Exhibit 10.12(h)
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is made and
entered into as of this ____ day of ___________, 199__ (the
"Effective Date"), by and between ATLANTIC COAST AIRLINES,
INC., a Delaware corporation (the "Company") and
______________ ("Employee").
W I T N E S S E T H T H A T:
WHEREAS, Employee is currently employed by the Company
and the Company desires to continue to employ Employee; and
Employee desires to continue to be employed by the Company,
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Company and Employee desire to expressly
set forth in this Agreement the terms of Employee's
employment with the Company; and
WHEREAS, the Company has determined that the best
interests of the Company would be served by entering into
this Agreement with Employee; and
WHEREAS, the Company and Employee are both legally
able, and not restricted by prior agreements with other
parties, to enter into this Agreement; and
NOW, THEREFORE, the parties, for and in consideration
of the mutual and reciprocal covenants and agreements
hereinafter contained, and intending to be legally bound
hereby, do contract and agree as follows:
1. Employment: The Company hereby employs Employee
and Employee hereby accepts employment by the Company and
agrees to perform his duties and responsibilities hereunder
upon all of the terms and conditions as are hereinafter set
forth.
2. Duties: Employee shall serve the Company in the
capacities of ___________________________________. Employee
shall be responsible for supervising and directing all
operations of the Company. Employee shall otherwise be
responsible for carrying out such other duties and services
for the Company commensurate with Employee's position, as
may be designated from time to time by __________________.
3. Term of Employment: Employee's term of employment
under this Agreement shall commence on the Effective Date
and shall terminate on the last day of the calendar month
which is twelve (12) calendar months after the Effective
Date, unless further extended as hereinafter set forth.
Commencing on each successive anniversary of the Effective
Date, the Agreement shall automatically be extended for an
additional twelve (12) months without further action by
either party unless one party provides the other fifteen
(15) days' written notice that such party does not wish to
extend the term of this Agreement. The fifteenth (15th) day
following the date of such notice shall be deemed to be a
"Termination Date" for purposes of this Agreement.
4. Extent of Service: Employee shall devote such
time and attention as is required to perform his obligations
under this Agreement and will at all times faithfully and
industriously, consistent with his ability, experience and
talent, perform his duties hereunder under the direction of
the CEO.
5. Compensation: During the term of this Agreement,
the Company agrees to pay to Employee, and Employee agrees
to accept from the Company, in full payment for services
rendered by Employee and work to be performed by him under
the terms of this Agreement, the following:
A. During the first year under this Agreement,
an annual base salary of _____________________
($___________). Thereafter, the amount of Employee's base
salary shall be adjusted as determined by the Compensation
Committee of the Board of Directors of the Company.
Employee's base salary for each year shall be payable to him
in accordance with the reasonable payroll practices of the
Company, as from time to time, in effect for executive
personnel (but in no event less often than monthly).
B. Employee shall participate in the Company's
Senior Management Incentive Plan, or any successor bonus
plan or program for key executives.
C. The Company has entered into a Split Dollar
Agreement with Employee effective _______________, which
provides for a split dollar plan for a policy of insurance
upon the life of Employee in a face amount of
_______________ dollars ($__________).
(i) Employee is the owner of the policy
under the Split Dollar Agreement and has the right to
designate his beneficiary with respect to proceeds of the
policy payable upon his death; provided, however, that
notwithstanding the foregoing, the Company has a collateral
assignment of the policy as security for the repayment of
the amounts contributed by the Company toward the payment of
premiums for the policy.
(ii) The Company shall, each year as required
under the Split Dollar Agreement and the related policy,
pay, on or before the due date(s) under the terms of the
policy, the entire amount of the annual premium due on the
policy acquired pursuant to the terms of the Split Dollar
Agreement. Effective _______________, the annual premium due
on the policy will be determined by multiplying Employee's
annual base salary for the next twelve month period by a
percentage equal to twenty percent (20%) of said base
salary. The initial face amount of the policy will be not
less than ________________dollars ($_________).
(iii) Effective __________, in the event
that Employee's employment with the Company is terminated by
the Company for other than "for cause" (as hereinafter
defined) or should Employee elect to resign his employment
with the Company for any reason or no reason, the Company
shall pay to Employee a "Deferred Compensation" amount equal
to the applicable vested percentage of the total policy
premiums paid by the Company pursuant to the Split Dollar
Agreement. The applicable vested percentage shall be
determined as follows:
Years of Service Percentage Vested
1-4 0%
5 25%
6 35%
7 50%
8 65%
9 80%
10 100%
For purposes of determining Years of Service,
Employee will be credited with a "Year of Service" for
completion of each twelve (12) consecutive month period of
employment with the Company, beginning ___________. Said
Deferred Compensation amount shall be paid in a single lump
sum payment within fifteen (15) days after the termination
date as specified in this Paragraph D.
