time. During his employment hereunder,
Xxxxxx shall devote such time and effort as shall be reasonably required to
discharge his duties hereunder. At all times during his employment hereunder,
Xxxxxx shall continue to serve as a member of the Board, and Xxxxxx may also
serve as a member of the board of directors or similar body of, or in other
offices or positions with respect to, any other company
or companies that are not direct commercial competitors of WorldCorp. Xxxxxx
agrees to resign from the Board of Directors of WorldCorp upon and in connection
with the termination of his employment, provided that all of the terms of this
Agreement have been satisfied and all of WorldCorp's obligations hereunder have
been fulfilled.
4. Compensation and Benefits. The compensation and benefits payable to
Xxxxxx for all services rendered by Xxxxxx under this Agreement shall be as
follows:
(a) Salary. WorldCorp shall pay Xxxxxx a minimum salary at the
rate of $350,000 per year. Such salary shall be (i) payable bi-monthly in
accordance with WorldCorp's standard payroll policies (and prorated for any
partial pay period), and (ii) subject to review and increase (but not decrease)
at any time in the discretion of the Board.
(b) Annual Bonus. Xxxxxx shall be entitled to receive an
annual bonus of up to 75% of his annual salary to be determined in good faith by
the Compensation Committee of WorldCorp's Board of Directors based upon
WorldCorp's achievement of the performance goals set forth on Exhibit B attached
to this Agreement. Such bonus shall be paid not later than April 15 of the
calendar year following the calendar year to which it applies. In addition,
Xxxxxx shall be entitled to participate in all bonus and incentive compensation
plans or arrangements provided by WorldCorp to its officers and directors after
the Commencement Date.
(c) Business Expenses. WorldCorp shall reimburse Xxxxxx for
all reasonable travel and other business expenses incurred by him in the
performance of his duties and responsibilities, including without limitation any
such expenses incurred in connection with Xxxxxx'x commuting to and from his
residence and WorldCorp offices (including air transportation, ground
transportation (including provision of an automobile) and lodging (including
maintenance of an apartment)), subject to and consistent with, in the case of
periodic expense reimbursements, WorldCorp's policies with respect to
substantiation and documentation as may be established by WorldCorp for all
officers and directors from time to time. WorldCorp also agrees to provide for
the payment of or to reimburse Xxxxxx for any legal fees and costs incurred in
connection with the drafting, review and execution of this Agreement.
(d) Stock Options. Xxxxxx shall be granted, subject to the
Stock Option Agreements in the forms attached hereto as Exhibits C-1, C-2 and
C-3, respectively:
1. Options (the "WorldCorp Term Options") to
purchase 50,000 shares of WorldCorp's Common Stock, par value $.001 per
share ("WorldCorp Common Stock") pursuant to the 1988 WorldCorp Stock
Option Plan, or, if agreed to by WorldCorp and Xxxxxx, any stock option or
incentive plan which is hereafter adopted by WorldCorp (the "Plan"), at
an exercise price of $1.75, with such Options vesting with respect to an
equal number of the total shares as of the end of each of the first
twenty-four (24) calendar months following the Commencement Date.
2. Options to purchase 100,000 shares of WorldCorp's Common
Stock (the "WorldCorp Performance Options") pursuant to the 1988 WorldCorp
Stock Option Plan or, if agreed by WorldCorp and Xxxxxx, any stock option or
incentive plan which is hereafter adopted by
WorldCorp (the "Plan"), at an exercise price of $1.75, which Options shall vest
in their entirety upon the tenth anniversary of the Commencement Date, subject
to the following acceleration of such vesting:
(i) the vesting of the Option as to the first 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $2.18;
(ii) the vesting of the Option as to the second 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any (20) trading-day period during which the Company's stock
traded at or above $2.72;
(iii) the vesting of the Option as to the third 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $3.40;
(iv) the vesting of the Option as to the fourth 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $4.25;
(v) the vesting of the Option as to the fifth 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $5.31; and
(vi) the vesting of the Option as to the sixth 16,666.67 of the
100,000 WorldCorp Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $6.63.
3. Options (the Intelidata Term Options") to purchase 100,000
shares of Intelidata's Common Stock, par value $.001 per share ("Intelidata
Common Stock") owned by WorldCorp, at an exercise price of $2.98, with such
Options vesting with respect to an equal number of the total shares as of the
end of each of the first twenty-four (24) calendar months following the
Commencement Date.
