DELTA 2007 PERFORMANCE COMPENSATION PLAN AWARD AGREEMENT
EXHIBIT
10.1
DELTA
2007 PERFORMANCE COMPENSATION PLAN
April
30, 2007
[Participant
Name]
[City
and State Where Employed]
[Employee
ID#]
This
Award Agreement (the “Agreement”)
describes some of the terms of your Emergence Award (the “Award”)
under
the Delta 2007 Performance Compensation Plan (the “Plan”).
Your
Award is also subject to the terms of the Plan, including Appendix A thereof,
which sets forth the specific terms of your Award. Words beginning with a
capital letter which are used but not otherwise defined in this Agreement
have
the meaning set forth in the Plan. In order for this Award to become effective,
you must accept the Award in accordance with the terms of Section 9 below.
1. Summary
of Award.
Subject
to your acceptance, your Award will include a Nonqualified Stock Option,
Restricted Stock and a Performance Award as described below. Other
terms applicable to your Award, including vesting and forfeitability, are
included in the Plan and Appendix A thereto, both of which are hereby
incorporated herein by this reference.
(a) Nonqualified
Stock Options. You
are
hereby awarded a Nonqualified Stock Option (the “Stock
Option”),
exercisable for [NUMBER]
shares
of Delta Common Stock, par value $0.0001 per share (“Common
Stock”).
The
grant date of your Stock Option will be the first trading day of the Common
Stock on the New York Stock Exchange (the “NYSE”)
occurring 30 calendar days after the first day that Common Stock is traded
regular-way on the NYSE (the “Grant
Date”).
The
exercise price of the Stock Option will be the closing price of a share of
Common Stock on the NYSE on the Grant Date.
(b) Restricted
Stock. You
are
hereby awarded [NUMBER]
shares
of Restricted Stock.
(c) Performance
Award. You
are
hereby awarded a Performance Award for [NUMBER]
shares
of Common Stock at the target level.
2. Restrictive
Covenants. In
exchange for the Award, you hereby agree as follows:
(a) Trade
Secrets.
You
hereby acknowledge that
during the term of your employment with Delta Air Lines, Inc., its subsidiaries
and affiliates (“Delta”),
you
have had access to and will continue to acquire knowledge of secret,
confidential and proprietary information regarding Delta and its business
that
fits within the definition of “trade secrets” under the law of the State of
Georgia, including, without limitation, information regarding Delta’s present
and future operations, its financial operations, marketing plans and strategies,
alliance agreements and relationships, its compensation and incentive programs
for employees, and the business methods used by Delta and its employees,
and
other information which derives economic value, actual or potential, from
not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use,
and
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy (each, a “Trade
Secret”).
You
hereby agree that for so long as such information remains a Trade Secret
as
defined by Georgia law, you will hold in a fiduciary capacity for the benefit
of
Delta and shall not directly or indirectly make use of, on your own behalf
or on
behalf of others, any Trade Secret, or transmit, reveal or disclose any Trade
Secret to any person, concern or entity. Nothing in this Agreement is intended,
or shall be construed, to limit the protections of any applicable law protecting
trade secrets.
(b) Confidential
or Proprietary Information.
You
further agree that you will hold in a fiduciary capacity for the benefit
of
Delta, and, during the term or your employment with Delta and for the two
year
period after such employment terminates, shall not directly or indirectly
use or
disclose, any Confidential or Proprietary Information, as defined hereinafter,
that you acquire (whether or not developed or compiled by you and whether
or not
you were authorized to have access to such Confidential or Proprietary
Information) during the term of, in the course of, or as a result of your
employment by Delta. Subject to the provisions set forth below, the term
“Confidential
or Proprietary Information”
as
used
in this Agreement means the following secret, confidential and proprietary
information of Delta not otherwise included in the definition of Trade Secret:
all marketing, alliance, advertising and sales plans and strategies; all
pricing
information; all financial, advertising and product development plans and
strategies; all compensation and incentive programs for employees; all alliance
agreements, plans and processes; all plans, strategies, and agreements related
to the sale of assets; all third party provider agreements, relationships,
and
strategies; all business methods and processes used by Delta and its employees;
all personally identifiable information regarding Delta employees, contractors,
and applicants; and all lists of actual or potential customers or suppliers
maintained by Delta. The term “Confidential and Proprietary Information” does
not include information that has become generally available to the public
by the
act of one who has the right to disclose such information. Nothing in this
Agreement is intended, or shall be construed, to limit the protections of
any
applicable law protecting confidential or proprietary information.
(c) Employee
Non-Solicitation Agreement.
During
the term
of your employment with Delta and during the one-year period following the
termination of such employment, you will
not
directly or indirectly (on your own behalf or on behalf of any other person,
company, partnership, corporation or other entity), employ or solicit for
employment any individual who is a management or professional employee
of Delta for employment with any entity or person other than Delta or solicit,
encourage or induce any such person to terminate their employment with Delta.
