EXHIBIT 10.20
EMPLOYMENT AGREEMENT
Agreement dated as of February 7, 1992, between USAir, Inc.,
a Delaware corporation, having a place of business at Crystal Park
Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (the "Company") and
W. Xxxxxx Xxxxx, residing at 0000 Xxxxxxx Xxxxx, Xxx. 0000,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Executive").
WITNESSETH
WHEREAS, the Executive has assumed duties of a responsible
nature to the benefit of the Company and to the satisfaction of its
Board of Directors (the "Board");
WHEREAS, the Board believes it to be in the best interests of
the Company to enter into this Agreement to assure Executive's
continuing services to the Company including, but not limited to,
under circumstances in which there is a possible, threatened or
actual Change of Control (as defined below) of the Company; and
WHEREAS, the Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change
of Control and to encourage the Executive's full attention and
dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change
of Control which ensure that the compensation and benefits
expectations of the Executive will be satisfied and which are
competitive with those of other corporations. Therefore, in order
to accomplish all the above objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the Company and the Executive hereby agree as follows:
1. Certain Definitions.
(a) The "Effective Date" shall mean the date hereof.
(b) The "Change of Control Date" shall mean the first date
during the Employment Period (as defined in Section 1(c)) on which
a Change of Control (as defined in Section 2) occurs. Anything in
this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive's employment with the Company
is terminated or the Executive ceases to be an officer of the
Company prior to the date on which the Change of Control occurs,
and if it is reasonably demonstrated by the Executive that such
termination of employment or cessation of status as an officer (i)
was at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (ii) otherwise arose
in connection with or anticipation of the Change of Control, then
for all purposes of this Agreement the "Change of Control Date"
shall mean the date immediately prior to the date of such termina-
tion of employment or cessation of status as an officer.
(c) The "Employment Period" shall mean the period commencing
on the Effective Date and ending on the earlier to occur of (i) the
fourth anniversary of such date or (ii) the first day of the month
next following the Executive's 65th birthday ("Normal Retirement
Date"); provided, however, that commencing on the date one year
after the Effective Date, and on each annual anniversary of such
date (such date and each annual anniversary thereof shall be
hereinafter referred to as the "Renewal Date"), the Employment
Period shall be automatically extended so as to terminate on the
earlier of (x) four years from such Renewal Date or (y) the
Executive's Normal Retirement Date, unless at least 30 days prior
to the Renewal Date the Company shall give notice to the Executive
that the Employment Period shall not be so extended; and provided,
further, that upon the occurrence of a Change of Control Date, the
Employment Period shall automatically be extended so as to
terminate on the earlier to occur of (1) the fourth anniversary of
such date or (2) the Executive's Normal Retirement Date.
2. Change of Control. For the purpose of this Agreement, a
"Change in Control" shall mean:
(a) 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")) of benefi-
cial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (i) the then outstanding
shares of common stock of the Company's parent, USAir Group, Inc.
("Group") (the "Outstanding Group Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of
Group entitled to vote generally in the election of directors (the
"Outstanding Group Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change of Control:
(w) any acquisition directly from Group, (x) any acquisition by
Group or any of its subsidiaries, (y) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
Group or any of its subsidiaries or (z) any acquisition by any
corporation with respect to which, following such acquisition, more
than 85% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then
outstanding voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors, is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
beneficial owners, respectively of the Outstanding Group Common
Stock and Outstanding Group Voting Securities in substantially the
same proportions as their ownership, immediately prior to such
acquisition, of the Outstanding Group Common Stock and Outstanding
Group Voting Securities, as the case may be; or
(b) Individuals who, as of the date hereof, constitute
Group's Board of Directors (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Group Board of
Directors; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomina-
tion for election by Group's shareholders, was approved by a vote
of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened solicitation of
proxies or consents; or
(c) Approval by the shareholders of Group of a reorganiza-
tion, merger or consolidation, in each case, with respect to which
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Group
Common Stock and Outstanding Group Voting Securities immediately
prior to such reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 85% of, respectively, the
then outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or xxxxxxx-
dation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation
of the Outstanding Group Common Stock and the Outstanding Group
Voting Securities, as the case may be; or
(d) Approval by the shareholders of Group of (i) a complete
liquidation or dissolution of Group or (ii) the sale or other
disposition of all or substantially all of the assets of Group,
other than to a corporation, with respect to which following such
sale or other disposition, more than 85% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Group
Common Stock and Outstanding Group Voting Securities immediately
prior to such sale or other disposition in substantially the same
proportion as their ownership, immediately prior to such sale or
other disposition, of the Outstanding Group Common Stock and
Outstanding Group Voting Securities, as the case may be.
3. Employment Period. The Company hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to
remain in the employ of the Company, during the Employment Period
under the terms and conditions provided herein.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period and prior to a Change
of Control Date, (A) if the Board determines that the Execu-
tive has been performing his duties in accordance with Section
4(a)(iii) hereof, it shall re-elect the Executive to a
responsible executive position with substantially similar
duties to the position held by the Executive on the Effective
Date, (B) the Executive's services shall be performed at the
Executive's location on the Effective Date, the Company's
headquarters, or a location where a substantial activity for
which the Executive has responsibility is located.
