EXHIBIT 10.1
2002 DELTA EXCESS BENEFIT PLAN
SECTION 1
Introduction. Delta Air Lines, Inc. (the "Company") has established and
maintained the Delta Family-Care Retirement Plan (the "Retirement Plan") as a
qualified retirement plan under Section 401 of the Internal Revenue Code of
1986, as amended ("the Code"), for the purpose of providing retirement benefits
to employees of the Company. Restrictions on qualified retirement plan
contributions and benefits under Section 415 of the Code may prevent certain of
the Company's officers and key employees (together "Key Employees") from
receiving the retirement income to which they would otherwise be entitled under
the Retirement Plan. To provide for the payment of such retirement benefits that
may not be provided for Key Employees in the qualified plan, the Company
implemented a non-qualified excess benefit plan to provide the shortfall, which
has been referred to as the Delta Excess Benefit Plan (the "Excess Benefit
Plan"). The Excess Benefit Plan was previously restated in 1986 and 1991, and
hereby is restated as the 2002 Delta Excess Benefit Plan. The provisions hereof
shall apply only to Employees whose employment terminates on or after February
1, 2002. The rights and benefits, if any, of a former Employee whose employment
terminated before such date, and who is not reemployed after such date shall be
determined solely in accordance with either the 1986 Delta Excess Benefit Plan
or the 1991 Delta Excess Benefit Plan, as amended, as in effect on the date of
his or her termination of employment.
SECTION 2
Nature of Plan. The Plan is a non-qualified excess benefit plan
covering only Key Employees who are affected by the limitations imposed under
Section 415 of the Code.
Accordingly, this Plan constitutes an "excess benefit plan" as that term is
defined in Section 3(36) of the Employee Retirement Income Security Act of 1974
("ERISA") and is intended to be exempt from coverage under ERISA pursuant to
ERISA Sections 4(b)(5) and 4021.
SECTION 3
Eligibility. The Personnel & Compensation Committee of the Board of
Directors of Delta Air Lines, Inc. (the "Committee") has the sole authority to
designate which of the Company's employees are Key Employees for purposes of
this Plan; however, all employees who participate in the 2002 Delta Supplemental
Excess Benefit Plan shall automatically be designated as Key Employees under
this Plan without further action by the Committee. No Key Employee shall have
rights under the Plan unless such Key Employee enters into an Excess Benefit
Agreement, and such rights will be determined under that Agreement. Except as
provided in Section 6, once an employee is a Key Employee, and has entered into
an Excess Benefit Agreement, the employee will always remain a Key Employee for
purposes of the Plan until all benefits provided under such Excess Benefit
Agreement have been satisfied.
SECTION 4
Incorporation of Retirement Plan. The terms of the Retirement Plan as
of July 1, 2002 are hereby incorporated into this Plan by reference. The
provisions of any future amendments to that plan shall also be incorporated
automatically into this Plan by reference, except that changes in the Retirement
Plan which reduce benefits (other than changes as may be required by law and the
reduction or elimination of the right, if any, to receive post retirement
benefit increases from the Retirement Plan solely as the result of increases in
the qualified plan payment limit under Section
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415 (b) of the Code, whether such increases are the result of cost of living
adjustments or statutory change) shall be incorporated as to any individual Key
Employee only if advance notice of such proposed reduction is given to the Key
Employee and the Key Employee agrees to an amendment of his or her Excess
Benefit Agreement to incorporate the reduction of benefit. The incorporation of
the Retirement Plan into this Plan is not intended to modify any provision of
this Plan or alter in any way any rights a Key Employee has under the Plan. The
benefits provided under this Plan shall be governed only by the provisions
hereof and the Excess Benefit Agreement. Unless indicated otherwise, capitalized
terms in this Plan shall have the meaning given those terms in the Retirement
Plan.
SECTION 5
Excess Benefit Agreement. Each Key Employee shall be offered the
opportunity to enter into an Excess Benefit Agreement for the purpose of
providing to such employee the retirement benefit that would have been provided
under the Retirement Plan but for limitations of Section 415 of the Code. The
benefits payable to each Key Employee or his or her Spouse under this Plan shall
be governed exclusively by the Excess Benefit Agreement entered into with such
Key Employee.