The restrictions set forth in this Section shall be limited to those Delta
management or professional employees who: (i) were employed by Delta during
your
employment in a supervisory or administrative job; and (ii) with whom you
had
material professional contact during your employment with Delta.
(d) Non-Competition
Agreement.
During
the term of your employment with Delta and for the one-year period following
the
termination of such employment, you will not on your own behalf or on behalf
of
any person, firm, partnership, association, corporation or business
organization, entity or enterprise, provide the same or substantially similar
services, as an employee, consultant, partner, or in any other capacity,
to any
of the
following entities, which you hereby acknowledge are all competitors of Delta:
AMR Corporation, American Airlines, Inc., Continental Airlines, Inc., Southwest
Airlines Co., UAL Corporation, United Air Lines, Inc., US Airways, Inc.,
Jet
Blue Airways, Inc., AirTran Airways, Inc., or Northwest Airlines, Inc.
(individually and collectively, the “Competitor”).
This
restriction shall only apply to the extent that you may not provide services
to
the Competitor: (a) while working within
a
fifty (50) mile radius of the city limits of Atlanta, Georgia; or (b) while
working out of or within a fifty (50) mile radius of the corporate headquarters
of the Competitor.
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(e) Return
of Property.
You
hereby agree that all property belonging to Delta, including records, files,
memoranda, reports, personnel information (including benefit files, training
records, customer lists, operating procedure manuals, safety manuals, financial
statements, price lists and the like), relating to the business of Delta,
with
which you come in contact in the course of your employment (hereinafter
"Delta's
Materials")
shall,
as between the parties hereto, remain the sole property of Delta. You hereby
warrant that you shall promptly return all originals and copies of Delta's
Materials to Delta at the time your employment terminates.
(f) Cooperation. You
hereby agree
that you shall, both during and after your employment with Delta, to the
extent
requested in writing and reasonable under the circumstances, cooperate with
and
serve in any capacity requested by Delta in any pending or future litigation
in
which Delta has an interest, and regarding which you, by virtue of your
employment with Delta, have knowledge or information relevant to the litigation.
3. Dispute
Resolution. (a)
Arbitration. You
hereby agree that except as expressly set forth below, all disputes and any
claims arising out of or under or relating to the Award or this Agreement,
including without limitation any dispute or controversy as to the validity,
interpretation, construction, application, performance, breach or enforcement
of
this Agreement, shall be submitted for, and settled by, mandatory, final
and
binding arbitration in accordance with the Commercial Arbitration Rules then
prevailing of the American Arbitration Association. Unless an alternative
locale
is otherwise agreed in writing by the parties to this Agreement, the arbitration
shall be conducted in the City of Wilmington, Delaware. The arbitrator will
apply Delaware law to the merits of any dispute or claim without reference
to
rules of conflicts of law. Any award rendered by the arbitrator shall provide
the full remedies available to the parties under the applicable law and shall
be
final and binding on each of the parties hereto and their heirs, executors,
administrators, successors and assigns and judgment may be entered thereon
in
any court having jurisdiction. You hereby consent to the personal jurisdiction
of the state and federal courts in the State of Delaware for any action or
proceeding arising from or relating to any arbitration under this Agreement.
The
prevailing party in any such arbitration shall be entitled to an award by
the
arbitrator of all reasonable attorneys’ fees and expenses incurred in connection
with the arbitration. However, Delta will pay all fees associated with the
American Arbitration Association and the arbitrator. All parties must initial
here for this Section 3 to be effective:
_____________________
[Name]
_____________________
Delta
Air Lines, Inc.—Xxxx Xxxxxxxx, EVP .
(b) Injunctive
Relief in Aid of Arbitration; Forum Selection.
You
hereby acknowledge and agree that the provisions contained in Section 2 of
this
Agreement are reasonably necessary to protect the legitimate business interests
of Delta, and that any breach of any of these provisions will result in
immediate and irreparable injury to Delta for which monetary damages will
not be
an adequate remedy. You further acknowledge that if any such provision is
breached or threatened to be breached, Delta will be entitled to seek a
temporary restraining order, preliminary injunction or other equitable relief
in
aid of arbitration in any court of competent jurisdiction without the necessity
of posting a bond, restraining you from continuing to commit any violation
of
the covenants, and you hereby irrevocably consent to the jurisdiction of
the
state and federal courts of the State of Delaware, with venue in Wilmington,
which shall have jurisdiction to hear and determine any claim for a temporary
restraining order, preliminary injunction or other equitable relief brought
against you by Delta in aid of arbitration.
