EXHIBIT 10.37
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AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered
into as of ___________ (the "Effective Date")* between United Air
Lines, Inc. ("UA") and UAL Corporation ("UAL," "UA" and "UAL"
sometimes collectively referred to as "United") and
__________________ residing at _____________________________
(sometimes referred to as "Executive").
WHEREAS, Executive has served and is presently
serving as an officer of UA (such position is hereinafter
referred to as the "Executive Position"), and may hold various
other positions and directorships with UA, UAL, or subsidiaries
or affiliates thereof;
WHEREAS, United and Executive have entered into a
letter agreement, dated as of October 6, 1998 (the "Initial
Agreement") governing the circumstances under which this
Agreement shall be entered into;
WHEREAS, a "United Breach" and a "Triggering Event"
(each as defined in the Initial Agreement) have occurred;
WHEREAS, United wishes to retain certain limited
services of Executive, and Executive wishes to provide said
services to United, in accordance with the terms and conditions
set forth herein; and
WHEREAS, Executive has agreed in this Agreement to
provide such services and to release United from certain
liabilities, as set forth in this Agreement, arising out of
Executive's ceasing to serve in the Executive Position;
NOW, THEREFORE, it is agreed by and between United
and Executive as follows:
1. Relinquishment of Title, Continued
Employment. Executive hereby ceases to serve in the Executive
Position, effective as of the Effective Date. Thereafter,
Executive will continue to be actively employed by United, but
Executive will perform services for United by being "on call",
including testifying on behalf of United, and subject to such
other assignments consistent with Executive's experience and
reasonably acceptable to Executive as may be reasonably requested
by either the person who is Executive's supervisor immediately
prior to the United Breach (the "Supervisor") or the Supervisor's
successor.
2. Time Period of Employment; Retirement. A.
United agrees to employ Executive
______________________________________________
*This date is to be the date on which the Triggering Event
occurs.
and Executive agrees to be employed by United on the basis stated
in Paragraph 1 from the Effective Date through the earlier of (i)
except as provided in Paragraph 2(B) below, 11:59 pm. on the
second anniversary of the Effective Date or (ii) the termination
of this Agreement and Executive's employment pursuant to
Paragraph 4 hereof (such period, the "Term").
B. If during the period commencing on the day
following the second anniversary of the Effective Date and ending
on the fifth anniversary of the Effective Date, Executive would
first qualify for UA Retired Employee Status, as defined in
United's Employee Policy Manual - Series 15 ("Retirement
Status"), clause (i) of Paragraph 2(A) above shall refer to the
last day of the first month that Executive so qualifies (such
date, the "Qualifying Date").
C. If Executive qualifies for Retirement
Status at the end of the Term, Executive shall be deemed to have
retired at the end of the Term for purposes of United's employee
benefit plans, including, but not limited to, pension plans,
retiree medical plans and retiree travel policies (collectively,
the "United Benefit Plans") in accordance with the terms of each
United Benefit Plan. Notwithstanding the foregoing, if the Term
ends pursuant to Paragraph 2(A)(ii) above, by virtue of the
operation of (1) Paragraph 4(A)(i), (ii) or (iv) below, Executive
shall not be deemed to have retired at the end of the term for
purposes of the United Benefit Plans; or (2) Paragraph 4(A)(iii)
below, Executive will be governed by United's illness leave of
absence policy and the benefits provided thereunder (other than
any provision that would provide Executive with a right to resume
employment with United) at the end of the Term, unless, if
Executive qualifies for Retirement Status, Executive elects to
retire in lieu of being governed by such policy. Notwithstanding
any other provision hereof, Executive's qualification for
retirement with respect to the Equity Plans and the Other Grants
(each as defined in Paragraph 3(C)(vii) hereof) shall be
determined pursuant to the provisions of Paragraph 3(C)(vii)
hereof.
3. Compensation and Benefits. A. Accrued
Benefits; Salary. (i) United will pay or provide to Executive
within 15 days following the Effective Date all amounts and
benefits which Executive would have received between the date of
the United Breach and the Effective Date had no United Breach
occurred, and which have not been previously paid or provided,
which amounts and benefits shall be determined without regard to
any United Breach.
(ii) United will pay Executive during
the Term a monthly salary equal to Executive's monthly salary
(the "Basic Salary") as in effect immediately prior to the
occurrence of the United Breach; provided, however, that if the
Term is extended pursuant to Paragraph 2(B) hereof, the salary
payable per month to Executive shall equal (a) the Basic Salary
multiplied by 24, divided by (b) the number of whole and partial
months between the Effective Date and the Qualifying Date. Such
payments will be made on the same schedule as salary payments are
made to actively employed officers of United from time to time,
currently the 15th and last day of each month. Any amounts will
be prorated for any partial month. All payments will be subject
to withholding for taxes and other purposes as required by
applicable law. During the Term, Executive will not be entitled
to any increase nor subject to any decrease in such salary
payments.