SECTION 6
Certain Restrictions. Unless waived by the Committee under
circumstances it deems appropriate or deemed waived pursuant to an agreement
between the Company and a Key Employee, if a Key Employee terminates active
employment with the Company prior to his or her Normal Retirement Date and
within two years of such termination directly or indirectly provides
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management or executive services (whether as a consultant, advisor, officer or
director) to any individual, corporation, partnership, association, trust or any
other entity or organization which is in direct and substantial competition with
the air transportation business of the Company or any of its subsidiaries, then
(a) if benefits under this Plan shall have not yet commenced, no
benefits shall be paid under this Plan to such Key Employee, his or her Spouse,
Eligible Family Member or beneficiary;
(b) if benefits under this Plan have commenced, no further
benefits shall be paid;
(c) if benefits under this Plan shall have not yet commenced, and
if the Key Employee has established an Employee Grantor Trust (as defined in
Section 7), within 30 days after the Committee makes a determination hereunder,
the Key Employee, or his or her Spouse, shall repay the Company in cash an
amount equal to the Liquidated Damages (as defined below); and
(d) if benefits under this Plan have commenced, and if the Key
Employee has established an Employee Grantor Trust, within 30 days after the
Committee makes a determination hereunder, the Key Employee, or his or her
Spouse, shall repay the Company in cash an amount equal to the Liquidated
Damages less the present value as of the date of repayment of the benefits
already paid under this Plan.
For purposes of this Section 6, "Liquidated Damages" shall mean the sum
of:
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(A) the sum of (x) all contributions (if any) made by the Company
to such trust, and (y) all related amounts with respect to such contributions
withheld by the Company for the purpose of satisfying tax withholding
requirements; and
(B) the amount that would have been earned with respect to such
contributions had such amounts been invested in an interest-bearing account,
compounded annually, using an interest rate equal to the sum of (i) the prime
rate as published in the Wall Street Journal on the date such contribution was
made to the trust and (ii) 2%.
Because of the broad and extensive scope of the Company's air
transportation business, the restrictions contained in this provision are
intended to extend to management or executive services which are directly
related to the provision of air transportation services into, within or from the
United States, as no smaller geographical restriction will adequately protect
the legitimate business interest of the Company.
SECTION 7
Funding of Benefit. The benefits provided by this Plan shall be paid,
as they become due, from the Company's general assets or by such other means as
the Company deems advisable. To the extent Key Employees acquire the right to
receive payments from the Company under this Plan, such right shall be no
greater than that of a general creditor of the Company. In the event that the
Company, in its sole discretion, establishes a reserve or bookkeeping account
for benefits payable under this Plan, the Key Employees shall have no
proprietary or security interest in any such reserve or account. The Company may
create a trust or trusts in order to fund the benefits
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created hereunder. Benefits shall be payable from such trusts only as and to the
extent provided therein. Any benefit payable under the terms of this Plan shall
be subject to offset and reduction as provided in a Key Employee's Excess
Benefit Agreement by amounts in, or deemed to be in, any Employee Grantor Trust
established by such Key Employee in accordance with such Agreement.
SECTION 8
Nonassignability of Benefits. No benefit payable under this Plan may be
assigned, transferred, encumbered or subjected to any legal process for the
payment of any claim against any Key Employee or his or her Spouse.
SECTION 9
No Right to Continued Employment. Nothing in this Plan shall be deemed
to give any Key Employee the right to be retained in the service of the Company.
SECTION 10
Administration of Plan. The Committee shall have full power and
authority to administer this Plan. The Committee and its agents shall not be
liable to any person for any action taken or omitted in connection with the
administration of this Plan. If any Key Employee who is denied benefits under
this Plan believes he is entitled to benefits hereunder, he may request in
writing, a review of the denial by the Committee or its designee within 60 days
of receiving written notice of the denial. If no request for review is received
by the Committee within 60 days of the receipt of the written denial, the denial
shall be final and binding upon the Company and the Key Employee.