(ii) During the Employment Period and on and following
a Change of Control Date, (A) the Executive's position
(including status, offices, titles and reporting relation-
ships), authority, duties and responsibilities shall be at
least commensurate in all material respects with the most
significant of those held, exercised and assigned at any time
during the 90-day period immediately preceding the Change of
Control Date and (B) the Executive's services shall be
performed at the location where the Executive was employed
immediately preceding the Change of Control Date or any office
or location less than thirty-five (35) miles from such
location.
(iii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention
and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities.
During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate,
civic or charitable boards or committees, (B) deliver lec-
tures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as
such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee
of the Company in accordance with this Agreement. It is also
expressly understood and agreed that to the extent that such
activities have been conducted by the Executive prior to the
Effective Date, the continued conduct of such activities (or
the conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be
deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Company shall pay the Executive a base salary (x) for the
first 12 months of the term hereof at a rate not less than his
base salary in effect on the Effective Date of this Agreement,
and (y) during each succeeding 12 months of the term hereof at
a rate not less than his base salary in effect on the last day
of the preceding 12-month period. During the Employment
Period, base salary shall be reviewed at least annually and
shall be increased at any time and from time to time as shall
be substantially consistent with increases in base salary
awarded in the ordinary course of business to other key
employees of the Company and its subsidiaries. Any increase
in base salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Base salary
shall not be reduced after any such increase. Base salary
under Section 4(b)(i) shall hereinafter be referred to as the
"Base Salary".
(ii) Annual Bonus. In addition to Base Salary, the
Executive shall be awarded, for each fiscal year during the
Employment Period, an annual bonus as shall be determined by
the Board or its Compensation and Benefits Committee in
accordance with the executive incentive compensation plan of
Group approved on September 28, 1988 by the Group Board of
Directors ("Incentive Plan") or otherwise. For each fiscal
year beginning or ending after the Change of Control Date
during the Employment Period, the annual bonus shall be at
least equal to the bonus that would have been payable to the
Executive from the Company as if Group had achieved the
"target level of performance" under the Incentive Plan set at
the level for the fiscal year immediately preceding the Change
of Control Date and assuming that the Executive's "target
percentage" under the Incentive Plan at least equals such
target percentage assigned to the Executive immediately
preceding the Change of Control Date. The annual bonus under
Section 4(b)(ii) shall hereinafter be referred to as the
"Annual Bonus".
(iii) Incentive, Savings and Retirement Plans. In
addition to Base Salary and Annual Bonus payable as herein-
above provided, the Employee shall be entitled to participate
during the Employment Period in all incentive, savings and
retirement plans, practices, policies and programs applicable
on or after the Effective Date to other key employees of the
Company and its subsidiaries (including but not limited to the
employee benefit plans listed on Exhibit A hereto), in each
case providing benefits which are the economic equivalent to
those in effect on the Effective Date or as subsequently
amended.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the
case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its subsid-
iaries (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group
life, accidental death and travel accident insurance plans and
programs) applicable on or after the Effective Date to other
key employees of the Company and its subsidiaries, in each
case providing benefits which are the economic equivalent to
those in effect on the Effective Date or as subsequently
amended.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by the Executive in
accordance with the most favorable policies, practices and
procedures of the Company and its subsidiaries applicable at
any time on or after the Effective Date to other key employees
of the Company and its subsidiaries.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including
but not limited to pass privileges for non-revenue transporta-
tion, in accordance with the most favorable plans, practices,
programs and policies of the Company and its subsidiaries
applicable at any time on or after the Effective Date to other
key employees of the Company and its subsidiaries.
(vii) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an appropriate
office or offices of a size and with furnishings and other
appointments, and to secretarial and other assistance, as
provided to other key employees of the Company and its
subsidiaries.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance
with the most favorable plans, policies, programs and practic-
es of the Company and its subsidiaries as in effect on or
after the Effective Date with respect to other key employees
of the Company and its subsidiaries.
5. Termination.
(a) Mutual Agreement. During the Employment Period, the
Executive's employment hereunder may be terminated at any time by
mutual agreement on terms to be negotiated at the time of such
termination.
(b) Death or Disability. This Agreement shall terminate
automatically upon the Executive's death. If the Company deter-
mines in good faith that the Disability of the Executive has
occurred (pursuant to the definition of "Disability" set forth
below), it may give to the Executive written notice of its
intention to terminate the Executive's employment. In such event,
the Executive's employment with the Company shall terminate
effective on the 90th day after receipt by the Executive of such
notice given at any time after a period of six consecutive months
of Disability and while such Disability is continuing (the
"Disability Effective Date"), provided that, within the 90 days
after such receipt, the Executive shall not have returned to full-
time performance of the Executive's duties. For purposes of this
Agreement, "Disability" means disability which, at least six months
after its commencement, is determined to be total and permanent by
a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative (such
agreement as to acceptability not to be withheld unreasonably).
During such six month period and until the Disability Effective
Date, Executive shall be entitled to all compensation provided for
under Section 4 hereof.
