SEPARATION AGREEMENT AND GENERAL RELEASE DELTA AIR LINES, INC. 2007 OFFICER AND DIRECTOR SEVERANCE PLAN
EXHIBIT
10.2
SEPARATION
AGREEMENT AND GENERAL RELEASE
DELTA
AIR LINES, INC. 2007 OFFICER AND DIRECTOR SEVERANCE PLAN
1. Agreement.
I,
[Insert
Name],
the
undersigned and individual named on the signature page hereto, wish to accept
the benefits being offered by Delta Air Lines, Inc. ("Delta")
under
the Delta Air Lines, Inc. 2007 Officer and Director Severance Plan, (the
"Plan").
In
agreeing to participate in the Plan, I acknowledge I have carefully reviewed
the
provisions of the Plan, as well as this Separation Agreement and General Release
("Agreement").
I
believe both the Agreement and the Plan are in my best interest and I
acknowledge entering into this Agreement voluntarily and without
coercion.
2. Severance
Benefits. In
exchange for voluntarily executing and returning this Agreement to Delta, and
satisfying all eligibility criteria set forth in the Plan, Delta will provide
me
with the benefits as described in the Plan, (a) subject to the required
withholding and payment of all applicable federal, state and local taxes and
(b)
with no tax reimbursement by Delta related to any travel privileges or any
other
benefits provided under the Plan. I acknowledge and agree that Delta will have
no obligation to provide me with any benefits in connection with my employment
relationship with Delta, or the termination of that relationship, except as
described in the Plan, as modified by this Agreement (other than retirement
and
equity-based benefits in accordance with the respective terms of any retirement
and equity-based benefits plan in which I participated during my employment
with
Delta).
3. General
Waiver and Release. In
exchange for the benefits which Delta is providing under this Agreement and
the
Plan, I hereby agree as follows:
a. Except
for the rights and obligations provided by or arising under this Agreement,
the
Delta Retirement Plan, the Delta Family-Care Savings Plan, the Delta Air Lines,
Inc. 2007 Performance Compensation Plan, or any right I may have to
indemnification by Delta, I hereby release, acquit, withdraw, retract and
forever discharge any and all claims, or causes of action which I now have
or
may have hereafter, directly or indirectly, personally or in a representative
capacity, against Delta, including its predecessors and successors, and its
subsidiaries and affiliates and all of each entity’s respective administrators,
fiduciaries, parents, subsidiaries, plans, affiliates, officers, directors,
shareholders, representatives, agents, employees, and all persons acting through
or in connection with Delta (each a "Released
Party")
by
reason of any matter, conduct, claim, event, act, omission, cause or thing
whatsoever, from the beginning of time to, and including, the date of execution
of this Agreement. This general release includes, but is not limited to, all
claims, manner of actions, and causes of action which arise under Title VII
of
the Civil Rights Act of 1964, as amended; The Age Discrimination in Employment
Act of 1967, as amended; The Americans with Disabilities Act; The Rehabilitation
Act of 1973, as amended; The Family & Medical Leave Act; The Worker
Adjustment and Retraining Notification Act; 42 U.S.C. §§ 1981 through 1988; the
Employee Retirement Income Security Act of 1974, as amended, any other federal,
state or local statute or ordinance respecting discriminatory hiring or
employment practices or civil rights laws based on protected class status;
common law claims of intentional or negligent infliction of emotional distress,
defamation, negligent hiring, breach of contract, breach of the covenant of
good
faith and fair dealing, promissory estoppel, negligence, or wrongful termination
of employment; and all other claims of any type or nature, including any claim
in contract or tort, and including any claim for attorneys' fees. I understand
and intend that this General Release shall discharge all claims against the
Released Parties to the extent permitted by law, but shall not discharge claims
arising out of any events which may occur after the date of execution of this
Agreement.
b. Except
as
necessary to enforce the terms of this Agreement, I agree that neither I, nor
anyone acting on my behalf, will xxx any Released Party based on any claim
released under this Agreement. In the event that I xxx, or anyone acting on
my
behalf sues, any Released Party based on any claim released under this
Agreement, I will hold each Released Party harmless from any claim asserted
in
such lawsuit and will accept no payment or other benefit as a result of such
lawsuit or any settlement thereof.
4. No
Admissions. This
Agreement is not to be construed in any way as an admission by any of the
Released Parties that they have violated any federal, state, or local law,
ordinance, regulation, or policy.
5. ADEA
Waiver. I
understand that there may be numerous, valuable rights under federal and state
law, including rights under the Age Discrimination in Employment Act of 1967,
as
amended, 29 U.S.C. § 621, et seq.,
which
I am waiving by executing this Agreement. In connection with this, I hereby
certify that:
a. This
Agreement and the Plan are written in a manner that is understandable to
me;
b. I
am
receiving valuable consideration under this Agreement to which I would not
otherwise be entitled;
c. I
have
been advised in writing to consult with an attorney prior to executing this
Agreement;
d. I
understand that this Agreement is a general release of Delta and the other
Released Parties from any past or existing claim or potential claim including
any claim or potential claim relating to my employment relationship with Delta,
and termination of that relationship;
e. I
have
been given a period of forty-five (45) days in which to consider whether to
sign
this Agreement and to consult with an attorney, accountant, tax advisor, spouse,
or any other person. I have either used this full forty-five (45) day period
to
consider this Agreement, or have voluntarily chosen to execute this Agreement
before the end of that period;
f. I
understand I have seven (7) calendar days after signing this Agreement to revoke
this Agreement (the “Revocation
Period”).