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(c) Consequences
of Breach. Furthermore,
you acknowledge that, in partial consideration for the awards described in
the
Plan and this Agreement, Delta is requiring that you agree to and comply
with
the terms of Section 2 and you hereby agree that without limiting any of
the
foregoing, should you violate any of the covenants included in Section 2
above,
you will not be entitled to and shall not receive any Awards under
the
Plan and this Agreement and any outstanding Awards will be forfeited.
(d) Tolling.
You
further agree that in the event the enforceability of any of the restrictions
as
set forth in Section 2 of this Agreement are challenged and you are not
preliminarily or otherwise enjoined from breaching such restriction(s) pending
a
final determination of the issues, then, if an arbitrator finds that the
challenged restriction(s) is enforceable, the time period set forth in such
Section shall be deemed tolled upon the filing of the arbitration or action
seeking injunctive or other equitable relief in aid of arbitration, whichever
is
first in time, until the dispute is finally resolved and all periods of appeal
have expired.
(e) Governing
Law.
Unless
governed by federal law, this Agreement shall be governed by and construed
in
accordance with the laws of the State of Delaware, without regard to principles
of conflicts of laws of that State.
(f) Waiver
of Jury Trial.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY
IN
CONNECTION WITH ANY MATTER ARISING OUT OF, UNDER, IN CONNECTION WITH, OR
IN ANY
WAY RELATED TO THIS AGREEMENT. THIS INCLUDES, WITHOUT LIMITATION, ANY DISPUTE
CONCERNING ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL
OR WRITTEN), OR ACTION OF DELTA OR YOU, OR ANY EXERCISE BY DELTA OR YOU OF
OUR
RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS AGREEMENT.
YOU FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR DELTA
TO
ISSUE AND ACCEPT THIS AGREEMENT.
4. Validity;
Severability.
In the
event that one or more of the provisions contained in this Agreement shall
for
any reason be held invalid, illegal, or unenforceable in any respect, such
holding shall not affect any other provisions in this Agreement, but this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provisions had never been contained herein. The invalidity, illegality or
unenforceability of any provision or provisions of this Agreement will not
affect the validity or enforceability of any other provision of this Agreement,
which will remain in full force and effect.
5. Authority
of the Committee.
You
acknowledge and agree that the Committee has the sole and complete authority
and
discretion to construe and interpret the terms of the Plan and this Agreement.
All determinations of the Committee shall be final and binding for all purposes
and upon all persons, including, without limitation, you and the Company,
and
your heirs and successors. The Committee shall be under no obligation to
construe this Agreement or treat the Award in a manner consistent with the
treatment provided with respect to other Awards or
Participants.
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6. Amendment.
This
Agreement may not be amended or modified except by written agreement signed
by
you and Delta.
7. Acknowledgement.
By
signing this Agreement: (a) you acknowledge that you have had a full and
adequate opportunity to read this Award Agreement and you agree with every
term
and provision herein, including without limitation, the terms of Sections
2, 3,
4, and 5; (b) you acknowledge that you have received and had a full and adequate
opportunity to read the Plan, including Appendix A to the Plan; (c) you agree,
on behalf of yourself and on behalf of any designated beneficiary and your
heirs, executors, administrators and personal representatives, to all of
the
terms and conditions contained in this Agreement and the Plan, including
Appendix A to the Plan; and (d) you consent to receive all material regarding
any awards under the Plan, including any prospectuses, electronically with
an
e-mail notification to your work e-mail address.
8. Entire
Agreement.
This
Agreement, together with the Plan, including Appendix A to the Plan (the
terms
of which are made a part of this Agreement and are incorporated into this
Agreement by reference), constitutes the entire agreement between you and
Delta
with respect to the Award.
9. Acceptance
of this Award.
If
you
agree to all of the terms of this Agreement and would like to accept this
Award,
you must: (a) sign and date the Agreement where indicated below and return
an
original signed version of this Agreement to Xxx Xxxxx, either by hand or
by
mail to Department 948, X.X Xxx 00000, Xxxxxxx, Xxxxxxx 00000; and
(b)
indicate your acceptance of the Award electronically at xxx.xxxxxxxxxxx.xxxxxxxx.xxx.
It is
currently contemplated that such on-line access will be available May 31,
2007.
If you have any questions regarding how to accept your Award, please contact
Xxxxxx Xxxxxx at (000) 000-0000. Delta hereby acknowledges and agrees that
its
legal obligation to make the Award to you shall become effective when you
sign
this Agreement, subject to your eventual completion of step (b)
above.
You
and
Delta, each intending to be bound legally, agree to the matters set forth
above
by signing this Agreement, all as of the date set forth below.
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DELTA
AIR LINES, INC.
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By:
___________________________________________
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Name:
Xxxx Xxxxxxxx
Title:
Executive Vice President
Human Resources and Labor Relations
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PARTICIPANT
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[NAME]
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Date
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