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The Committee shall respond in writing to a written request for review within 60
days of receipt of such request.
Any controversy or claim arising out of, or relating to this Plan, any
Excess Benefit Agreement entered between the Company and a Key Employee, or any
trust established under Section 7, which is not settled by agreement between the
Company and the affected Key Employee, shall be settled by a single arbitrator
to be named by agreement between the Company and such Key Employee or, if the
parties cannot agree within thirty (30) days of a request for arbitration, by an
arbitrator appointed by the American Arbitration Association at the request of
either party. Such arbitration shall be conducted in Atlanta, Georgia, in
accordance with the Federal Arbitration Act and the Rules of the American
Arbitration Association. The Company, the Key Employee, and his or her Spouse,
if any, and the trustee of any trust established under Section 7 shall be bound
by the award rendered in such arbitration, and judgment under the award may be
entered in any court having jurisdiction. All reasonable expenses (including,
without limitation, legal fees and expenses) incurred by the Key Employee in
connection with, or in prosecuting or defending, any claim or controversy
arising out of or relating to this Plan shall be paid by the Company, unless the
Key Employee fails to recover any benefits in such claim or controversy and the
Company receives a written opinion of independent legal counsel, selected by the
Board of Directors of the Company, to the effect that such expenses were not
incurred by the Key Employee in good faith. Pending any such determination, such
expenses shall be paid by the Company on a monthly basis upon submission of
invoices for such expenses and upon an undertaking by the Key Employee to repay
to the Company amounts so advanced if the Key Employee is not awarded any
benefits in any such claim or controversy and it is also determined
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by such independent legal counsel that the expenses were not incurred by the Key
Employee in good faith. If a Key Employee is not alive, the right and
obligations to arbitrate any and all claims or controversies arising out of this
Plan, or any Excess Benefit Agreement or trust described above, shall pass to
the surviving Spouse affected by such claim or controversy who shall be bound by
the requirements stated herein. The Company hereby stipulates that this Plan
evidences a transaction involving commerce and that arbitration is the exclusive
remedy for any dispute arising out of this Plan, any Excess Benefit Agreement
entered into between the Company and a Key Employee, or any trust established
under Section 7.
SECTION 11
Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to its conflict
of laws rules.
SECTION 12
Successors. This Plan shall be binding upon the successors of the
Company.
SECTION 13
Notice. All notices, requests, demands and other communications under
this Plan, shall be in writing and shall be delivered personally (including by
courier) or mailed by certified mail, return receipt requested. Refusal to
acknowledge receipt of such notice shall constitute receipt of such notice upon
the date it is returned to the sender. Any notice under this Plan shall be sent
to Key Employee, Spouse, his Eligible Family Member or beneficiary at the last
known address of such person as reflected in the Company's records. Notice to
the Company or the Committee shall be sent to:
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Delta Air Lines, Inc.
Law Department
1030 Delta Boulevard
Atlanta, Georgia 30320
Attention: Senior Vice President-General Counsel
SECTION 14
Amendment and Termination. This Plan may be terminated or amended by
resolution of the Company's Board of Directors, but no such termination or
amendment shall affect benefits under an Excess Benefit Agreement entered into
by the Company under this Plan without the written consent of the Key Employee
that is a party to such Agreement.
SECTION 15
Change In Control. In the event of a Change In Control, as defined
below, a Key Employee's rights shall be determined under his or her Excess
Benefit Agreement.