To
revoke this Agreement, I must notify Delta of the intent to revoke through
a
signed statement delivered to Xxx Xxxxx, Delta Air Lines, Inc., ATG Department
948, 0000 Xxxxx Xxxx., Xxxxxxx, Xxxxxxx 00000-0000, or to such other person
and
address as Delta may designate in writing, on or before the last day of the
Revocation Period. I acknowledge that this Agreement will not take effect until
the day after the Revocation Period has expired, provided that I have not
exercised my revocation right. If I revoke this Agreement, it shall immediately
be void and of no further force or effect and I will not receive the Severance
Benefits referred to in Section 2 of this Agreement; otherwise, this Agreement
will be fully effective and enforceable as of the day after the Revocation
Period.
[Note: if employee is based in or resides in Minnesota—revocation period must be
15 days to be valid under the Minnesota Human Rights
Act]
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6. Return
of Property. I
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, which
I have come in contact with in the course of my employment (hereinafter
"Delta's
Materials")
shall,
as between the parties hereto, remain the sole property of Delta. I hereby
warrant that I have returned all originals and copies of Delta's Materials
to
Delta.
7. Cooperation.
I
agree
that I shall, 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 I, by virtue of my employment with Delta, have knowledge or information
relevant to the litigation. Delta shall reimburse me for reasonable and
necessary out-of-pocket expenses that I incur in connection with such
cooperation.
8. Trade
Secrets. I
hereby
acknowledge that
during the term of my employment with Delta, I had access to and acquired
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”).
I
hereby agree that, for so long as such information remains a Trade Secret as
defined by Georgia law, I will hold in a fiduciary capacity for the benefit
of
Delta and shall not directly or indirectly make use of, on my 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.
9. Confidential
or Proprietary Information. I
further
agree that I will hold in a fiduciary capacity for the benefit of Delta, and,
during the two year period beginning on the date I sign this Agreement (the
“Effective
Date”),
shall
not directly or indirectly use or disclose, any Confidential or Proprietary
Information, as defined hereinafter, that I may have acquired (whether or not
developed or compiled by me and whether or not I was authorized to have access
to such Confidential or Proprietary Information) during the term of, in the
course of, or as a result of my 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.
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10. Employee
Non-Solicitation Agreement.
During
the
one-year period following the Effective Date, I will
not
directly or indirectly (on my 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 its subsidiaries
or
solicit, encourage or induce any such person to terminate their employment
with
Delta and its subsidiaries. The restrictions set forth in this Section shall
be
limited to those Company management or professional employees who: (i) were
employed by Delta during my employment in a supervisory or administrative job;
and (ii) with whom I had material professional contact during my employment
with
Delta.
11. Non-Competition
Agreement.
During
the one-year period following the Effective Date, I will not on my 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 I 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 I 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.
12. Arbitration.
I hereby
agree that except as expressly set forth below, all disputes and any claims
arising out of or under or relating to this Agreement, including without
limitation any dispute or controversy as to the validity, interpretation,
construction, application, performance, breach or enforcement of this Agreement
or any of its terms, 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 to 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 conflict 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. I hereby consent to the
personal jurisdiction of the state and federal courts located 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 12 to be
effective:
___________________ [Name]
___________________ Delta
Air Lines, Inc.
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13. Injunctive
Relief in Aid of Arbitration; Forum Selection.
I hereby
acknowledge and agree that the provisions contained in Sections 8, 9, 10, and
11
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. I 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 me from continuing to commit any violation of
the
covenants, and I 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 me
by
Delta in aid of arbitration.
14. Consequences
of Breach. Furthermore,
I acknowledge that, in partial consideration for the payments and benefits
described in the Plan and this Agreement, Delta is requiring that I agree to
and
comply with the terms of Sections 8 through 11 and I hereby agree that without
limiting any of the foregoing, should I violate any of the terms of Sections
8
through 11 hereof , I: (a) will not be entitled to and shall not receive any
benefits under the Plan and this Agreement; and (b) shall repay to Delta all
cash compensation I have received under this Agreement.
15. Tolling.
I
further
agree that in the event the enforceability of any of the restrictions as set
forth in Sections 9, 10, or 11 of this Agreement are challenged and I am 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(s) 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.
16 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.
17. Waiver
of Jury Trial.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, I 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 ME, OR ANY EXERCISE BY DELTA OR ME OF OUR
RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS AGREEMENT.
I FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR DELTA TO
ISSUE AND ACCEPT THIS AGREEMENT.
18. No
Statements.
I agree
that I will not make any oral or written statement to the news media, in any
public forum, or to any business competitive with Delta, concerning any actions
or inactions by Delta, or any of its present or former subsidiaries or
affiliates or any of its
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present
or former officers, directors or employees, relative to Delta’s compliance with
any state, federal or local law or rule. I further agree that I will not make
any oral or written statement or take any other action which disparages or
criticizes Delta, or any of its present or former subsidiaries or affiliates
or
any of its present or former officers, directors or employees, including, but
not limited to any such statement which damages Delta’s good reputation or
impairs its normal operations. I further agree that I will not initiate or
solicit claims against Delta, or otherwise directly or indirectly encourage
or
support any claim that has been or in the future is asserted by a third party
against Delta.
19. 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.
20. Entire
Agreement.
This
Agreement sets forth the entire Agreement between me and Delta and supersedes
any other written or oral agreement. No representations, statements, or
inducements have been made to me concerning this Agreement other than the
representations and statements contained and memorialized in this
Agreement.
IN
WITNESS WHEREOF,
Delta
has executed this Agreement on the _____ day of __________________, _____,
and
[Name] has executed this Agreement on the date indicated below.
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(Employee
signature)
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Name:_______________________________________
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Date:
_______________________________________
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Xxxxxx
X. Xxxxx
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Vice
President - Compensation and Benefits
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Delta
Air Lines, Inc.
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