4. Options to purchase 250,000 shares of Intelidata's Common Stock
(the "Intelidata Performance Options") owned by WorldCorp, at an exercise
price of $2.98, which Options shall vest in their entirety upon the tenth
anniversary of the Commencement Date, subject to the following acceleration of
such vesting:
(i) the vesting of the Option as to the first 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the Company's
stock traded at or above $3.72;
(ii) the vesting of the Option as to the second 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to the 21st
day following any twenty (20) trading-day period during which the Company's
stock traded at or above $4.65;
(iii) the vesting of the Option as to the third 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the Company's
stock traded at or above $5.81;
(iv) the vesting of the Option as to the fourth 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to
the 21st day following any twenty (20) trading-day period during which the
Company's stock traded at or above $7.26;
(v) the vesting of the Option as to the fifth 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the
Company's stock traded at or above $9.07; and
(vi) the vesting of the Option as to the sixth 41,666 of the
250,000 Intelidata Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the
Company's stock traded at or above $11.33;
5. Options (the "World Airways Term Options") to purchase
30,000 shares of World Airways Common Stock, par value $.001 per share
("World Airways Common Stock") owned by WorldCorp, at an exercise price of
$7.92, with such Options vesting with respect to an equal number of the total
shares as of the end of each of the first twenty-four (24) calendar months
following the Commencement Date.
6. Options to purchase 70,000 shares of World Airways
Common Stock (the "World Airways Performance Options") owned by WorldCorp,
at an exercise price of $7.92, which Options shall vest in their entirety upon
the tenth anniversary of the Commencement Date, subject to the following
acceleration:
(i) the vesting of the Option as to the first 11,666 of the 70,000
World Airways Performance Options shall be accelerated on and to the 21st day
following any twenty (20) trading-day period during which the Company's stock
traded at or above $9.9;
(ii) the vesting of the Option as to the second 11,666 of the
70,000 World Airways Performance Options shall be accelerated on and to the
21st day following any (20) trading-day period during which the Company's stock
traded at or above $12.37;
(iii) the vesting of the Option as to the third 11,666 of the
70,000 World Airways Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the Company's
stock traded at or above $15.46;
(iv) the vesting of the Option as to the fourth 11,666 of the
70,000 World Airways Performance Options shall be accelerated on and to the
21st day following any twenty (20) trading-day period during which the
Company's stock traded at or above $19.32;
(v) the vesting of the Option as to the fifth 11,666 of the 70,000
World Airways Performance Options shall be accelerated on and to the 21st day
following any twenty (20) trading-day period during which the Company's stock
traded at or above $24.15; and
(vi) the vesting of the Option as to the sixth 11,666 of the 70,000
World Airways Performance Options shall be accelerated on and to the 21st day
following any twenty (20) trading-day period during which the Company's stock
traded at or above $30.18.
The WorldCorp Term Options and WorldCorp Performance Options granted to
Xxxxxx are intended to, and shall to the extent permitted by law be structured
so as to, qualify as incentive stock options under Section 422 of the Internal
Revenue Code of 1986, as amended.
(e) Regular Benefits. Xxxxxx shall be entitled to participate
in all benefit plans or arrangements available to officers or directors of
WorldCorp, all as more specifically summarized on Exhibit D attached to this
Agreement, including without limitation WorldCorp's Employee Savings and Stock
Ownership Plan, any medical insurance, life insurance, long-term disability,
retirement and security plans, savings and qualified or nonqualified retirement
plans, and other benefit plans from time to time established for officers or
directors of WorldCorp. During the term of this Agreement, WorldCorp shall
maintain and pay the annual premiums on a term life insurance policy insuring
Xxxxxx'x life and providing for a death benefit of at least $5,000,000, and
Xxxxxx shall be owner of and shall enjoy all incidents of ownership of such
policy, including without limitation the right to designate one or more
beneficiaries of, and to assign the ownership of, such policy from time to time.