(c) Cause. During the Employment Period, the Company may
terminate the Executive's employment for "Cause." For purposes of
this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by the Executive and intended to result in
substantial personal enrichment of the Executive at the expense of
the Company, (ii) repeated violations by the Executive of the
Executive's obligations under Section 4(a) of this Agreement which
are demonstrably willful and deliberate on the Executive's part and
which are not remedied in a reasonable period of time after receipt
of written notice from the Company or (iii) the conviction of the
Executive of a felony.
(d) Good Reason. During the Employment Period, the
Executive's employment hereunder may be terminated by the Executive
for Good Reason. For purposes of this Agreement, "Good Reason"
means
(i) the assignment to the Executive of any duties
inconsistent in any respect with Executive's position (includ-
ing status, offices, titles and reporting relationships),
authority, duties or responsibilities as contemplated by
Section 4(a)(i) or (ii) of this Agreement, or any other action
by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Execu-
tive;
(ii) (x) any failure by the Company to comply with
any of the provisions of Section 4(b) of this Agreement,
other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied
by the Company promptly after receipt of notice thereof
given by the Executive or (y) after the Change of Control
Date, any failure of the Company to pay Base Salary or Annual
Bonus in accordance with Sections 4(b)(i) and (ii), respec-
tively, and any failure by the Company to maintain or provide
the plans, programs, policies and practices, and benefits
described in Sections 4(b)(iii)- (viii) on the most favorable
basis such plans programs, policies and practices were
maintained and benefits provided during the 90-day period
immediately preceding the Change of Control Date, or if more
favorable to the Executive and/or the Executive's family, as
in effect at any time thereafter with respect to other key
employees of the Company and its subsidiaries;
(iii) the Company's requiring the Executive to be based
at any office or location other than that described in
Sections 4(a)(i)(B) or 4(a)(ii) (B) hereof, except for travel
reasonably required in the performance of the Executive's
responsibilities;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted
by this Agreement; or
(v) any failure by the Company to comply with and
satisfy Section 11(c) of this Agreement.
For purposes of this Section 5(d), any good faith determina-
tion of "Good Reason" made by the Executive on or after the Change
of Control Date shall be conclusive. Anything in this Agreement to
the contrary notwithstanding, a termination by the Executive for
any reason during the 30-day period immediately following the first
anniversary of the Change of Control Date shall be deemed to be a
termination for Good Reason for all purposes of this Agreement.
(e) Notice of Termination. Any termination by the Company
for Cause or by the Executive for Good Reason shall be communicated
by Notice of Termination to the other party hereto given in
accordance with Section 12(b) of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other that
the date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen (15) days after the
giving of such notice). The failure by the Executive to set forth
in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason shall not waive any right
of the Executive hereunder or preclude the Executive from asserting
such fact or circumstance in enforcing his rights hereunder.
(f) Date of Termination. "Date of Termination" means the
date of receipt of the Notice of Termination or any later date
specified therein, as the case may be; provided, however, that (i)
if the Executive's employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such termina-
tion and (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date
of death of the Executive or the Disability Effective Date, as the
case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Executive's employment is terminated by
reason of the Executive's death, this Agreement shall terminate
without further obligations to the Executive's legal representa-
tives under this Agreement, other than those obligations accrued or
earned and vested (if applicable) by the Executive as of the Date
of Termination, including, for this purpose (i) the Executive's
full Base Salary through the Date of Termination at the rate in
effect on the Date of Termination, disregarding any reduction in
Base Salary in violation of this Agreement (the "Highest Base
Salary"), (ii) the product of the Annual Bonus paid to the
Executive for the last full fiscal year and a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is
365 and (iii) any compensation previously deferred by the Executive
(together with any accrued interest thereon) and not yet paid by
the Company and any accrued vacation pay not yet paid by the
Company (such amounts specified in clauses (i), (ii) and (iii) are
hereinafter referred to as "Accrued Obligations"). All such
Accrued Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination. Anything in this Agreement to the
contrary notwithstanding, the Executive's family shall be entitled
to receive benefits at least equal to the most favorable benefits
provided by the Company and any of its subsidiaries to surviving
families of employees of the Company and such subsidiaries under
such plans, programs, practices and policies relating to family
death benefits, if any, in accordance with the most favorable
plans, programs, practices and policies of the Company and its
subsidiaries in effect on or after the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in
effect on the date of the Executive's death with respect to other
key employees of the Company and its subsidiaries and their
families.
(b) Disability. If the Executive's employment is terminated
by reason of the Executive's Disability, this Agreement shall
terminate without further obligations to the Executive, other than
those obligations accrued or earned and vested (if applicable) by
the Executive as of the Date of Termination, including for this
purpose, all Accrued Obligations. All such Accrued Obligations
shall be paid to the Employee in a lump sum in cash within 30 days
of the Date of Termination. Anything in this Agreement to the
contrary notwithstanding, the Employee shall be entitled after the
Disability Effective Date to receive disability and other benefits
at least equal to the most favorable of those provided by the
Company and its subsidiaries to disabled employees and/or their
families in accordance with such plans, programs, practices and
policies relating to disability, if any, in accordance with the
most favorable plans, programs, practices and policies of the
Company and its subsidiaries in effect on or after the Effective
Date or, if more favorable to the Executive and /or the Executive's
family, as in effect at any time thereafter with respect to other
key employees of the Company and its subsidiaries and their
families.