B. Incentive Compensation. Within 15 business
days following the Effective Date, United shall pay to Executive
a lump sum cash payment equal to Executive's target "incentive
opportunity" (as defined in UA's Incentive Compensation Plan as
in effect immediately prior to the United Breach, or any
comparable replacement plan (such plan or replacement plan, the
"Incentive Compensation Plan")), multiplied by a fraction, the
numerator of which is the number of days between January 1st of
the year in which the Effective Date occurs and the Effective
Date, and the denominator of which is 365. In addition, if
Executive's incentive opportunity with respect to the immediately
preceding fiscal year has not yet been paid or deferred as of the
Effective Date, Executive shall be paid Executive's incentive
opportunity, if any, that would have been paid with respect to
such fiscal year, calculated without regard to any United Breach
that would adversely affect the computation of such incentive
opportunity, which payment shall made to Executive at the time it
would otherwise have been paid pursuant to terms of the Incentive
Compensation Plan. United shall also pay Executive during the
Term a monthly payment (the "Monthly Incentive Payment") equal to
one-twelfth of Executive's target incentive opportunity (as
defined in the Incentive Compensation Plan, and calculated by
reference to the Basic Salary); provided, however, that if the
Term is extended pursuant to Paragraph 2(B) hereof, the amount
payable per month to Executive shall equal (i) the Monthly
Incentive Payment multiplied by 24, divided by (ii) the number of
whole and partial months between the Effective Date and the
Qualifying Date. All payments will be subject to withholding for
taxes and other purposes as required by applicable law. During
the Term, Executive will not be entitled to any increase nor
subject to any decrease in such incentive payments.
C. Benefits. Notwithstanding what may be
provided to other active employees of United from time to time,
the only benefits that Executive shall be entitled to during the
Term are as follows:
(i) Free and Reduced Rate Transportation.
United shall provide to Executive and his or her
eligibles free and reduced rate transportation of the
type granted to actively employed officers in
accordance with company regulations as revised from
time to time (the "Transportation Benefits"); provided,
however, that if the Transportation Benefits, taken as
a whole, are materially less favorable than United's
transportation benefits as in effect as of October 1,
1998 (the "Prior Transportation Benefits"), Executive
shall be provided with benefits under this Paragraph
3(C)(i) that are no less favorable to Executive than
the Prior Transportation Benefits.
(ii) United Air Lines, Inc. Management and
Salaried Employees' Retirement Plan. Executive shall
continue to participate in (A) the Retirement Plan and
(B) the United Air Lines, Inc. Supplemental Retirement
Plan in accordance with their terms (hereinafter
collectively the "Retirement Plans").
Executive shall be credited with 3 additional years of
participation under the Supplemental Retirement Plan.
(iii) Management Medical/Dental. Executive and
his or her eligible dependents shall continue to be
covered by the Management Medical/Dental Plan in the
same manner as other active management employees.
(iv) Group Life Insurance. Executive shall
continue to be covered by Group Life Insurance
including Contributory Life Insurance (if so covered),
on the same basis as other active management employees,
provided the appropriate payroll deductions are
authorized and in accordance with the terms of the
policies.
(v) Officer's Accidental Death and
Dismemberment Insurance/Split Dollar Life Insurance.
Executive's Officer's Accidental Death and
Dismemberment coverage will continue until the end of
the Term. If Executive is covered by the Officer's
Split Dollar Life Insurance as of the occurrence of the
United Breach, Executive will continue to be covered by
such insurance until the end of the Term. In such
event, the terms of Executive's coverage and option for
continuation of the Officer's Split Dollar Life
Insurance after the end of the Term will be explained
in a separate letter upon the end of the Term.
(vi) Disability Income Benefits. Executive will
continue to be covered by United's long term disability
plan (the "LTD Plan"), on the same basis as other
active management employees, provided that Executive is
qualified under the terms of the LTD Plan and Executive
makes such payments as may be required by the Plan
(vii) (a) Stock. Executive shall continue to
participate in United's equity incentive plans (the
"Equity Plans") with respect to grants made prior to
the Effective Date. Grants made prior to the Effective
Date other than pursuant to the Equity Plans (the
"Other Grants") shall also remain outstanding. Except
as otherwise provided in this Paragraph 3(C)(vii),
nothing in this Agreement will increase or diminish the
right of Executive to exercise any stock option that
becomes exercisable according to the terms of the
Equity Plans or the Other Grants, whether before or
after termination. Upon the end of the Term, Executive
shall be deemed to have retired, regardless of
Executive's age, for purposes only of the Equity Plans
and the Other Grants, so that Executive's unvested
options will continue to vest and Executive will be
able to exercise Executive's options until the fixed
expiration date thereof; provided, however, that if
Executive does not qualify for Retirement Status at the
end of the Term, then (A) if the Term ends pursuant to
Paragraph 2(A)(ii) above, by virtue of the operation of
Paragraph 4 (B)(ii) below, Executive shall not be
deemed to have retired for purposes of the Equity Plans
and the Other Grants; or (B) if Executive
takes a Competitive Position with a
Competitor (each as defined in Paragraph 4(B)(ii)
hereof) during the one-year period immediately
following the end of the Term (the date, if any, that
the Competitive Position is taken, the "Competition
Date"), Executive shall be deemed to be no longer
retired as of the Competition Date for purposes of the
Equity Plans and the Other Grants, so that all then-
unvested options held by Executive shall be forfeited
and all then-vested options held by Executive shall be
exercisable for the period following the Competition
Date provided in the relevant Equity Plan or Other
Grant (with the Competition Date deemed to be the date
of termination of Executive's employment for purposes
thereof) and, unless exercised, shall thereupon
terminate and be forfeited.