If any benefits to which Xxxxxx shall otherwise be entitled hereunder are not
permitted to be provided to him under any applicable plan document or applicable
law governing the payment or provision of such benefits, WorldCorp shall pay or
provide for payment of equivalent benefits, taking into account service credits
for such benefits, to Xxxxxx or his estate or beneficiaries. WorldCorp shall
reimburse Xxxxxx on an annual basis for premiums paid by Xxxxxx with respect to
a disability policy selected by Xxxxxx providing for benefits of up to 75% of
Xxxxxx'x average annual compensation (calculated in accordance with the terms of
such policy), plus an amount sufficient to pay all federal, state and local
taxes applicable to such payment.
(f) Indemnification; Directors and Officers Liability
Insurance. WorldCorp shall provide or cause to be provided to Xxxxxx
indemnification against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with any threatened, pending
or completed action, claim, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the right of
WorldCorp) by reason of Xxxxxx serving or having served as an officer, director
or employee of WorldCorp or any affiliate of WorldCorp. WorldCorp shall advance
expenses (including attorneys' fees) incurred by Xxxxxx in the defense of any
such action, claim, suit or proceeding, and WorldCorp shall maintain directors
and officers liability insurance coverage (including without limitation coverage
for claims pursuant to any state or federal securities law or regulation) upon
substantially the same terms and conditions as set forth in the Indemnification
Agreement dated as of the date of this Agreement between Xxxxxx and WorldCorp,
Inc., a copy of which is attached as Exhibit E to this Agreement. The provisions
of this Section 4(f) are intended to supplement and to be in addition to, and
not to be in lieu of, any rights of Xxxxxx granted to WorldCorp's officers and
directors under WorldCorp's charter, articles of
incorporation, any other corporate document, or applicable law.
5. Termination and Termination Benefits. Notwithstanding the provisions
of Section 2 of this Agreement, Xxxxxx'x employment hereunder shall terminate
under the following circumstances and shall be subject to the following
provisions:
(a) Death. In the event of Xxxxxx'x death during Xxxxxx'x
employment hereunder, Xxxxxx'x employment shall terminate on the date of his
death. Notwithstanding such termination, Xxxxxx'x estate or designated
beneficiaries shall be entitled to receive (i) the salary specified under
Section 4(a) above for a period of one (1) month following the date of death,
(ii) any accrued portion of any bonus which is ultimately determined to have
been payable to Xxxxxx and allocable to the period prior to death, and (iii) any
benefits which shall have been provided to Xxxxxx under Section 4 to the extent
permitted under any applicable plan documents.
(b) Disability. If, due to any physical or mental illness,
condition, dependency or incapacity (hereafter, "disability"), Xxxxxx shall be
unable to adequately perform substantially all of his duties and
responsibilities hereunder, and provided such disability continues for an
uninterrupted period of at least twelve (12) months, (a) Xxxxxx'x employment
hereunder shall be deemed terminated as of the end of the relevant period of
disability or, if later, the final determination of such disability, and (b)
WorldCorp, acting through its Board and at any time prior to the expiration of
any relevant period of disability and the final determination of such
disability, may designate another executive to act in Xxxxxx'x place during the
period of such disability. In the event of any dispute as to whether Xxxxxx has
suffered a disability justifying termination, such dispute shall be resolved at
WorldCorp's cost by a panel of three physicians, one designated by Xxxxxx, one
designated by WorldCorp, and a third designated by the first two panel members.
Notwithstanding any termination of Xxxxxx'x employment under this Section 5(b),
WorldCorp shall continue to pay to Xxxxxx his full salary and benefits under
Section 4 of this Agreement until the earlier of the date on which Xxxxxx
becomes eligible for disability income payments under WorldCorp's disability
income plan or the Expiration Date. While receiving disability income payments
under such plan, WorldCorp shall continue to pay to Xxxxxx the difference
between such disability income payments and his salary under Section 4 until the
Expiration Date (but not any bonus, except as accrued through the date of
determination of disability). Notwithstanding the termination of Xxxxxx'x
employment hereunder, Xxxxxx shall be entitled to continue participation in all
medical and other benefit plans provided for under Section 4 for a period of
time following such termination equal in length to the period of Xxxxxx'x
employment with WorldCorp. If any benefits to which Xxxxxx shall otherwise be
entitled hereunder are not permitted to be provided to him under any applicable
plan document or applicable law governing the payment or provision of such
benefits, WorldCorp shall pay or provide for payment of equivalent benefits,
taking into account service credits for such benefits, to Xxxxxx or his estate
or beneficiaries.