(c) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause, this Agreement shall
terminate without further obligations to the Executive (other than
the obligation to pay to the Executive the Highest Base Salary
through the Date of Termination plus the amount of any accrued
vacation pay not yet paid by the Company and any compensation
previously deferred by the Executive (together with accrued
interest thereon). If the Executive terminates employment other
than for Good Reason, this Agreement shall terminate without
further obligations to the Executive, other than those obligations
accrued or earned and vested (if applicable) by the Executive
through the Date of Termination, including for this purpose, all
Accrued Obligations and any obligations provided for in an
agreement, if any, between the Company and the Executive pursuant
to Section 5(a). All such Accrued Obligations shall be paid to
paid to the Executive in a lump sum in cash within 30 days of the
Date of Termination.
(d) Good Reason; Other Than for Cause or Disability.
(1) If, during the Employment Period and prior to a
Change of Control, the Company shall terminate the Executive's
employment other than for Cause, Disability or death or if the
Executive shall terminate his employment for Good Reason:
(i) the Company shall pay to the Executive in a
lump sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
A. to the extent not theretofore paid, the
Executive's Highest Base Salary through the Date of
Termination; and
B. basic salary at the rate of the Highest
Base Salary for the period from the Date of Termi-
nation until the end of the Employment Period; and
C. in the case of compensation previously
deferred by the Executive, all amounts previously
deferred (together with any accrued interest there-
on) and not yet paid by the Company, and any ac-
crued vacation pay not yet paid by the Company; and
(ii) for the remainder of the Employment Period, or
such longer period as any plan, program, practice or
policy may provide, the Company shall continue benefits
to the Executive and/or the Executive's family at least
equal to those which would have been provided to them in
accordance with the plans, programs, practices and
policies described in Section 4(b)(iv) and (vi) of this
Agreement if the Executive's employment had not been
terminated, including health insurance and life insur-
ance, in accordance with the most favorable plans,
practices, programs or policies of the Company and its
subsidiaries in effect on or after the Effective Date, or
if more favorable to the Executive, as in effect at any
time thereafter with respect to other key employees and
their families.
(2) If, during the Employment Period and on and after a
Change of Control Date, the Company shall terminate the Employee's
employment other than for Cause, Disability, or death or if the
Executive shall terminate his employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. to the extent not theretofore paid, the Execu-
tive's Highest Base Salary through the Date of Termina-
tion; and
B. the product of (x) the Annual Bonus paid to the
Executive for the last full fiscal year (if any) ending
during the Employment Period or, if higher, the Annual
Bonus paid to the Executive during the last full fiscal
year (if any) immediately preceding the Change of Control
Date (the higher of either amount under this (x) shall
hereinafter be called the "Recent Bonus") and (y) a
fraction, the numerator of which is the number of days in
the current fiscal year through the Date of Termination
and the denominator of which is 365; and
C. the product of (x) three and (y) the sum of (i)
the Highest Base Salary and (ii) the Recent Bonus (If by
reason of the Executive's date of hire or promotion, he
has not served for a full fiscal year in his position,
then for purposes of the calculations in subsection B
above and this subsection C, Annual Bonus shall be
calculated as provided in the second sentence of Section
4(b)(ii) hereof.); and
D. in the case of compensation previously deferred
by the Executive, all amounts previously deferred
(together with any accrued interest thereon) and not yet
paid by the Company, and any accrued vacation pay not yet
paid by the Company; and
E. the Executive shall be entitled to receive a
lump-sum retirement benefit equal to the difference
between (a) the actuarial equivalent of the benefit under
the Retirement Plan and any supplemental and/or excess
retirement plan the Executive would receive if he
remained employed by the Company at the compensation
level provided for in Sections 4(b)(i) and (ii) of this
Agreement for the remainder of the Employment Period and
(b) the actuarial equivalent of this benefit, if any,
under the Retirement Plan and any supplemental and/or
excess retirement plan; and
(ii) for the remainder of the Employment Period or such
longer period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the Executive
and/or the Executive's family at least equal to those which
would have been provided to them in accordance with the plans,
programs, practices and policies described in Sections
4(b)(iii)(with respect to any retirement plans), (iv) and (vi)
of this Agreement if the Executive's employment had not been
terminated, including health insurance and life insurance, in
accordance with the most favorable plans, practices, programs
or policies of the Company and its subsidiaries in effect on
or after the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to
other key employees and their families and for purposes of
eligibility for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be
considered to have remained employed until the end of the
Employment Period and to have retired on the last day of such
period.
7. Non-exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plans,
programs, policies or practices, provided by Group, the Company or
any of its subsidiaries and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such rights as
the Executive may have under any stock option, restricted stock or
other agreements with Group, the Company of any of its subsidiar-
ies. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or
program of Group, the Company or any of its subsidiaries at or
subsequent to the Date of Termination shall be payable in accor-
dance with such plan, policy practice or program.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defence or other claim, right or action
which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement.
The Company agrees to pay, to the full extent permitted by law, all
legal fees and expenses, as incurred by the Company, the Executive
and others, which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company or
others of the validity or enforceability of, or liability under,
any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive
about the amount of any payment pursuant of Section 9 of this
Agreement), plus in each case interest at the applicable Federal
rate provided for in Section 7872(f)(2) of the Internal Revenue
Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstand-
ing, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 9) (a
"Payment"), would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an addition-
al payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon Payments.