(b) Executive will not be eligible for
any grants made under the Equity Plans after the
Effective Date.
(viii) Other Benefits. Executive will continue to
be eligible to participate in the stock purchase plan,
401(k) plan, Flexible Spending Account and Employee
Stock Ownership Plan, including any plan or plans
adopted in substitution therefor, and including any New
Employee Stock Ownership Plan (as defined in the
Initial Agreement), and be eligible for payroll savings
bonds on the same basis as other active employees.
Executive will also be eligible to utilize the Credit
Union subject to its rules.
(ix) Vacation and Holidays. Executive agrees to
forego any unused vacation time existing as of the
Effective Date and no paid vacation or holiday time
will be accrued or taken after the Effective Date.
(x) Outplacement Benefits. For a period of 12
months following the end of the Term, Executive will be
provided with outplacement assistance appropriate to
the Executive Position held by Executive prior to the
United Breach.
D. Each of the benefits enumerated in
Paragraph 3(C) is subject to the practices, rules, and
regulations of United, as in effect from time to time.
E. (i) Notwithstanding any other
provisions of this Agreement, in the event that any payment or
benefit received or to be received by Executive hereunder, when
taken together with any payment or benefits received or to be
received pursuant to the terms of any other plan, arrangement or
agreement with United, or any affiliate thereof (all such
payments and benefits being hereinafter called "Total Payments")
would be subject (in whole or part), to any excise tax (the
"Excise Tax") imposed under section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code"), then, the payments under
Paragraph 3(A) shall first be reduced, the payments under
Paragraph 3(B) shall thereafter be reduced and individual
benefits under Paragraph 3(C) shall thereafter be eliminated, to
the extent necessary so that no portion of the
Total Payments is subject to the Excise Tax, but only if (A) the
net amount of such Total Payments, as so reduced (and after
subtracting the net amount of federal, state and local income
taxes on such reduced Total Payments) is greater than or equal to
(B) the net amount of such Total Payments without such reduction
(but after subtracting the net amount of federal, state and local
income taxes on such Total Payments and the amount of Excise Tax
to which Executive would be subject in respect of such unreduced
Total Payments); provided, however, that Executive may elect to
have individual benefits under Paragraph 3(C) eliminated prior to
any reduction of the cash payments under Paragraphs 3(A) and
3(B).
(ii) For purposes of determining
whether and the extent to which the Total Payments will be
subject to the Excise Tax, (i) no portion of the Total Payments
the receipt or enjoyment of which Executive shall have waived at
such time and in such manner as not to constitute a "payment"
within the meaning of section 280G(b) of the Code shall be taken
into account, (ii) no portion of the Total Payments shall be
taken into account which, in the opinion of tax counsel ("Tax
Counsel") reasonably acceptable to Executive and selected by the
accounting firm (the "Auditor") which was, immediately prior to
the United Breach, United's independent auditor, does not
constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code (including by reason of section
280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no
portion of such Total Payments shall be taken into account which,
in the opinion of Tax Counsel, constitutes reasonable
compensation for services actually rendered, within the meaning
of section 280G(b)(4)(B) of the Code, in excess of the Base
Amount (as defined in section 280G(b)(3) of the Code) allocable
to such reasonable compensation, and (iii) the value of any
non-cash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Auditor in
accordance with the principles of sections 280G(d)(3) and (4) of
the Code.
4. Termination of Employment Under Agreement.
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A. Non-Election of Executive. Executive's
employment under this Agreement shall terminate and Executive will no
longer have the status of an active employee of United and will
no longer be entitled to any of the benefits of this Agreement
(including the entitlement to the payment and benefits described in
Paragraph 3(C), other than those required by law or otherwise
vested), on the happening of the earliest of the following
events:
(i) Executive's death;
(ii) Any material breach by Executive of
Paragraph 6 or 9 hereof or the failure by Executive to
provide notice to United pursuant to Paragraph
4(B)(ii) hereof;
(iii) Executive's qualification for long term
disability benefits under the terms of any long term
disability plan or program of United, regardless of
whether Executive is enrolled in any such plan or
program; or
(iv) Executive's termination for Cause (as defined below).
For purposes hereof, "Cause" shall mean (a) the willful and
continued failure by Executive to substantially perform
Executive's duties with United, including the duties set forth
under Paragraph 7 hereof (other than any such failure resulting
from Executive's incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered
to Executive by the Board of Directors of UAL (the "Board"),
which demand specifically identifies the manner in which the
Board believes that Executive has not substantially performed
Executive's duties, (b) the willful engaging by Executive in
conduct, including any conduct that is a violation of Executive's
duties set forth under Paragraph 8 hereof, which is demonstrably
and materially injurious to United or its subsidiaries,
monetarily or otherwise or (c) Executive's conviction for the
commission of a felony. For purposes of clauses (a) and (b) of
this definition, no act, or failure to act, on Executive's part
shall be deemed "willful" unless done, or omitted to be done, by
Executive not in good faith and without reasonable belief that
Executive's act, or failure to act, was in the best interest of
United.