Notwithstanding the foregoing, in the event of a
change in control (as defined in Item 8 of this Agreement)
of the Company, Employee shall become immediately 100%
vested in his Deferred Compensation amount.
The Company shall release its interest in the policy,
or a portion thereof, on Employee's life acquired pursuant
to the terms of the Split Dollar Agreement, or any or all of
the paid up additions standing to the credit of such policy,
if any, such that such released interest equals the Deferred
Compensation amount paid to Employee pursuant to this
Paragraph D. The Company agrees that the amount of any such
release of interest by the Company shall reduce the amount
of "Liabilities" (as such term is defined in the Agreement
of Assignment of Life Insurance Death Benefit As Collateral
entered into between Employee and the Company in connection
with the Split Dollar Agreement) owed to the Company in
connection with the Split Dollar Agreement and related
Collateral Assignment Agreement. Accordingly, the Company
also agrees to reduce its collateral assignment of the
policy pursuant to the Split Dollar Agreement and related
Collateral Assignment Agreement.
D. Discretionary compensation, bonuses and benefits
in addition to those provided for herein in such amounts and
at such times as the Compensation Committee of the Board of
Directors of the Company shall determine.
6. Benefits: The Company shall pay for or provide
Employee such vacation time and benefits, including but not
limited to coverage under the Company's major medical,
accident, health, dental, disability and life insurance
plans available to other employees of the Company (and, to
the extent provided by such policies, Employee's
dependents). The Company shall provide Employee with an
executive medical reimbursement plan under which the Company
agrees to promptly reimburse Employee for any otherwise
unreimbursed premium and/or covered medical expenses, up to
$10,000 per calendar year.
7. Reimbursement of Expenses: The Company agrees to
promptly reimburse Employee, within fifteen (15) days after
presentation of receipts and other appropriate
documentation, for all reasonable, ordinary and necessary
travel costs and other necessary expenses incurred by
Employee in performing his duties pursuant to this
Agreement.
8. Deductions: Deductions shall be made from Employee's
compensation for social security, federal and state
withholding taxes, and any other such taxes as may, from
time to time, be required by governmental authority.
9. Termination: Employee's employment with the Company
shall be terminated as hereinafter provided:
A. Disability.
(i) In the event Employee shall become mentally
or physically disabled so as to be unable to perform his
duties hereunder (such determination to be made solely by
the Company) for six (6) consecutive months, the Company
shall have the right to terminate Employee's employment with
the Company upon the expiration of such six (6) month
period; provided, however, that the Company shall be
obligated to provide Employee with the such severance
compensation and benefits as hereinafter provided.
(ii) In the event Employee's employment is
terminated by the Company due to a disability as provided
herein, the Company shall continue to provide Employee with
the basic major medical insurance benefits maintained by the
Company and shall pay Employee such severance compensation
as hereinafter provided for a period (the "Severance
Period") which shall be twelve (12) months from the date of
Employee's termination. Employee's severance compensation
("Severance Compensation") shall be determined as follows:
during the Severance Period Employee shall receive an amount
equal to one hundred percent (100%) of his annual base
salary in effect at the commencement of his disability. In
addition, the Company shall pay Employee a prorated portion
of any annual bonus amount accrued through the Termination
Date, provided, however, that such bonus amount will be paid
at the time that such bonus amounts are normally paid by the
Company. The Atlantic Coast Airlines, Inc. flight pass
privileges currently granted to Employee will continue for
the Severance Period. However, such flight pass privileges
will be limited to flights on Atlantic Coast Airlines only.
(iii) Nothing contained herein shall be
construed to affect Employee's rights under any disability
insurance or similar policy, whether maintained by the
Company, Employee or another party.
(iv) For purposes of this Agreement, Employee
shall be deemed to be disabled when he shall have been
absent from his duties on a full time basis for six (6)
consecutive months.
(v) At the end of any disability (other than a
disability that results in the involuntary termination of
Employee's employment with the Company), Employee shall
return to work and this Agreement shall continue as though
such disability had not occurred.
(vi) If Employee desires to return to work at
the end of any disability, but there is a dispute as to
whether he is able to perform his duties hereunder, the
Company shall have sole discretion in determining whether
Employee is able to perform his duties hereunder on a
full-time basis.