(b) Subject to the provisions of Section 9(c), all determina-
tions required to be made under this Section 9, including whether
a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by the firm of independent public accoun-
tants selected by Group to audit its financial statements (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that
there has been a Payment, or such earlier time as is requested by
the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint
another nationally recognized accounting firm to make the determi-
nations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this
Section 9, shall be paid to the Executive within 5 days of the
receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with a written opinion that failure to
report the Excise Tax on the Executive's applicable federal income
tax return would not result in the imposition of a negligence or a
similar penalty. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder,
it is possible that Gross-up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 9(c) and
the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Execu-
tive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten business days after the Executive knows of such claim and
shall apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the thirty-day period
following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Employee shall:
(i) give the Company any information reasonably request-
ed by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim,
(iv) permit the Company to participate in any proceed-
ings relating to such claim; provided, however, that the
Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax
or income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall
control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax
claimed and xxx for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more xxxxx-
late courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such
claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free
basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed
with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that
any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the Execu-
tive becomes entitled to receive any refund with respect to
such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly pay
to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), a determina-
tion is made that the Executive shall not be entitled to any
refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty days after
such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
10. Confidential Information. The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to Group, the
Company or any of their subsidiaries, and their respective
businesses, which shall have been obtained by the Executive's
employment by the Company or any of its subsidiaries and which
shall not be or become public knowledge (other than by acts by
Executive or his representatives in violation of this Agreement).
After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the
Company, communicate or divulge any such information, knowledge or
data to anyone other than the Company and those designated by it.
In no event shall an asserted violation of the provisions of this
Section 10 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
11. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by
the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the Company
to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law,
or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
W. Xxxxxx Xxxxx
0000 Xxxxxxx Xxxxx, Xxx. 0000
Xxxxxxxxx, XX 00000
If to the Company:
USAir, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and communica-
tions shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regula-
tion.
(e) The Executive's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of
such provision or any other provision thereof.
(f) Words or terms used in this Agreement which connote the
masculine gender are deemed to apply equally to female executives.
(g) This Agreement supersedes any prior employment agreement
between the Company and the Executive and contains the entire
understanding of the Company and the Executive with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and, pursuant to the authorization from its Board of Directors, the
Company has caused these presents to be executed in its name on its
behalf, all as of the day and year first above written.
EXECUTIVE
/s/W. Xxxxxx Xxxxx
____________________________________
USAIR, INC.
By: /s/Xxxx X. Xxxxxxxxx
________________________________
Xxxx X. Xxxxxxxxx
President & Chief Executive
Officer
Attest:
/s/Xxxxxxxx X. Xxxxx
________________________________
Secretary
Exhibit A
Retirement Plan for Certain Employees of USAir, Inc.
Target Benefit Plan for Employees of USAir, Inc.
USAir, Inc. Supplementary Retirement Benefit Plan
Officers' Supplemental Benefit Plan
1988 Stock Incentive Plan of USAir Group, Inc.
1984 Stock Option and Stock Appreciation Rights Plan of USAir
Group, Inc.
1988 Executive Incentive Compensation Plan of USAir Group, Inc.
USAir, Inc. 401(k) Savings Plan
Individual Supplemental Retirement Agreements with senior officers
of USAir, Inc.
Restricted Stock Agreements with certain senior officers of USAir,
Inc.
AMENDMENT NUMBER ONE TO
EMPLOYMENT AGREEMENT
This Amendment Number One, dated as of June 11, 1992, to the
Employment Agreement dated as of February 7, 1992, between USAir,
Inc., a Delaware corporation having a place of business at Crystal
Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Company") and W. Xxxxxx Xxxxx, residing at 0000 Xxxxxxx Xxxxx,
Xxx. 0000, Xxxxxxxxx, Xxxxxxxx 00000 (the "Executive"), is entered
into as of the date first stated above.
WHEREAS, the Board believes it is important to diminish the
inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened change
of control of the Company and to encourage the Executive's full
attention and dedication to the Company currently and in the event
of any threatened or pending change of control, and to provide the
Executive with compensation and benefits arrangements upon a change
of control which ensure that the compensation and benefits
expectations of the Executive will be satisfied; and
WHEREAS, the Board believes it to be in the best interests of
the Company to amend the existing Employment Agreement with the
Executive to achieve the aforementioned objectives;
NOW, THEREFORE, the following amendments are hereby made to
the Employment Agreement:
1. Section 2 of the Employment Agreement setting forth the
definition of "Change of Control" shall be amended by adding the
word "or" at the end of subparagraph (d) and by adding a new
subparagraph (e) at the end of the definition as follows:
(e) The acquisition by an individual, entity or
group of beneficial ownership of 20% or more of the then
outstanding securities of Group, including both voting
and non-voting securities, provided, however, that such
acquisition shall only constitute a change of control in
the event that such individual, entity or group also
obtains the power to elect by class vote, cumulative
voting or otherwise to appoint 20% or more of the total
number of directors to the Board of Directors of Group.