For purposes of this Plan, a Change In Control means, and shall be
deemed to have occurred upon, the first to occur of any of the following events:
(a) Any Person (other than an Excluded Person)
acquires, together with all Affiliates and Associates of such
Person, Beneficial Ownership of securities representing 20% or
more of the combined voting power of the Voting Stock then
outstanding, unless such Person acquires Beneficial Ownership
of 20% or more of the combined voting power of the Voting
Stock then outstanding solely as a result of an acquisition of
Voting Stock by the Company which, by reducing the Voting
Stock outstanding, increases the proportionate Voting Stock
beneficially owned by
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such Person (together with all Affiliates and Associates of
such Person) to 20% or more of the combined voting power of
the Voting Stock then outstanding; provided, that if a Person
shall become the Beneficial Owner of 20% or more of the
combined voting power of the Voting Stock then outstanding by
reason of such Voting Stock acquisition by the Company and
shall thereafter become the Beneficial Owner of any additional
Voting Stock which causes the proportionate voting power of
Voting Stock beneficially owned by such Person to increase to
20% or more of the combined voting power of the Voting Stock
then outstanding, such Person shall, upon becoming the
Beneficial Owner of such additional Voting Stock, be deemed to
have become the Beneficial Owner of 20% or more of the
combined voting power of the Voting Stock then outstanding
other than solely as a result of such Voting Stock acquisition
by the Company;
(b) During any period of two consecutive years
(not including any period prior to January 1, 2002),
individuals who at the beginning of such period constitute the
Board (and any new Director, whose election by the Board or
nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the Directors
then still in office who either were Directors at the
beginning of the period or whose election or nomination for
election was so approved), cease for any reason to constitute
a majority of Directors then constituting the Board;
(c) A reorganization, merger or consolidation of
the Company is consummated, in each case, unless, immediately
following such reorganization,
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merger or consolidation, (i) more than 50% of, respectively,
the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation
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 of the Voting
Stock outstanding immediately prior to such reorganization,
merger or consolidation, (ii) no Person (but excluding for
this purpose any Excluded Person and any Person beneficially
owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 20% or more of the
voting power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members
of the Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation; or
(d) The shareholders of the Company approve (i) a
complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to any corporation with
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respect to which, immediately following such sale or other
disposition, (A) more than 50% 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 of the Voting
Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this
purpose any Excluded Person and any Person beneficially
owning, immediately prior to such sale or other disposition,
directly or indirectly, 20% or more of the voting power of the
outstanding Voting Stock) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of such corporation or the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the
board of directors of such corporation were members of the
Board at the time of the execution of the initial agreement or
action of the Board providing for such sale or other
disposition of assets of the Company.
Notwithstanding the foregoing, in no event shall a "Change In Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Key Employee, if Key Employee is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as in effect
on August 1, 1997, which consummates the Change In Control transaction. In
addition, for purposes of the definition of "Change In Control" a Person engaged
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in business as an underwriter of securities shall not be deemed to be the
"Beneficial Owner" of, or to "beneficially own," any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such acquisition.
As used in the above definition, "Person" shall mean an individual,
corporation, partnership, association, trust or any other entity or
organization. "Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan of the
Company, any of its Subsidiaries or a Holding Company; or (v) any Person
organized, appointed or established by the Company, any of its Subsidiaries or a
Holding Company for or pursuant to the terms of any plan described in clause
(iv). "Affiliate" and "Associate" have the respective meanings accorded to such
terms in Rule 12b-2 under the Exchange Act as in effect on August 1, 1997. A
Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
"beneficially own," securities pursuant to Rule 13d-3 under the Exchange Act as
in effect on August 1, 1997. "Voting Stock" means securities of the Company
entitled to vote generally in the election of members of the Board. "Board"
means the Board of Directors of the Company. "Exchange Act" means the Securities
Exchange Act of 1934, as amended. "Holding Company" means an entity that becomes
a holding company for the Company or its businesses as a part of any
reorganization, merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined voting power
of the then outstanding voting securities of such entity entitled to vote
generally in the election of directors is, immediately after such
reorganization, merger, consolidation or other transaction, beneficially owned,
directly or indirectly, by all or substantially
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all of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in substantially the
same proportions as their ownership, immediately prior to such reorganization,
merger, consolidation or other transaction, of such outstanding Voting Stock.
This Plan is hereby executed as of the date shown below, pursuant to
authorization by the Board of Directors of the Company.
DELTA AIR LINES, INC.
By:
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Leo F. Mullin
Chairman of the Board and
Chief Executive Officer
Date
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