B. Death.
(i) Employee's employment with the Company
shall terminate immediately upon Employee's death; provided,
however, that the Company shall be obligated to provide
Employee with such severance compensation and benefits as
hereinafter provided.
(ii) In the event Employee's employment with the
Company is terminated due to his death, the Company shall
continue to provide Employee's dependents with the basic
major medical insurance benefits maintained by the Company
(provided that such dependents were covered under the
applicable Company benefit plan at the time of Employee's
death) and shall pay Employee's estate Employee's
"Severance Compensation" for the "Severance Period." For
purposes of this Paragraph 9B, the Severance Period shall be
twelve (12) months from the date of Employee's death. The
amount of Employee's Severance Compensation shall be
determined as follows: during the Severance Period, an
amount equal to one hundred percent (100%) of Employee's
annual base salary in effect at the time of his death. In
addition, the Company shall pay Employee a prorated portion
of any annual bonus amount accrued through the Termination
Date, provided however, that such bonus amount will be paid
at the time that such bonus amounts are normally paid by the
Company.
(iii) Nothing contained herein shall be
construed to affect Employee's rights under any life
insurance or similar policy, whether maintained by the
Company, Employee or another party.
C. Termination by Employee.
Employee may terminate his employment with the
Company as provided in Paragraph 3. In such event, the
Company shall not be liable to Employee for any
compensation, bonus or fringe benefits after the date of
termination of employment.
D. Termination by the Company.
(i) Without Cause. The Company may, without
cause, terminate this Agreement at any time by giving to
Employee fifteen (15) days' written notice by Certified
Mail, Return Receipt Requested, at the last known residence
of Employee, and such termination shall be effective on the
fifteenth (15th) day following the date of such notice (the
"Termination Date"). At the option of the Company,
Employee's employment shall be immediately terminated upon
receipt of the notice, in which case Employee shall continue
to receive his full base salary and related benefits through
the Termination Date. In addition, the Company shall
continue to provide Employee with the basic major medical
insurance benefits maintained by the Company and shall pay
Employee "Severance Compensation" for the "Severance
Period." For purposes of this Paragraph D1, the Severance
Period shall be twelve (12) months from the Termination
Date. The amount of Employee's Severance Compensation shall
be determined as follows: during the Severance Period, an
amount equal to one hundred percent (100%) of Employee's
annual base salary in effect at the Termination Date. In
addition, the Company shall pay Employee a prorated portion
of any annual bonus amount accrued through the Termination
Date, provided however, that such bonus amount will be paid
at the time that such bonus amounts are normally paid by the
Company. In the discretion of the Company, the Severance
Compensation may be paid, in a single lump sum payment or
periodic payments in accordance with the reasonable payroll
practices of the Company as from time to time in effect for
executive personnel (but in no event less often than
monthly). The Atlantic Coast Airlines, Inc. flight pass
privileges currently granted to Employee will continue for
the Severance Period. However, such flight pass privileges
will be limited to flights on Atlantic Coast Airlines only.
(ii) For "cause." Company may terminate
Employee's employment under this Agreement immediately for
"cause." In such event, the Company shall not be liable to
Employee for any compensation, bonus or benefits after the
date of termination of employment. Cause shall be defined
as any of the following: (i) unauthorized misconduct in the
performance of Employee's duties hereunder, (ii) commission
of an act of dishonesty by Employee or personal misconduct,
which act is harmful to the Company, (iii) breach of any
provision of this Agreement. Any termination under this
Paragraph D2 shall take effect immediately upon Employee's
receipt of written notice from the Company to Employee.
10. Nonsolicitation and Confidentiality.
A. Nonsolicitation. For so long as Employee is an
employee of the Company and continuing for one (1) year
thereafter, Employee shall not, without the prior written
consent of the Company, directly or indirectly, as a sole
proprietor, member of a partnership, stockholder or
investor, officer or director of a corporation, or as an
employee, associate, consultant or agent of any person,
partnership, corporation or other business organization or
entity other than the Company: (i) solicit or endeavor to
entice away from the Company or any of its subsidiaries any
person or entity who is, or, during the then most recent 12-
month period, was employed by, or had served as an agent of,
the Company or any of its subsidiaries; or (ii) solicit or
endeavor to entice away from the Company or any of its
subsidiaries any person or entity who is, or was within the
then most recent 12-month period, a customer or client (or
reasonably anticipated (to the general knowledge of Employee
or the public) to become a customer or client) of the
Company or any of its subsidiaries.