2. Section 4(b)(ii) of the Employment Agreement concerning
the payment of an annual bonus to the Executive shall be amended by
deleting the second sentence thereof, so that the Section shall
read in its entirety as follows:
(ii) Annual Bonus. In addition to Base Salary,
the Executive shall be awarded, for each fiscal year
during the Employment Period, an annual bonus as shall be
determined by the Board or its Compensation and Benefits
Committee in accordance with the executive incentive
compensation plan of Group approved on September 28, 1988
by the Group Board of Directors ("Incentive Plan") or
otherwise. The annual bonus under Section 4(b)(ii) shall
hereinafter be referred to as the "Annual Bonus".
3. Section 6(d)(2)(i)(B) of the Employment Agreement setting
forth the compensation and benefits obligations of the Company upon
the termination of the Executive's employment for Good Reason or
other than for Cause, Disability or death following a Change of
Control, shall be amended to read in its entirety as follows:
B. the product of (x) the Annual Bonus paid to the
Executive for the last full fiscal year ending during the
Employment Period or, if higher, the Annual Bonus paid to
the Executive during the last full fiscal year ending
during the Employment Period or, if higher, a construc-
tive annual bonus calculated to be equal to the bonus
that would have been payable to the Executive from the
Company for the last full fiscal year ending prior to the
Date of Termination (regardless of whether the Executive
was employed in an officer position for all or any part
of such fiscal year) as if Group had achieved the "target
level of performance" under the Incentive Plan set at the
level for the fiscal year immediately preceding the
Change of Control Date and assuming the Executive's
"target percentage" under the Incentive Plan equals such
target percentage assigned to the Executive immediately
preceding the Change of Control Date (the highest Annual
Bonus determined under this clause (x) shall hereinafter
be referred to as the "Recent Bonus") and (y) a fraction,
the numerator of which is the number of days in the
current fiscal year through the Date of Termination and
the denominator of which is 365; and
4. Section 6(d)(2)(i)(C) of the Employment Agreement setting
forth the compensation and benefits obligations of the Company upon
the termination of the Executive's employment for Good Reason or
other than for Cause, Disability or death following a Change of
Control, shall be amended to read in its entirety as follows:
C. the product of (x) three and (y) the sum of (i)
the Highest Base Salary and (ii) the Recent Bonus; and
5. Section 6(d)(2)(i) of the Employment Agreement setting
forth the compensation and benefits obligations of the Company upon
the termination of the Executive's employment for Good Reason or
other than for Cause, Disability or death following a Change of
Control, shall be amended to add a new subparagraph F to read in
its entirety as follows:
F. to the extent that the Executive has had his
Base Salary reduced pursuant to the salary reduction
program implemented for officers of the Company effective
January 1, 1992, then the Executive shall be entitled to
receive a lump-sum payment of the amount of salary
foregone from January 1, 1992 through the Date of
Termination and the Executive shall not be eligible to
receive any salary reduction payback through the profit
sharing plan established by the Company for such purpose;
provided, however, that if on the Date of Termination,
the Executive has already received payments from such
profit sharing plan, any such payments shall be offset
from the lump sum amount calculated under this subpara-
graph F; and
6. Section 6(d)(2)(ii) of the Employment Agreement setting
forth the compensation and benefits obligations of the Company upon
the termination of the Executive's employment for Good Reason or
other than for Cause, Disability or death following a Change of
Control, shall be amended to add a new paragraph, the section to
read in its entirety as follows:
(ii) (A) for the remainder of the Employment Period
or such longer period as any plan, program, practice or
policy may provide, the Company shall continue benefits
to the Executive and/or the Executive's family at least
equal to those which would have been provided to them in
accordance with the plans, programs, practices and
policies described in Section 4(b)(iii) (with respect to
any retirement plans), (iv) and (vi) of this Agreement if
the Executive's employment had not been terminated,
including health insurance and life insurance, in
accordance with the most favorable plans, practices,
programs or policies of the Company and its subsidiaries
in effect on or after the Effective Date or, if more
favorable to the Executive, as in effect at any time
thereafter with respect to other key employees and their
families and for purposes of eligibility for retiree
benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have
remained employed until the end of the Employment Period
and to have retired on the last day of such period; and
(B) at the expiration of the Employment Period, the
Company shall continue to provide the Executive with
health insurance and on-line travel privileges on the
same basis such benefits were provided to the Executive
on the last day of the Employment Period, with such
benefits to continue for the life of the Executive;
provided, however, that if the Executive becomes eligible
for health insurance through a subsequent employer, the
Company's provision of such benefits shall be secondary
to the benefit coverage of the subsequent employer.
7. Section 6 of the Employment Agreement setting forth the
compensation and benefits obligations of the Company upon the
termination of the Executive's employment, shall be amended to add
a new subparagraph (e) at the end of the section to read in its
entirety as follows:
(e) Salary Reduction Program. For purposes of
determining the Company's compensation and benefits
obligations under any of the foregoing subparagraphs (a)
through (d) of Section 6, any reduction in the Execu-
tive's Base Salary resulting from the officer salary
reduction program implemented on January 1, 1992 shall be
disregarded and the Executive's "salary of record" as in
effect on December 31, 1991 shall be deemed to be in
effect for the duration of the salary reduction program
or, if higher, the Executive's actual annual salary.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and, pursuant to the authorization of its Board of Directors, the
Company has caused this Amendment to be executed in its name and on
its behalf, all as of the day and year first written above.