B. Election of Executive. (i) During the
Term, if Executive elects to terminate his or her employment for
any reason, Executive will receive, in lieu of any further
payments under Paragraphs 3(A)(ii) and 3(B) above (such payments,
the "Monthly Payments"), a one time lump sum payment (subject to
withholding for taxes and other purposes as required by
applicable laws) in an amount equal to the sum of the remaining
Monthly Payments payable under this Agreement, and will no longer
be entitled to any benefits under Paragraph 3(C) (other than
benefits required by law or otherwise vested). Before
Executive's election to terminate under this paragraph can become
effective, Executive must have provided United seven (7) days'
written notice of his or her election by registered mail
addressed to the General Counsel of United at its principal World
Headquarters offices. Executive's termination of employment will
be as of the seventh (7th) day after receipt by United of such
notice, at which time he or she will no longer have the status of
an active employee of United (including the entitlement to
benefits described in Paragraph 3(C), other than benefits
required by law or otherwise vested).
(ii) Notwithstanding the foregoing provisions
of this Paragraph 4(B), during the Term, if Executive elects to
terminate his or her employment by taking a Competitive Position
(as defined below) with a Competitor (as defined below):
(A) Upon agreeing to such employment (including
for purposes of this Paragraph 4(B)(ii)(A) any employment which
commences during the one-year period immediately following the
end of the Term, if Executive does not qualify for Retirement
Status at the end of the Term), Executive must immediately so
notify United in writing by registered mail addressed to the
General Counsel of United at its principal World Headquarters
offices;
(B) Executive will be deemed to have elected to
terminate his or her employment under this Agreement (including
the entitlement to benefits described in Paragraph 3(C))
effective as of the day Executive becomes employed by such
Competitor; and
(C) Executive will be entitled to no further
compensation after such effective date.
For purposes of this Agreement, (1) "Competitor" means any
airline or air carrier or any company affiliated, directly or
indirectly, with another airline or air carrier and (2)
"Competitive Position" means becoming employed by, become a
member of the board of directors of, a consultant to, or to
otherwise provide services of any nature to a Competitor directly
or indirectly.
C. Survival. Notwithstanding any termination
of Executive's employment under this Agreement, Executive shall
continue to be bound by (1) the provisions of Paragraphs 6
through 16 hereof, (2) the proviso to the final sentence of
Paragraph 3(C)(vii)(a) and (3) the provisions of Paragraph
4(B)(ii)(A) hereof.
5. Regulations. During his or her
employment, Executive will be governed by applicable United
regulations, as in effect from time to time, to the extent that
such regulations are consistent with Executive's status as an
on-call employee.
6. Confidentiality.
A. For purposes of this Agreement
"Confidential Information" shall mean and include, but not be
limited to, the kinds of services provided or proposed to be
provided by United to customers, the manner in which such
services are performed or offered to be performed, information
concerning United's fleet plan, cost structure, strategic plan,
labor strategy, information concerning the creation, acquisition
or disposition of products and services, personnel information,
and other trade secrets and confidential or proprietary
information concerning United's business, but shall not include
information which (I) is or becomes generally available to the
public other than as a result of a disclosure by Executive, (II)
was available to Executive on a non-confidential basis prior to
its disclosure by UAL or UA, or (III) becomes available to
Executive on a non-confidential basis from a person other than
UAL, UA or their officers, directors, employees or agents who is
not otherwise bound by any confidentiality obligations with
respect to the information provided to Executive (the
"Confidential Information").
B. (i) Executive acknowledges that: (a)
United's business is intensely competitive and that Executive's
employment by United has required and during the Term may
continue to require that Executive have access to and knowledge
of Confidential Information of United, (b) the direct or indirect
disclosure of any Confidential Information would place United at
a disadvantage and would do damage, monetary or otherwise, to
United's business, and (c) the engaging by Executive in any of
the activities prohibited by this Paragraph 6 may constitute
improper appropriation or use of such Confidential Information.
Executive expressly acknowledges the trade secret status of the
Confidential Information and that the Confidential Information
constitutes a protectible business interest of United.
(ii) Whether directly or indirectly, individually,
as a director, stockholder, owner, partner, employee, principal,
or agent of any business, or in any other capacity, during the
Term of this Agreement and for the three (3) year period
thereafter, Executive shall not make known, disclose, furnish,
make available or utilize any of the Confidential Information,
other than in the proper performance of the duties contemplated
under this Agreement. Executive shall return any tangible
Confidential Information, including photocopies, extracts and
summaries thereof, or any such information stored electronically
on tapes, computer disks, or in any other manner that Executive
has in his or her possession (a) on the Effective Date of this
Agreement, (b) at the end of the Term, and (c) at such time as
United requests Executive to do so.