B. Confidentiality. Employee covenants and agrees
with the Company that he will not at any time, except in
performance of his obligations to the Company hereunder or
with the prior written consent of the Company, directly or
indirectly, disclose any secret or confidential information
that he may learn or has learned by reason of his
association with the Company or any of its subsidiaries and
affiliates. The term "confidential information" includes
information not previously disclosed to the public or to the
trade by the Company's management, or otherwise in the
public domain, with respect to the Company's or any of its
affiliates' or subsidiaries', products, facilities,
applications and methods, trade secrets and other
intellectual property, systems, procedures, manuals,
confidential reports, price lists, customer lists, technical
information, financial information (including the revenues,
costs or profits associated with the Company), business
plans, prospects or opportunities, but shall exclude any
information which (i) is or becomes available to the public
or is generally known in the industry or industries in which
the Company operates other than as a result of disclosure by
Employee in violation of his agreements under this Paragraph
10B or (ii) Employee is required to disclose under any
applicable laws, regulations or directives of any government
agency, tribunal or authority having jurisdiction in the
matter or under subpoena or other process of law.
C. Exclusive Property. Employee confirms that all
confidential information is and shall remain the exclusive
property of the Company. All business records, papers and
documents kept or made by Employee relating to the business
of the Company shall be and remain the property of the
Company, except for such papers customarily deemed to be the
personal copies of Employee.
D. Injunctive Relief. Without intending to limit
the remedies available to the Company, Employee acknowledges
that a breach of any of the covenants contained in this
Section 10 may result in material and irreparable injury to
the Company or its affiliates or subsidiaries for which
there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and
that, in the event of such a breach or threat thereof, the
Company shall be entitled to seek a temporary restraining
order and/or a preliminary or permanent injunction
restraining Employee from engaging in activities prohibited
by this Section 10 or such other relief as may be required
specifically to enforce any of the covenants in this Section
10. If for any reason, it is held that the restrictions
under this Section 10 are not reasonable or that
consideration therefor is inadequate, such restrictions
shall be interpreted or modified to include as much of the
duration and scope identified in this Section 10 as will
render such restrictions valid and enforceable.
11. Assignment: This Agreement, as it relates to the
employment of Employee, is a personal contract and the
rights and interests of Employee hereunder may not be sold,
transferred, assigned, pledged or hypothecated. However,
this Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns including,
without limitation, any corporation or other entity into
which the Company is merged or which acquires all or
substantially all of the outstanding common stock or assets
of the Company.
12. Invalid Provisions: The invalidity of any one or
more of the clauses or words contained in this Agreement
shall not affect the reasonable enforceability of the
remaining provisions of this Agreement, all of which are
inserted herein conditionally upon being valid in law; and
in the event one or more of the words or clauses contained
herein shall be invalid, this instrument shall be construed
as if such invalid words or clauses had not been inserted
or, alternatively, said words or clauses shall be reasonably
limited to the extent that the applicable court interpreting
the provisions of this Agreement considers to be reasonable.
13. Specific Performance: The parties hereby agree that
any violation by Employee of the covenants and agreements
contained herein shall cause irreparable damage to the
Company, and the Company may, as a matter of course, enjoin
and restrain said violation by Employee by process issued
out of a court of competent jurisdiction, in addition to any
other remedies that said court may see fit to award.
14. Binding Effect: All the terms of this Agreement
shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives,
successors and assigns.
15. Waiver of Breach or Violation Not Deemed Continuing:
The waiver by the Company of any provision of this Agreement
shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof.
16. Entire Agreement; Law Governing: This Agreement
supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the
subject matter hereof, by and between the Company and
Employee, and contains all the covenants and agreements
among the parties with respect to such subject matter. This
Agreement shall be construed in accordance with the laws of
the Commonwealth of Virginia.
17. Paragraph Headings: The Paragraph headings contained
in this Agreement are for convenience only and shall in no
manner be construed as a part of this Agreement.