EXECUTIVE
/s/W. Xxxxxx Xxxxx
______________________________________
W. Xxxxxx Xxxxx
USAIR, INC.
/s/Xxxx X. Xxxxxxxxx
______________________________________
Xxxx X. Xxxxxxxxx.
Chairman of the Board, President and CEO
Attest:
/s/Xxxxxxxx X. Xxxxx
______________________________
Secretary
AMENDMENT NUMBER TWO TO
EMPLOYMENT AGREEMENT
This Amendment Number Two, dated as of January 27, 1993, to
the Employment Agreement dated as of February 7, 1992, between
USAir, Inc., a Delaware corporation having a place of business at
Crystal Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(the "Company"), and W. Xxxxxx Xxxxx, residing at 0000 Xxxxxxx
Xxxxx, Xxx. 0000, Xxxxxxxxx, Xxxxxxxx 00000 (the "Executive"), as
subsequently amended (the "Employment Agreement"), is entered into
as of the date first stated above.
WHEREAS, USAir Group, Inc. ("USAir Group") has authorized,
executed and delivered an investment agreement dated as of January
21, 1993, as subsequently amended, (the "Investment Agreement")
with British Airways, Plc ("BA") pursuant to which BA will acquire
an equity ownership interest in USAir Group and will be entitled to
elect members of the Board of Directors of USAir Group (the "BA
Transaction"); and
WHEREAS, at the "Second Closing" of the BA Transaction as that
term is defined in the Investment Agreement, whereby BA's equity
ownership in USAir Group and representation on the USAir Group
Board of Directors will constitute a "Change of Control" as that
term is defined by the Employment Agreement prior to any modifica-
tions set forth in this Amendment Number Two; and
WHEREAS, the parties have agreed to amend the provisions of
the Employment Agreement in certain respects to become effective
upon the Second Closing of the BA Transaction;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties
agree as follows:
1. Section 2 of the Employment Agreement shall be amended in
its entirety to read as follows:
For purposes of this Agreement and with respect to
transactions occurring subsequent to the Second Closing
of the BA Transaction, a "Change of Control" shall mean:
(a) 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") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 20% or more
of either (i) the then outstanding shares of common stock of
the Company's parent, USAir Group, Inc. ("Group") (the
"Outstanding Group Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of Group
entitled to vote generally in the election of directors (the
"Outstanding Group Voting Securities"); provided, however,
that the following acquisitions shall not constitute a Change
of Control: (v) any acquisition by British Airways Plc or any
of its affiliates, (w) any acquisition directly from Group,
(x) any acquisition by Group or any of its subsidiaries, (y)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by Group or any of its subsid-
iaries or (z) any acquisition by any corporation with respect
to which, following such acquisition, more than 85% of,
respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then benefi-
cially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were beneficial
owners, respectively, of the Outstanding Group Common Stock
and Outstanding Group Voting Securities in substantially the
same proportions as their ownership, immediately prior to such
acquisition, of the Outstanding Group Common Stock and
Outstanding Group Voting Securities, as the case may be; or
(b) Individuals who, as of the date hereof,
constitute Group's Board of Directors (the "Incumbent
Board") cease for any reason to constitute at least a
majority of the Group Board of Directors; provided,
however, that any individual becoming a director subse-
quent to the date hereof whose election, or nomination
for election by Group's shareholders, was approved by
British Airways Plc, or any of its affiliates, or by a
vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent
Board; or
(c) Approval by the shareholders of Group of a
reorganization, merger or consolidation, in each case,
with respect to which all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Group Common Stock and
Outstanding Group Voting Securities immediately prior to such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, less than 85% of, respectively, the
then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such
reorganization, merger or consolidation in substantially the
same proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Group Common Stock and the Outstanding Group Voting Securi-
ties, as the case may be; provided, however, that a reorgani-
zation, merger or consolidation to which British Airways Plc
and/or any of its affiliates, and Group and/or any of its
affiliates, are the only parties shall not constitute a Change
of Control; or
(d) Approval by the shareholders of Group of (i) a
complete liquidation or dissolution of Group or (ii) the
sale or other disposition of all or substantially all of
the assets of Group, other than to British Airways Plc or
any of its affiliates, or to a corporation, with respect
to which following such sale or other disposition, more
than 85% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting
power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individu-
als and entities who were the beneficial owners, respec-
tively, of the Outstanding Group Common Stock and
Outstanding Group Voting Securities immediately prior to
such sale or other disposition, in substantially the same
proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Group
Common Stock and Outstanding Group Voting Securities, as
the case may be; or
(e) The acquisition of beneficial ownership of 20%
or more of the then outstanding securities of Group,
including both voting and non-voting securities, by an
individual, entity or group other than British Airways
Plc or any of its affiliates; provided, however, that
such acquisition shall only constitute a change of
control in the event that such individual, entity or
group also obtains the power to elect by class vote,
cumulative voting or otherwise to appoint 20% or more of
the total number of directors to the Board of Directors
of Group.