(c) Termination by WorldCorp for Cause. Subject to the
provisions of this Section 5(c), Xxxxxx'x employment hereunder may be terminated
by WorldCorp for Cause. If the Board determines by the majority vote of its
entire membership that Xxxxxx should be terminated for Cause, the Board shall
send written notice to Xxxxxx setting forth in reasonable detail the nature
of the Cause. No termination shall become effective under this Section 5(c)
until (i) such vote is obtained and such notice is sent to and received by
Xxxxxx, (ii) following Xxxxxx'x receipt of such notice, Xxxxxx has been provided
a reasonable opportunity to meet with the entire Board and discuss the Board's
notice to him, and (iii) following such meeting, the Board ratifies its earlier
vote to terminate Xxxxxx for Cause by a second vote of a majority of its entire
membership. Only the following shall constitute "Cause" for such termination:
(i) gross negligence, willful misconduct or dishonesty in office or breach of a
material fiduciary duty owed to WorldCorp; (ii) conviction of a felony, a crime
of moral turpitude or commission of an act of embezzlement or fraud against
WorldCorp or any affiliate of WorldCorp; (iii) willful failure to perform a
substantial portion of his duties and responsibilities hereunder (unless such
failure results from Xxxxxx'x illness or disability).
(d) Termination by WorldCorp Without Cause. Xxxxxx'x
employment with WorldCorp may be terminated by WorldCorp without Cause provided
that (i) such termination is approved by the affirmative vote of two-thirds
(2/3) of all members of the Board, (ii) Xxxxxx is given at least ninety (90)
days' prior written notice of such termination, and (iii) Xxxxxx shall be
entitled to receive the benefits described herein and in Section 5(f) below.
Notwithstanding the termination of Xxxxxx'x employment hereunder, Xxxxxx shall
be entitled to continue participation in all medical and other benefit plans
provided for under Section 4 for a period following such termination equal to
the period of Xxxxxx'x employment with WorldCorp. If any benefits to which
Xxxxxx shall otherwise be entitled hereunder are not permitted to be provided to
him under any applicable plan document or applicable law governing the payment
or provision of such benefits, WorldCorp shall pay or provide for payment of
equivalent benefits, taking into account service credits for such benefits, to
Xxxxxx or his estate or beneficiaries.
(e) Termination by Xxxxxx. Xxxxxx may terminate his employment
hereunder with or without Good Reason (as defined below) by giving the Board at
least thirty (30) days' prior written notice of termination of his employment,
and he shall not be required to render any further services to WorldCorp after
the expiration of such thirty (30)-day period. In the event of termination for
Good Reason, Xxxxxx shall specify in the notice the event or circumstances
constituting Good Reason. In the event of termination by Xxxxxx for Good Reason,
Xxxxxx shall be entitled to the compensation and benefits specified herein and
in Section 5(f) below. In the event of termination by Xxxxxx without Good
Reason, Xxxxxx shall be entitled to no further compensation or benefits under
this Agreement other than any salary accrued prior to the effective date of such
termination and the right to retain ownership of the life insurance policy
described in Section 4(e) above. Notwithstanding the termination of Xxxxxx'x
employment hereunder, Xxxxxx shall be entitled to continue participation in all
medical and other benefit plans provided for under Section 4 for a period
following such termination equal to the period of Xxxxxx'x employment with
WorldCorp. If any benefits to which Xxxxxx shall otherwise be entitled hereunder
are not permitted to be provided to him under any applicable plan document or
applicable law governing the payment or provision of such benefits, WorldCorp
shall pay or provide for payment of equivalent benefits, taking into account
service credits for such benefits, to Xxxxxx or his estate or beneficiaries.