18. Stock Options:
A. Acceleration of Stock Options upon a
Change in Control. If the Company experiences a Corporate
Change, the exercisability and vesting of all Stock Options
granted to Employee before November 13, 1998 and held by
Employee as of the date of the Corporate Change shall
accelerate as of the date of such Corporate Change. The
Compensation Committee of the Company's Board of Directors
(the "Committee") shall provide that if a Corporate Change
occurs, then effective as of a date selected by the
Committee, the Committee (which for purposes of the
Corporate Changes described in clauses (iii) and (v) of the
definition of Corporate Change below shall be the Committee
as constituted prior to the occurrence of such Corporate
Change) acting in its sole discretion without the consent or
approval of Employee, will effect one or more of the
following alternatives or combination of alternatives with
respect to all outstanding Stock Options (which alternatives
may be conditional on the occurrence of such of the
Corporate Change specified in clause (i) through (v) of the
definition of Corporate Change below which gives rise to the
Corporate Change: (1) in the case of a Corporate Change
specified in clauses (i), (ii) or (iv) of the definition
thereof, provide that exercisable options (including any
options exercisable pursuant to the first sentence of this
Paragraph 18.A.) then outstanding may be exercised in full
for a limited period of time on or before a specified date
(which will permit Employee to participate with the Common
Stock received upon exercise of such option in the event of
a Corporate Change specified in clauses (i), (ii) or (iv) of
the definition of Corporate Change below, as the case may
be) fixed by the Committee, after which specified date all
unexercised options and all rights of Employee thereunder
shall terminate, (2) provide that exercisable options
(including any options exercisable pursuant to the first
sentence of this Paragraph 18.A.) then outstanding may be
exercised so that such options may be exercised in full for
their then remaining term, or (3) require the mandatory
surrender to the Company of outstanding options held by
Employee (including any options exercisable pursuant to the
first sentence of this Paragraph 18.A.) as of a date, before
or not later than sixty days after such Corporate Change,
specified by the Committee, and in such event the Committee
shall thereupon cancel such options and the Company shall
pay to Employee an amount of cash equal to the excess of the
fair market value of the aggregate shares subject to such
option over the aggregate option price of such shares;
provided, however, the Committee shall not select an
alternative (unless consented to by Employee) that, if
Employee exercised his accelerated options pursuant to
alternative 1 or 2 and participated in the transaction
specified in clause (i), (ii) or (iv) of the definition of
Corporate Change below or received cash pursuant to
alternative 3, would result in Employee's owing any money by
virtue of operation of Section 16(b) of the Exchange Act.
If all such alternatives have such a result, the Committee
shall take such action, which is hereby authorized, to put
Employee in as close to the same position as Employee would
have been in had alternative 1, 2 or 3 been selected but
without resulting in any payment by Employee pursuant to
Section 16(b) of the Exchange Act. Notwithstanding the
foregoing, with the consent of Employee, the Committee may
in lieu of the foregoing make such provision with respect of
any Corporate Change as it deems appropriate.
B. Definitions. For purposes of this
Agreement:
(i) "Stock Options" shall mean any
grant to Employee by the Company, pursuant to the Company's
1992 or 1995 Stock Option Plan, of the right and option to
acquire from the Company a specified number of shares of
Atlantic Coast Airlines Holdings, Inc. common stock under
certain terms and conditions.
(ii) "Change in Control" and "Corporate
Change" shall each mean (i) any merger or consolidation in
which the Company shall not be the surviving entity (or
survives only as a subsidiary of another entity, unless the
stockholders of Company immediately before such merger or
consolidation own, directly or indirectly immediately
following such merger or consolidation, substantially all of
the combined voting power of the surviving entity in
substantially the same proportion as their ownership
immediately before such merger or consolidation, (ii) the
sale of all or substantially all of the Company's assets to
any other person or entity (other than a wholly-owned
subsidiary), (iii) the acquisition of beneficial ownership
or control of (including, without limitation, power to vote)
more than 50% of the outstanding shares of Common Stock by
any person or entity (including a "group" as defined by or
under Section 13(d)(3) of the Exchange Act), (iv) the
dissolution or liquidation of the Company, (v) a contested
election of directors, as a result of which or in connection
with which the persons who were directors of the Company
before such election or their nominees cease to constitute a
majority of the Board, or (vi) any other event specified by
the Committee, regardless of whether at the time an Option
is granted or thereafter.
C. Amendment to Existing Option Agreements.
The provisions of this Paragraph 18 shall apply to all Stock
Options or restricted stock previously granted to Employee,
and this Amendment Number One shall be deemed to be an
amendment to all Stock Option Agreements and the Restricted
Stock Agreement presently in existence between the Company
and Employee, and will supersede any language to the
contrary contained in said agreements. The Compensation
Committee of the Board of Directors retains full discretion
of whether to grant any additional Stock Options in the
future, and if so whether the terms provided herein will
apply to said Stock Options.
IN WITNESS WHEREOF, the Company has hereunto caused this
Agreement to be executed by a duly authorized officer and
Employee has hereunto set his hand as of the day and year
first above written.
_______________________________
COMPANY:
ATLANTIC COAST AIRLINES, INC.
By:_____________________________
(CORPORATE SEAL)
ATTEST:
______________________