2. Section 4(a)(ii)(B) of the Agreement concerning the
Executive's position and duties during the Employment Period
following a Change of Control shall be amended by the addition of
the following sentence:
Notwithstanding the foregoing, the Executive and the Company
agree that following the Change of Control occasioned by the
Second Closing of the BA Transaction, the Company may transfer
the Executive's employment to any location which meets all of
the following criteria without such transfer constituting Good
Reason under Section 5(d)(iii) of the Agreement for the
Executive to terminate his employment:
(1) It is a location of a substantial activity for
which the Executive has responsibility.
(2) The location is either a corporate headquarters
or a major operations hub for the Company, BA or any of
their affiliates or principal business divisions.
(3) In the event the location is outside the United
States, the Company must provide the Executive a cost-of-
living adjustment in compensation so that the Executive
is in the same economic purchasing position that the
Executive was in at his or her location immediately prior
to the requested relocation.
(4) The Executive has not been transferred or
relocated during the prior twelve-month period.
3. Paragraph (d) of Section 5 of the Employment Agreement
setting forth the definition of "Good Reason" shall be amended by
adding after the last sentence of paragraph (d) the following
additional sentence:
Following the Change of Control occasioned by the Second
Closing of the BA Transaction, termination by the
Executive of his or her employment for any reason which
would not otherwise constitute Good Reason during the 30-
day period immediately following the first anniversary of
the Change of Control Date occasioned by the Second
Closing of the BA Transaction shall not be deemed a
termination for Good Reason under the terms of this
Employment Agreement or entitle the Executive to claim
benefits under Section 6(d)(2) of the Employment Agree-
ment.
4. Section 5(d)(ii) of the Agreement shall be amended by the
addition of the following sentences:
Following the Change of Control occasioned by the Second
Closing of the BA transaction, notwithstanding the
foregoing, the Executive and the Company agree that any
diminution in the plans, programs, policies and practices
described in Sections 4(b)(iii) - (viii) which is (a)
not, individually or in the aggregate with all other such
changes, a material change, (b) is a change applicable to
all officers of the Company eligible for such benefit,
and (c) is a change approved by a majority of the members
of the Board of Directors of the Company who are not
elected by BA, shall not constitute Good Reason under
Section 5(d)(ii) of the Agreement. For purposes of this
paragraph, a "material change" shall be defined as a
change which decreases the Company's cost or the present
value of the benefit to the Executive, as applicable, as
determined by the Company's actuaries (using for purposes
of determining present value Pension Benefit Guaranty
Corporation actuarial factors) of such plans, programs,
policies or practices, by more than 15% of the aggregate
of the Company's cost for such Executive of such plans,
programs, policies and practices for calendar 1993
(excluding statutorily required plans, programs, policies
and practices); provided, however, that (x) the Execu-
tive's cost for any individual plan, program, policy or
practice may not be increased by more than 15%, and (y)
no individual plan, program, policy or practice listed on
Appendix A attached hereto may be eliminated in its
entirety.
5. The Executive hereby acknowledges that the previously
approved change in the pension benefit program, including the 1991
freeze of accruals under the defined benefit and target benefit
pension plans and the 1993 implementation of the two new defined
contribution pension plans, does not constitute Good Reason for the
Executive to terminate his or her employment under the Agreement
following the Change of Control occasioned by the Second Closing of
the BA Transaction.
6. This Amendment Number Two to the Employment Agreement
shall be effective only upon the occurrence of the Second Closing
of the BA Transaction without the need for further action.
* * * *
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and, pursuant to the authorization of its Board of Directors, the
Company has caused this Amendment to be executed in its name and on
its behalf, all as of the day and year first written above.
EXECUTIVE
/s/W. Xxxxxx Xxxxx
_______________________________________
W. Xxxxxx Xxxxx
USAIR, INC.
/s/Xxxx X. Xxxxxxxxx
_______________________________________
Xxxx X. Xxxxxxxxx
Chairman of the Board, President and CEO
Attest:
/s/Xxxxxxxx X. Xxxxx
___________________________
Secretary
APPENDIX A
1. USAir Health Benefit Plan (medical and dental, including
alternative plan such as HMO's)
2. Split dollar life insurance plan
3. Long term disability plan
4. Short term disability plan (unlimited sick leave)
5. Retirement Plan for Certain Employees of USAir, Inc.
6. Target Benefit Plan for Certain Employees of USAir, Inc.
7. USAir, Inc. Supplementary Retirement Benefit Plan
8. Individual supplemental retirement agreements with certain
officers
9. USAir, Inc. 401(k) Savings Plan
10. USAir, Inc. Employee Savings Plan - 1993
11. USAir, Inc. Employee Pension Plan - 1993
12. 1984 Stock Option and Stock Appreciation Rights Plan of USAir
Group, Inc.
13. 1988 Stock Incentive Plan of USAir Group, Inc.
14. Employee travel policy
15. Officer severance policy
16. Post retirement medical and dental
17. Accidental Death & Dismemberment Insurance
18. 125 Premium Conversion Plan
19. Flexible Spending Plan - 1993
20. Management life insurance program
21. Officer's Supplemental Benefit Plan
22. Employee Assistance Program
23. Education Assistance Plan
24. Post retirement death benefit