Only the following shall constitute "Good Reason" for termination by Xxxxxx: (i)
the relocation of WorldCorp's principal offices or headquarters or Xxxxxx'x
place of employment to a location which would make Xxxxxx'x continued
maintenance of his principal residence in Boston, Massachusetts, materially
inconvenient to him; whether in terms of expense, commuting or travel time or
other factors; (ii) the
failure of Xxxxxx at any time to be elected to or to continue to be entitled to
serve on the Board; (iii) the failure of WorldCorp to comply with the provisions
of Section 4 of this Agreement or material breach by WorldCorp of any other
provision of this Agreement, including without limitation WorldCorp's failure to
make any payment under Section 4 within five (5) days of the due date of such
payment or WorldCorp's failure to determine Xxxxxx'x annual bonus in good faith
and on a timely basis; (iv) the material diminishment or material change in the
duties, responsibilities or position of Xxxxxx, (v) the discontinuation of,
diminution in the benefits payable under, or material adverse amendment or
alteration of, and whether it impacts all participants or only Xxxxxx
individually, any compensation, bonus or benefit plan or arrangement in which
Xxxxxx was entitled to participate as of the Commencement Date and which
constitutes a material part of Xxxxxx'x total compensation and benefits, unless
an economically equivalent substitute arrangement or benefit acceptable to
Xxxxxx is adopted for the benefit of Xxxxxx; (vi) the sale, acquisition, merger,
consolidation, dissolution, liquidation, reorganization or other restructuring
of WorldCorp; or (vii) the occurrence of a Change in Control (as defined in
Section 5(g) below) with respect to WorldCorp.
(f) Acceleration of Salary, Bonus and Benefits if Without
Cause or for Good Reason. In the event of termination by WorldCorp without Cause
and other than for death or disability, or by Xxxxxx with Good Reason, (i)
WorldCorp shall within five (5) days after the date of termination pay Xxxxxx,
in one lump-sum payment, the total undiscounted amount of his entire salary and
bonus which would otherwise become due and payable under Sections 4(a) and 4(b)
through the Expiration Date (or, in the case of any bonus not yet determined,
such bonus shall be paid within five (5) days after the amount of such bonus is
determined); (ii) any stock options to which Xxxxxx was or may have become
entitled, whether or not granted or vested as of the date of termination, shall
be immediately granted and become immediately vested and exercisable; and (iii)
the regular benefits described in Section 4(e) shall continue to be provided to
Xxxxxx at WorldCorp's expense as provided under Sections 5(d) and 5(e). In the
event WorldCorp fails to make any payment or provide any benefit hereunder, the
unpaid amount or value of the benefit will accrue interest at an annual rate
equal to the prime rate charged by WorldCorp's primary depository bank plus 5%,
and Xxxxxx shall be entitled to reimbursement of all costs, including reasonable
attorneys' fees and costs, incurred by him as a result of any such nonpayment or
any actions to collect the same.
(g) Change in Control. As used herein, a "Change in Control"
shall mean the occurrence of any of the following events or circumstances
subsequent to the date of this Agreement, it being agreed that no circumstance
or event occurring on or before the date of this Agreement shall constitute a
Change in Control:
(i) The acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") other than a trustee or
other fiduciary holding securities under an employee benefit plan of WorldCorp
(a "Person"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then
outstanding shares of common stock of WorldCorp (the "Outstanding WorldCorp
Common Stock") or the combined voting power of the then outstanding voting
securities of WorldCorp entitled to vote generally in the election of directors
(the "Outstanding WorldCorp Voting Securities");
(ii) There occurs any acquisition, merger or consolidation
of WorldCorp, by, with or into any other corporation (other than a
wholly-owned subsidiary of WorldCorp) and individuals who are directors of
WorldCorp immediately prior to the time the agreement of acquisition, merger or
consolidation is executed shall fail to constitute a majority of the board of
directors of the survivor or successor company at any time after consummation of
the transaction; or
(iii) The shareholders of WorldCorp approve a sale or
disposition by WorldCorp of all or substantially all of its assets or a plan
of dissolution and liquidation of WorldCorp.
(h) Gross-Up for Excise Taxes. In the event any payment under
this Section 5 or otherwise to or for the benefit of Xxxxxx (determined without
regard to any additional payments required under this Section 5(h))(a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended, or any interest or penalties are incurred by
Xxxxxx with respect to such excise tax (collectively, the "Excise Tax"), then
Xxxxxx shall be entitled to receive an additional payment (a "Gross-Up Payment")
in an amount such that after payment by Xxxxxx of all taxes (including income
taxes and interest and penalties imposed with respect to such taxes) and the
Excise Tax imposed on the Gross-Up Payment, Xxxxxx retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed on the Payments. All
determinations required to be made under this Section 5(h) shall be made by
WorldCorp's regular independent auditors as of the date of termination of
Xxxxxx'x employment hereunder, and all fees and expenses of such auditors shall
be borne by WorldCorp.
