Amendment No. 2
Exhibit 10.45
Amendment No. 2
THIS AMENDMENT No. 2 is made as of this 17th day of February, 2003 to the Employment Agreement (the "Employment Agreement") dated September 5, 2002 by and between Xxxxx X. Xxxxxx ("Executive"), and UAL Corporation and United Airlines, Inc. (collectively, "United").
RECITALS
A. United desires to continue the employment of Executive as Chairman of the Board, President and Chief Executive Officer of United and Executive desires to continue such employment.
B. Section 10(f) of the Employment Agreement authorizes amendment of the Employment Agreement by a written agreement signed by Executive and United.
C. United and Executive wish to amend and clarify the terms of the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and covenants contained herein, United and Executive agree as follows:
1. The second sentence of Section 3(a) of the Employment Agreement is amended and restated to read as follows:
"The Executive agrees to repay an amount equal to the Signing Bonus if the Executive's employment with the Company is terminated either due to voluntary resignation by Executive other than for Good Reason (as defined in Section 4(d)) or by the Company for Cause (as defined in Section 4(c)) on or before the earlier of June 1, 2004, or the date on which the bankruptcy court confirms a plan of reorganization or liquidation under Chapter 11 of the U.S. Bankruptcy Code."2. The third sentence of Section 3(g)(i) of the Employment Agreement is amended and restated to read as follows:
- "If Executive's employment with United is terminated either due to
voluntary resignation by Executive other than for Good Reason (as defined
in Section 4(d)) or by United for Cause (as defined in Section 4(c)) and
the effective date of termination is on or before the first anniversary
of the Employment Date, then Executive will forfeit 100 percent of his
interest in his account under the Xxxxx Xxxxxx Secular Trust No. 1."
- "If Executive's employment with United is terminated either due to
voluntary resignation by Executive other than for Good Reason (as defined
in Section 4(d)) or by United for Cause (as defined in Section 4(c)) and
the effective date of termination is on or before the second anniversary
of the Employment Date, then Executive will forfeit 100 percent of his
interest in his account under the Xxxxx Xxxxxx Secular Trust No. 2."
- "If Executive's employment with United is terminated either due to
voluntary resignation by Executive other than for Good Reason (as defined
in Section 4(d)) or by United for Cause (as defined in Section 4(c)) and
the effective date of termination is on or before the third anniversary
of the Employment Date, then Executive will forfeit 100 percent of his
interest in his account under the Xxxxx Xxxxxx Secular Trust No. 3."
- "Notwithstanding the foregoing, Executive and United agree that (i)
the severance benefits provided under this Agreement are in lieu of severance
benefits provided under any plan, practice, program, or policy of United
and that Executive will not be entitled to receive additional severance
benefits under any plan, practice, program or policy of United which provides
severance benefits to its senior executives or other employees, and (ii)
the Signing Bonus provided under this Agreement is in lieu of any bonus
under the UAL Corporation Retention and Recognition Bonus Plan (the "KERP")
and that Executive will not be eligible to participate in or entitled to
receive any bonus payment under the KERP."
- "It is the intent of the parties to this Agreement that the definition
of Cause shall not include differences of agreement with respect to strategy
or implementation of business plans or the success or lack of success of
any such strategy or implementation. Accordingly, no action taken
or omitted to be taken by the Executive in the Executive's good faith belief
that such action or failure to act was in the best interest of United (provided
that such action or inaction was taken or omitted to be taken by the Executive
in his good faith belief that it was not inconsistent with directions received
from the Board or orders of the bankruptcy court), shall be a basis for
Cause under Section 4(c)(ii)."
- "Notwithstanding the foregoing, in no event shall a Change of Control
be deemed to occur as a result of any event which occurs prior to, or on
account of, consummation of a plan of reorganization of United other than
a Change of Control arising under clause (i) above, by reason of a merger
with another commercial airline company which results in the holders of
claims and/or interests in United outstanding immediately prior to the
merger or consolidation receiving or continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) less than 80% of the combined voting
power of the securities of United or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation, or
under clause (ii) above, by reason of the receipt of securities pursuant
to a plan of reorganization of United which constitutes at least 25% or
more of the total combined voting power of United's then outstanding securities,
which were received on account of any claims acquired after the date hereof
and held as of the consummation of the plan of reorganization by any person,
entity or group of associated persons or entities acting in concert, acquiring
such claims with the intent to control the management and policies of United
on an ongoing basis following reorganization, or under clause (iii) above,
by reason of the sale of assets to another commercial airline, unless such
sale results in either (x) creditors or interestholders of United receiving
in consideration or exchange for their claims and/or interests in United
at least 80% of the combined voting power of the acquirer, or (y) United
receiving at least 80% of the combined voting power of the acquirer."
- "provided, however, that in the event of a termination under this Section
5(d) prior to approval of a plan of reorganization of United, the Base
Salary taken into account under this Section 5(d)(iii) shall not exceed
$845,500;"
- "provided, however, that in the event of a termination under this Section
5(e) prior to approval of a plan of reorganization of United, the Base
Salary and Target Bonus taken into account under this Section 5(e)(iii)
shall each not exceed $845,500; and, provided further, that in the event
of a Change of Control described in 4(e)(i) or 4(e)(iii) occurring as a
result of any event which occurs prior to or on account of consummation
of a plan of reorganization, the amount payable under this Section 5(e)(iii)
shall be limited to three times the Executive's Base Salary (provided that
the Base Salary taken into account for this purpose shall not exceed $845,500)."
- "; provided, however, that any agreement for additional severance,
compensation or benefits payable in the event of a termination of employment
prior to the confirmation of a plan of reorganization of United shall be
subject to approval of the bankruptcy court."
IN WITNESS WHEREOF, United and Executive have executed this Amendment
as of the date first above written.
| UAL CORPORATION | EXECUTIVE |
| By: /s/ Xxxxxxxxx X. Xxxxx | /s/ Xxxxx X. Xxxxxx |
| Name: Xxxxxxxxx X. Xxxxx | Xxxxx X. Xxxxxx |
| Title: Senior Vice President, General Counsel & Secretary | |
| UNITED AIR LINES, INC. | |
| By: /s/ Xxxxxxxxx X. Xxxxx | |
| Name: Xxxxxxxxx X. Xxxxx | |
| Title: Senior Vice President, General Counsel & Secreatary |