(iii) Executive acknowledges and agrees that due to
the confidential and proprietary nature of the Confidential
Information he or she possesses, a breach or threatened breach by
him or her of any of the provisions contained in this Paragraph 6
will cause United irreparable injury. Therefore, in addition to
any other rights or remedies, Executive agrees that United shall
be entitled to a temporary, preliminary, and permanent injunction
enjoining or restraining Executive from any such violation or
threatened violation, without the necessity of proving the
inadequacy of monetary damages or the posting of any bond or
security. Executive consents to jurisdiction for such
enforcement in any state or federal court in the State of
Illinois.
(iv) Executive further acknowledges and agrees that
due to the uniqueness of his or her services and confidential
nature of the Confidential Information he or she possesses, the
covenants set forth herein are reasonable and necessary for the
protection of the business and goodwill of United.
Executive understands that it is United's intent to
have this promise of confidentiality enforced to its fullest
extent. Accordingly, Executive and United agree that, if any
portion of this promise of confidentiality is unenforceable, the
court should still construe and enforce this promise of
confidentiality to the fullest extent permitted by law.
C. Executive agrees to keep the terms of and
circumstances surrounding this Agreement and of his or her
working arrangement, as defined herein, confidential except that
the source and amount of his or her income may be revealed as
necessary for tax, loan purposes and the like.
7. Non-Disparagement. A. Executive agrees
not to make, or cause to be made, any statement, observation or
opinion, or communicate any information (whether oral or written,
directly or indirectly) that (a) accuses or implies that United
and/or any of its parents, subsidiaries and affiliates, together
with their respective present or former officers, directors,
partners, shareholders, employees and agents, and each of their
predecessors, successors and assigns, engaged in any wrongful,
unlawful or improper conduct, whether relating to Executive's
employment (or the termination thereof), the business or
operations of United, or otherwise; or (b) disparages, im-
pugns or in any way reflects adversely upon the business or
reputation of United and/or any of its parents, subsidiaries and
affiliates, together with their respective present or former
officers, directors, partners, shareholders, employees and
agents, and each of their predecessors, successors and assigns.
B. United agrees not to willfully authorize
any statement, observation or opinion (whether oral or written,
direct or indirect) that is materially injurious to Executive and
that (a) accuses or implies that Executive engaged in any
wrongful, unlawful or improper conduct relating to Executive's
employment with United or (b) disparages, impugns or in any way
reflects adversely upon the reputation of Executive.
C. Nothing herein shall be deemed to preclude
Executive or United from providing truthful testimony or
information pursuant to subpoena, court order or similar legal
process.
8. Non-Solicitation of Employees. Executive
agrees that Executive will not, for a period of two years
following the Effective Date, directly or indirectly, for the
benefit of any Competitor (as defined in Paragraph 4(B) hereof)
of United, solicit the employment or services of, hire, or assist
in the hiring of any person eligible for the Incentive
Compensation Plan.
9. Assent and Release. A. In consideration
for the payments and benefits provided in this Agreement,
Executive hereby voluntarily, knowingly, willingly, irrevocably,
and unconditionally releases UA and UAL together with their
respective parents, subsidiaries and affiliates, and each of
their respective officers, directors, employees, representatives,
attorneys and agents, and each of their respective predecessors,
successors and assigns (collectively, the "Releasees") from any
and all charges, complaints, claims, liabilities, obligations,
promises, agreements, causes of action, rights, costs, losses,
debts, and expenses of any nature whatsoever, known or unknown,
which against them Executive or his or her successors or assigns
ever had, now have or hereafter can, shall or may have (either
directly, indirectly, derivatively or in any other representative
capacity) by reason of any matter, fact or cause whatsoever
arising from the beginning of time to the date of this Agreement,
including without limitation all claims arising under Title VII
of the Civil Rights Act of 1991, the federal Age Discrimination
in Employment Act of 1967 ("ADEA"), the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, the Family and Medical Leave Act of 1993, the Equal
Pay Act of 1963, each as amended; and all other federal, state or
local laws, rules, regulations, judicial decisions or public
policies now or hereafter recognized, including but not limited
to the California Fair Employment and Housing Act, the Colorado
anti-discrimination laws, the Illinois Human Rights Act, the New
Jersey Law Against Discrimination and the New York City and State
Human Rights Law, each as amended. This release by Executive of
the Releasees also includes, without limitation, all claims
arising under each employee pension, employee welfare, and
executive compensation plan of United now in effect or hereafter
adopted, except for any benefits to be provided to Executive
under this Agreement or in the normal course of Executive's
employment through the Effective Date. It is agreed that this
paragraph shall survive termination of the Agreement. Nothing in
this Paragraph 9 shall affect or impair any right that Executive
has to either (1) indemnification pursuant to United's bylaws or
applicable law or (2) any vested benefit under United's employee
benefit plans.
B. Executive expressly acknowledges and
agrees that, by entering into this Agreement, Executive is
waiving any and all rights or claims that he or she may have
arising under the ADEA, as amended, which have arisen on or
before the date of execution of this Agreement. Executive
further expressly acknowledges and agrees that:
(i) In return for this Agreement, Executive
will receive compensation beyond that which he or she
was already entitled to receive before entering into
this Agreement;
(ii) Executive has been advised by United to
consult with an attorney before signing this Agreement;
(iii) Executive was given a copy of this
Agreement on or before October 15, 1998, and was given
another copy of this Agreement on ________________.*
Executive has been informed that Executive has not less
than forty-five (45) days from ____________** within
which to consider the Agreement and, if Executive
considers this Agreement for fewer than 45 days, then
Executive agrees that he or she has had a reasonable
period of time to consider the Agreement; and
(iv) Executive was informed that Executive had
seven (7) days following the date of execution of the
Agreement in which to revoke the Agreement. After
seven (7) days this Agreement will become effective,
enforceable and irrevocable unless written revocation
is received by the undersigned from Executive on or
before the close of business on the seventh (7th) day
after Executive executed this Agreement. If Executive
revokes this Agreement it shall not be effective or
enforceable and Executive will not receive the
compensation or benefits described in this Agreement.
C. Waiver of Unknown Claims. It is the
intention of Executive and United in executing this
Agreement that the same shall be effective as a bar to
each and every claim, demand and cause of action
hereinabove specified. In furtherance of this
intention, Executive hereby expressly waives any and
all rights and benefits conferred upon Executive by the
___________________________________
*This date is to be the date on which Executive is given another
copy of the Agreement following the occurrence of a Triggering
Event.
**This date is to be the date on which Executive is given another
copy of the Agreement following the occurrence of a Triggering
Event.
provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE, to the
extent applicable to Executive, and expressly consents that this
Agreement shall be given full force and effect according to each
and all of its express terms and provisions, including as well
those related to unknown and unsuspected claims, demands and
causes of action, if any, as well as those relating to any other
claims, demands and causes of action hereinabove specified.
SECTION 1542 provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
Executive acknowledges that Executive may hereafter
discover claims or facts in addition to or different from those
which Executive now knows or believes to exist with respect to
the subject matter of this Agreement and which, if known or
suspected at the time of executing this Agreement, may have
materially affected this settlement.
10. Non-Assignability, Assignment in the Event
of Acquisition or Merger. This Agreement and the benefits
hereunder are not assignable or transferable by Executive; the
rights and obligations of United under this Agreement will
automatically be deemed to be assigned by United to any
corporation or entity into which United may be merged or
consolidate.
11. Applicable Law. This Agreement shall be
construed in accordance with the laws of the State of Illinois,
and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with, and governed by the
laws of, the State of Illinois, without regard to principles of
conflict of laws.
12. Paragraph Reference. Any reference to
paragraphs or subparagraphs shall be references to paragraphs or
subparagraphs of this Agreement unless expressly stated
otherwise.
13. Severability. If any provision of this
Agreement or the application thereof is held invalid, the
invalidity shall not affect the other provisions or applications
of this Agreement which can be given effect without the invalid
provisions or application in accordance with the essential intent
and purpose of this Agreement, and to this end the provisions of
this Agreement are declared to be severable. Moreover, if any
one or more of the provisions contained in this Agreement is held
to be excessively broad as to duration, scope, activity or
subject, such provisions will be construed by limiting and
reducing them so as to be enforceable to the maximum extent
compatible with applicable law and with the essential intent and
purpose of this Agreement.
14. Supersedes Prior Agreement(s). This Agreement and the
Initial Agreement supersede and void any prior oral or written
agreement relating in any way to Executive's employment with UA or
UAL which may have been entered into between the parties hereto.
Any change to this Agreement or the Initial Agreement after its
respective effective date must be in writing and must be executed by
UA, UAL and Executive.
15. No Mitigation. United agrees that
Executive is not required to seek other employment or to attempt
in any way to reduce any amounts payable to Executive by United
pursuant to this Agreement. Furthermore, the amount of any
payment or benefit provided for in this Agreement shall not be
reduced by any compensation earned by Executive as the result of
employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by Executive to United, or
otherwise.
16. Legal Fees, Arbitration. United shall pay
to Executive all reasonable legal fees and expenses incurred by
Executive in disputing in good faith any issue hereunder or under
the Initial Agreement or in seeking in good faith to obtain or
enforce any benefit or right provided hereunder or under the
Initial Agreement. Payments requested by Executive pursuant to
this Paragraph 16 shall be made, without exception, within five
(5) business days after delivery of Executive's written requests
for payment accompanied with such evidence of fees and expenses
incurred as United reasonably may require. Any dispute or
controversy arising under or in connection with this Agreement or
the Initial Agreement shall be settled exclusively by arbitration
in Chicago, Illinois, in accordance with the National Rules for
the Resolution of Employment Disputes of the American Arbitration
Association then in effect. Executive consents to arbitration in
Chicago, Illinois, as set forth above, agrees that judgment may
be entered in the courts of the State of Illinois on any such
arbitration award, consents to the jurisdiction of the courts of
Illinois, both state and federal, for the enforcement of any such
arbitration award and agrees not to disturb such choice of forum.
Notwithstanding the above, Executive further agrees that United
may seek temporary, preliminary or permanent injunctive relief to
enforce the provisions contained in Paragraph 6, without first
proceeding to arbitration.
United and Executive, having read and
understood this Agreement and, having consulted with others as
appropriate, hereby agree to be bound by its terms.
IN WITNESS WHEREOF, the parties have
executed this Agreement effective as of _________ at the World
Headquarters of United Air Lines, Inc., 0000 Xxxx Xxxxxxxxx Xxxx,
Xxx Xxxxx Xxx., Xxxxxxxx 00000.
UAL CORPORATION AND EXECUTIVE
UNITED AIR LINES, INC.
By: ___________________________ ________________________
Name:
Title: _______________________
(Please print name)
(Form of the Initial Agreement)
UAL CORPORATION
UNITED AIR LINES, INC.
October 6, 2000
Dear :
This letter sets forth the commitment of United Air Lines, Inc.
("UA") and UAL Corporation ("UAL," UA and UAL sometimes
collectively referred to as "United") to you as follows:
1. Agreement.
---------
(a) In the event that (i) a United Breach (as defined
below) occurs on or prior to the later of (A) October 6, 2000 and
(B) the date which is 18 months after the date on which the
successor to the Chief Executive Officer on the date hereof first
takes office, excluding appointments designated as "interim" and
(ii) a Triggering Event (as defined below) occurs, you will have
the right to enter into an agreement with United (the
"Agreement") in the form annexed hereto as Exhibit A. If you
choose to enter into the Agreement, United shall be obligated to
enter into the Agreement as soon as practicable thereafter.
(b) The Agreement shall govern the terms and
conditions of your employment during the Term (as defined in the
Agreement). You should note that, by entering into the Agreement,
you will be releasing United, its affiliates and its
representatives from claims relating to your employment. Please
review Paragraph 7 of the Agreement at your earliest convenience,
and again at the time of any Triggering Event, particularly
subparagraph 7(B).
2. (a) Occurrence of Triggering Event. A "Triggering
Event" shall be deemed to have occurred upon the receipt by the
General Counsel of United of written notice from you, as
described in Paragraph 2(b) below (the "Notice"), of the
occurrence, without your express written consent, of a United
Breach. Notwithstanding any other provision hereof, a Triggering
Event shall not be deemed to have occurred if such United Breach
is corrected by United within 30 days following the delivery of
the Notice.
(b) Notice. The Notice must (i) be sent to the General
Counsel of United at the World Headquarters of United Air Lines,
Inc., 0000 Xxxx Xxxxxxxxx Xxxx, Xxx Xxxxx Xxx., Xxxxxxxx 00000,
(ii) be given within 90 days of your becoming aware of the United
Breach and (iii) set forth in reasonable detail the facts and
circumstances allegedly constituting the United Breach.
(c) United Breach. Except as otherwise provided in
this Paragraph 2, a United Breach shall constitute any of the
following acts by United, or failures by United to act:
(i) the assignment to you of any duties
inconsistent with your status as an officer of United
or a substantial adverse alteration in the nature or
status of your responsibilities from those in effect as
of the date hereof;
(ii) a reduction by United in your annual
base salary as in effect on the date hereof or as the
same may be increased from time to time;
(iii) the relocation of your principal place
of employment to a location more than 35 miles from
your principal place of employment immediately prior to
such relocation, except for required travel on United's
business to an extent substantially consistent with
your present business travel obligations;
(iv) the failure by United to continue in
effect any compensation plan in which you participate
immediately prior to such failure, which compensation
plan is material to your total compensation, including
but not limited to UAL's 1981 Incentive Stock Plan and
UA's Incentive Compensation Plan, or any comparable
replacement plans adopted prior to such failure, unless
an equitable arrangement (embodied in an ongoing
replacement or alternative plan) has been made with
respect to such plan;
(v) the failure by United to pay you an
amount under an annual incentive compensation plan in
respect of a given year that is at least substantially
the amount applicable to your award as determined in
accordance with the formula set forth in such plan, but
calculated as if such formula contained no modification
for individual performance (it being understood that
such formula will include corporate performance
objectives established by the Compensation Committee or
the Compensation Administration Committee, as
applicable, of the Board of Directors of UAL (the
"Board") in its discretion), unless such failure is
attributable to a normal adjustment resulting from an
unfavorable written assessment of your performance
under a formal performance evaluation program
administered by management and applicable to all
participants in the annual incentive compensation plan
on a substantially similar basis (such assessment, the
"Written Performance Assessment");
(vi) the failure by United to continue your
participation in a plan described in subparagraph
2(c)(iv) hereof on at least as favorable a basis, in
terms of the amount of benefits (other than as
described in subparagraph 2(c)(v) hereof), timing of
benefit payments or designated level of participation
(including, but not limited to, your incentive
opportunity) for your position (e.g., Vice President,
Senior Vice President) as of the date of this letter
agreement, or as such designated level may be increased
from time to time thereafter (including by reason of
any promotion you may receive), as existed immediately
prior to such failure; provided, however, that none of
the following shall constitute a United Breach:
(A) with respect to a given year,
either (1) your incentive opportunity under an
annual incentive compensation plan or (2) the
modified Black-Scholes value, as determined in
accordance with past practice (the "Expected
Value") of your annual grant of options is less
than your then most recent incentive opportunity
or the Expected Value of the then most recent
annual grant of options made to you, as the case
may be (excluding, however, in determining the
Expected Value of the then most recent option
grant, any reduction in such Expected Value that
was attributable to a Normal Adjustment (as
defined below)), so long as the value of such