6. Company Property. Upon the termination of Xxxxxx'x employment under
this Agreement, Xxxxxx shall be entitled to retain, as his own property, mobile
telephones, notebook computers and related peripherals, other electronic
equipment, furnishings, and other property issued to Xxxxxx in the course of his
employment.
7. Noncompete. For a period of one (1) year following the date of
termination of Xxxxxx'x employment hereunder other than by WorldCorp without
Cause or by Xxxxxx for Good Reason, Xxxxxx will not, directly or indirectly,
whether as an owner, partner, shareholder, consultant, agent, employee,
co-venturer or otherwise, or through any other person or entity, engage in the
business of selling and/or providing ACMI leases or any other business which is
competitive with WorldCorp's business within WorldCorp's existing or expanded
business markets.
8. Beneficiary. Any payments to which Xxxxxx is entitled under this
Agreement shall, in the event of his death, be made to his wife or such other
persons as Xxxxxx shall designate in writing to WorldCorp from time to time. If
no such beneficiaries survive Xxxxxx, such payments shall be made to Xxxxxx'x
estate.
9. Arbitration of Disputes. Any controversy or claim arising out of or
relating to the employment relationship between Xxxxxx and WorldCorp, this
Agreement or any breach thereof shall be settled by arbitration in accordance
with the laws of the Commonwealth of Virginia by three arbitrators, one of whom
shall be appointed by WorldCorp, one by Xxxxxx and the third by the first
two arbitrators. If the first two arbitrators cannot agree on the appointment of
a third arbitrator, then the third arbitrator shall be appointed by the American
Arbitration Association in Washington, D.C. Such arbitration shall be conducted
in Washington, D.C. in accordance with the rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The party against whom the arbitrators
shall render an award shall pay the other party's reasonable attorneys' fees and
other reasonable costs and expenses in connection with the enforcement of its
rights under this Agreement (including the enforcement of any arbitration award
in court), unless and to the extent the arbitrators shall determine that under
the circumstances recovery by the prevailing party of all or a part of any such
fees and costs and expenses would be unjust.
10. Assignment; Successors and Assigns, etc. Neither WorldCorp nor
Xxxxxx may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided, however, that WorldCorp may assign its rights under this
Agreement without the consent of Xxxxxx in the event that WorldCorp shall
hereafter effect a reorganization, consolidate with or merge into any other
Person, or transfer all or substantially all of its properties or assets to any
other Person. This Agreement shall inure to the benefit of and be binding upon
WorldCorp and Xxxxxx, their respective successors, executors, administrators,
heirs and permitted assigns. In the event of Xxxxxx'x death prior to the
completion by WorldCorp of all payments due him under this Agreement, WorldCorp
shall continue such payments to Xxxxxx'x beneficiary designated in writing to
WorldCorp prior to his death (or to his estate, if he fails to make such
designation).
11. Enforceability. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
12. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
13. Notices. Any notices, request, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid (in which
case notice shall be deemed to have been given on the third day after mailing),
or by overnight delivery by a reliable overnight courier service (in which case
notice shall be deemed to have been given on the day after delivery to such
courier service) to Xxxxxx at the last address Xxxxxx has filed in writing with
WorldCorp or, in the case of WorldCorp, at its main offices, attention of the
Board.
14. Entire Agreement; Amendment. This Agreement may be amended or
modified only by a written instrument approved by each of the Board of WorldCorp
and the Compensation Committee thereof, signed by Xxxxxx and by a duly
authorized representative of WorldCorp. This Agreement, constitutes the entire
agreement between the parties with respect to the subject matter hereof and no
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
15. Governing Law. This is a Virginia contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Virginia, without giving effect to the choice of law principles of any state.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by WorldCorp, by its duly authorized officer, and by Xxxxxx, as of
the date first above written.
WORLDCORP, INC.
By:
Title:
Date:
XXXXXXX X. XXXXXX
Date:
Address:
