EXHIBIT 10.19
EMPLOYMENT AGREEMENT
Agreement dated as of June 29, 1989, between USAir, Inc., a
Delaware corporation, having a place of business at Crystal Park
Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (the "Company") and
Xxxxx X. Xxxxx, residing at 0000 Xxxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 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 Executive 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 relationships), 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
lectures, 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 hereinabove 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 subsidiaries (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 transportation, 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 practices 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 Execu-
tive'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 (including
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 Executive;
(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), respectively, 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 determination 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 Termination 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 thereon) and not yet paid by the Company, and any
accrued 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 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.
(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 Executive's
Highest Base Salary through the Date of Termination; 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 requested 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 representa-
tion 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 proceedings
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 jurisdic-
tion and in one or more appellate 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 Executive
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 determination 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:
0000 Xxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 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/Xxxxx X. Xxxxx
______________________________________
Xxxxx X. Xxxxx
Senior Vice President and
General Counsel
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 June 29, 1989, between USAir,
Inc., a Delaware corporation having a place of business at Crystal
Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Company") and Xxxxx X. Xxxxx, residing at 0000 Xxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 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 constructive 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
subparagraph 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 Executive'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/Xxxxx X. Xxxxx
_______________________________________
Xxxxx X. 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 June 29, 1989, between USAir,
Inc., a Delaware corporation having a place of business at Crystal
Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Company"), and Xxxxx X. Xxxxx, residing at 0000 Xxxxxx Xxxx
Xxxxxxx, X.X., Xxxxxxxxxx, X.X. 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 transac-
tions 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 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 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
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 Securities, as the case may be; provided,
however, that a reorganization, 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 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; 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 Agreement.
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/Xxxxx X. Xxxxx
________________________________________
Xxxxx X. 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
February 6, 1996
Xx. Xxxxx X. Xxxxx
Executive Vice President and General Counsel
USAir, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xxx:
This letter sets forth the terms of our agreement concerning
the severance of your employment with USAir. I have requested and
you have agreed to provide assistance and advice to ensure a smooth
transition of your responsibilities to your successor. In
consideration for your services during the transition period, for
your past services to the company, and the mutual promises herein
contained, USAir will provide the following severance benefits:
1. You will resign from your position as Executive Vice
President, General Counsel and Secretary of USAir Group, Inc. and
Executive Vice President and General Counsel of USAir, Inc. to
become effective February 5, 1996, however, you will remain an
employee of USAir, Inc. through April 4, 1996. During such period
as an employee of USAir, Inc. you will provide advice and
assistance to your successor at such times as agreed to between you
and your successor.
2. During the period of employment from February 6 through
April 4, 1996, you will continue to receive your current base
salary and all other compensation and benefits applicable to your
current position as a senior officer, including but not limited to
payment of the incentive award for the 1995 fiscal year under the
Executive Incentive Compensation Plan of USAir Group, Inc. at 85%
of the 35% target level using your 1995 base salary.
3. You agree to retire from your employment with USAir, Inc.
effective April 4, 1996. This retirement date will be the "Date of
Termination" for all purposes of the Employment Agreement between
you and USAir, Inc. dated June 29, 1989, as amended ("Employment
Agreement").
1
Xx. Xxxxx X. Xxxxx
February 6, 1996
4. USAir acknowledges that the termination of your employment
entitles you to severance payments under Section 6(d)(1) of the
Employment Agreement and all notice requirements for you or USAir
thereunder are hereby waived. USAir, Inc. agrees to pay to you all
severance compensation and benefits set forth in Section 6(d)(1) of
the Employment Agreement providing for the obligations of the
company upon termination of the executive's employment prior to a
change of control. The compensation and benefits required pursuant
to the Employment Agreement are set forth in Attachment A.
5. As soon as practical after your retirement on April 4,
1996, USAir will issue you a check to pay back the salary reduction
you incurred in 1992 and 1993 in accordance with USAir's normal
repayment procedures. Your total payback will be $49,846 less any
Employee Profit Sharing Plan payment you receive prior to the date
of your retirement.
6. Assuming that you commence your retirement benefits
immediately upon your retirement on April 4, 1996 (i.e., benefit
commencement on May 1, 1996), you will be eligible for all retiree
benefits provided to employees and senior officers of the company,
as they may be amended from time to time, including but not limited
to health plan coverage, on-line space positive travel privileges,
USAir Club privileges and split-dollar life insurance continuation.
7. You agree not to take another position for a period of two
years after the Date of Termination in which you could make use of
the proprietary or other confidential information learned while
employed with USAir, including without limitation, employment by or
a consulting arrangement with any company providing air
transportation. This covenant not to compete does not prohibit you
from joining or becoming affiliated with a law firm which
represents a company providing air transportation, provided,
however, that if you join or affiliate with such a law firm you
will refrain from working on any matters for companies providing
air transportation for a period of six months from the Date of
Termination. During that six-month period, in the event that you
are employed by or affiliated with a law firm representing a
company providing air transportation and a representation matter
arises in which you wish to represent such company without making
use of proprietary or other confidential information learned while
employed with USAir, you may seek an exemption from this covenant
from the General Counsel of USAir. In the event of a breach of
this non-compete provision, any payments or other benefits promised
under this Agreement shall be forfeited. In the event of such
breach, USAir may seek injunctive relief as well as any other
equitable remedies available and appropriate under the
circumstances.
2
Xx. Xxxxx X. Xxxxx
February 6, 1996
8. As a result of the separation of your employment with
USAir earlier than anticipated, the 17,500 shares of restricted
stock granted to you on November 28, 1995, with a three year
vesting schedule, will not vest under the Restricted Stock
Agreement as currently drafted. USAir agrees that the
restrictions on 30% of the stock (5,250 shares) will lapse upon
your retirement on April 4, 1996 and the Restricted Stock Agreement
will be amended accordingly. The remaining 70% of the restricted
stock grant (12,250 shares) will be forfeited and revert to the
company.
9. As a result of the separation of your employment with
USAir earlier than anticipated, the supplemental pension benefit
payable to you pursuant to the non-qualified supplemental executive
retirement plan agreement dated December 6, 1991 (hereinafter "SERP
Agreement") will be less than the full 30-year benefit anticipated
under the SERP Agreement. Additionally, the early separation of
your employment will decrease the benefit payable to you under all
of USAir's retirement programs as a result of the need to commence
benefits earlier than anticipated. Accordingly, USAir agrees to
provide you with (a) service credit, (b) age credit, and (c)
earnings credit at your 1996 base salary rate, through the
remainder of the Employment Period under the Employment Agreement
(i.e., through June 29, 1999). This supplemental credit will be
applicable to the SERP Agreement and the frozen defined benefit
pension plan. All other terms of such retirement programs shall
remain as written.
10. To the extent required, USAir has obtained the approval
of the Compensation and Benefits Committee, and/or the Board of
Directors for the severance arrangement set forth herein.
EXECUTIVE USAIR, INC.
/s/Xxxxx X. Xxxxx /s/Xxxxxxx X. Xxxx
____________________________ ____________________________
Xxxxx X. Xxxxx Xxxxxxx X. Xxxx
Chairman and Chief Executive
Officer