shortfall is fully compensated for by an increase
in base salary, incentive opportunity or Expected
Value of options, or by another form of equity or
compensation (it being understood that the value
of such other equity or compensation shall be
preserved in the following year in a manner
consistent with the treatment of incentive
opportunity and options in this subparagraph (A));
or
(B) with respect to a given year, the
Expected Value of your annual grant of options is
less than the Expected Value of the then most
recent annual grant of options made to you
(excluding, however, in determining the Expected
Value of the then most recent option grant, any
reduction in such Expected Value that was
attributable to a Normal Adjustment (as defined
above)), and such shortfall is a consequence of a
normal adjustment resulting from an unfavorable
Written Performance Assessment (such adjustment, a
"Normal Adjustment");
(vii) the failure by United to continue to
provide you with benefits substantially similar to
those enjoyed by you under any of United's pension,
savings, life insurance, medical, health and accident,
or disability plans in which you were participating
immediately prior to such failure, the taking of any
other action by United which would directly or
indirectly materially reduce any of such benefits or
deprive you of any material fringe benefit (including,
but not limited to transportation benefits) enjoyed by
you at the time of such failure, or the failure by
United to provide you with the number of paid vacation
days to which you are entitled on the basis of years of
service with United in accordance with United's normal
vacation policy in effect at the time of such failure;
provided, however, that if any alteration is made to
United's benefit plans and policies (other than with
respect to plans which apply only to officers of
United), and in connection with the implementation of
such alteration you are treated at least as favorably
as other active management employees generally, such
alteration shall not constitute a United Breach; or
(viii) any purported termination of your
employment by United without Cause (as defined below).
Notwithstanding any other provision hereof:
(1) if (A) any reduction in your salary,
compensation or benefits is implemented in connection
with a broad-based employee ownership initiative in
which you are a participant that is approved by the
Board in accordance with the standards set forth in the
UAL Restated Certificate of Incorporation (any such
initiative, the "New Employee Stock Ownership Plan")
and (B) in connection with the implementation of such
reduction and such New Employee Stock Ownership Plan,
you are treated at least as favorably as other
management employees, such reduction shall not
constitute a United Breach; and
(2) if an act or failure to act which would
otherwise constitute a United Breach pursuant to any of
Paragraphs 2(c)(i) through (vii) hereof arises in
connection with your incapacity due to physical or
mental illness, it shall not constitute a United Breach
so long as United complies with its programs and
policies available to you due to such illness (but any
such act or failure to act which arises or continues
following your return to employment following such
incapacity shall constitute a United Breach).
For purposes of subparagraphs 2(c)(v) and (vi) above,
amounts deferred at your election shall be deemed paid at the
time that they would have been paid to you but for your deferral
election.
3. Termination for Cause. This letter shall not affect
the right of United to terminate your employment for Cause (as
defined below) on or prior to the occurrence of a Triggering
Event. If your employment is terminated for Cause on or prior to
the occurrence of a Triggering Event, United shall be under no
obligation to enter into the Agreement. For purposes hereof,
"Cause" shall mean (a) the willful and continued failure by you
to substantialIy perform your duties with United (other than any
such failure resulting from your incapacity due to physical or
mental illness) after a written demand for substantial
performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes
that you have not substantially performed your duties, (b) the
willful engaging by you in conduct which is demonstrably and
materially injurious to United or its subsidiaries, monetarily or
otherwise or (c) your conviction for the commission of a felony.
For purposes of clause (a) and (b)
of this definition, no act, or failure to act, on your part shall
be deemed "willful" unless done, or omitted to be done, by you
not in good faith and without reasonable belief that your act, or
failure to act, was in the best interest of United.
4. Dispute Resolution: Legal Fees. Any dispute under
this letter agreement shall be resolved, and legal fees
reimbursed, in the manner set forth in Paragraphs 15 and 16 of
the Agreement, whether or not the Agreement has become effective.
5. Non-Assignability: Assignment in the Event of
Acquisition or Merger. This letter agreement and the benefits
hereunder are not assignable or transferable by you; the rights
and obligations of United under this letter agreement will
automatically be deemed to be assigned by United to any
corporation or entity into which United may be merged or
consolidate.
6. Applicable Law. This letter agreement shall be
construed in accordance with the laws of the State of Illinois,
and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with, and governed by the
laws of, the State of Illinois, without regard to principles of
conflict of laws.
7. Amendment. Any change to this letter agreement after
its effective date must be in writing and must be executed by UA,
UAL and Executive.
In order to confirm your receipt and acceptance of the terms of
this letter agreement, please execute the enclosed copy of this
letter agreement and return it to Xxxxxxxxx X. Xxxxx, United's
General Counsel, at the World Headquarters of United Air Lines,
Inc., 0000 Xxxx Xxxxxxxxx Xxxx, Xxx Xxxxx Xxx., Xxxxxxxx 00000.
Very truly yours,
UAL Corporation and
United Air Lines, Inc.
By:
ACCEPTED AND AGREED TO
__________________________
Executive
__________________________
(Please print name)
