EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is hereby entered into by and between US
AIRWAYS, INC., a Delaware corporation having its principal place of business at
Crystal Park Four, 2345 Crystal Drive, Arlington, Virginia 22227 (the "Company")
and ALAN W. CRELLIN (the "Executive"), as of the 27th day of September, 2005.
W I T N E S S E T H
WHEREAS, the Executive has the responsibilities and duties of the position
of Executive Vice President-Operations for the Company; and
WHEREAS, the Board and the Human Resources Committee of the Board believe
it to be in the best interests of the Company to enter into this Agreement to
properly document the terms and conditions of the Executive's employment with
the Company including, but not limited to, the duties and obligations of the
parties under circumstances in which there is a Change of Control of the
Company;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the Company and the Executive hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Accrued Obligations shall mean any amounts of Reduced Base Salary plus
any accrued and unused vacation pay that has been earned but not yet paid by the
Company, determined as of the Executive's Date of Termination.
1.2 Agreement shall mean this Employment Agreement between the Company and
the Executive.
1.3 Affiliate shall mean any parent, brother-sister or subsidiary
corporation of the Company, any joint venture in which the Company owns at least
a 50 percent interest, and any partnership, limited liability partnership or
limited liability corporation in which the Company or any of its wholly-owned
Affiliates owns at least a 50 percent interest.
1.4 Base Salary shall mean the basic rate of pay and does not include any
additional compensation in the form of benefits or perquisites and does not
include any reductions to the basic rate of pay.
CRELLIN EMPLOYMENT AGREEMENT Page 1
1.5 Board shall mean the Board of Directors of Group or the Board of
Directors of the Company, as applicable.
1.6 Cause shall mean:
(a) willful and continued failure to substantially perform his
duties with the Company within fifteen (15) days after a written demand for
substantial performance is delivered to the Employee which identifies the manner
in which the Company believes that the Employee has not substantially performed
his duties;
(b) unlawful or willful misconduct which is economically injurious
to, or injurious to the reputation or good will of, the Company or to any entity
in control of, controlled by or under common control with the Company (and its
successors);
(c) indictment for or conviction of, or a plea of guilty or nolo
contendere, to a felony charge;
(d) habitual drug or alcohol abuse that impairs the Employee's
ability to perform the essential duties of his position; or
(e) embezzlement, fraud or any other illegal act against the Company
or any illegal act committed in connection with the Executive's performance of
his duties.
1.7 Change of Control shall mean the occurrence of any of the following
events on or after the Effective Date of this Agreement:
(a) Acquisition of Substantial Percentage. The acquisition by an
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 ("the 1934 Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
1934 Act) of 30% or more of either (i) the then outstanding shares of common
stock of the Company's parent, US Airways Group, Inc. ("Group")(the
"Outstanding Group Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of Group entitled to vote generally in the
election of directors (the "Outstanding Group Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change of
Control:
(1) any acquisition directly from Group;
(2) any acquisition by Group or any of its subsidiaries;
(3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by Group or any of its subsidiaries;
(4) any acquisition by any corporation with respect to which,
following such acquisition, more than 85% 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
CRELLIN EMPLOYMENT AGREEMENT Page 2
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were beneficial owners, respectively,
of the Outstanding Group Common Stock and Outstanding Group Voting
Securities in substantially the same proportions as their ownership,
immediately prior to such acquisition, of the Outstanding Group
Common Stock and Outstanding Group Voting Securities, as the case
may be; or
(5) any acquisition by an individual, entity or group that, pursuant
to Rule 13d-1 promulgated under the 1934 Act, is permitted to, and
actually does, report its beneficial ownership of Outstanding Group
Common Stock and Outstanding Group Voting Securities on Schedule 13G
(or any successor Schedule); provided further, that if any such
individual, entity or group subsequently becomes required to or does
report its ownership of Outstanding Group Common Stock and
Outstanding Group Voting Securities on Schedule 13D (or any
successor Schedule) then, for purposes of this Section, such
individual, entity or group shall be deemed to have first acquired,
on the first date on which such individual, entity or group becomes
required to or does so file, beneficial ownership of all of the
Outstanding Group Common Stock and Outstanding Group Voting
Securities beneficially owned by it on such date; or
(b) Change of Majority of Board Members. Individuals who, as of the
Effective Date of this Agreement, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by Group's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the 1934 Act) or
other actual or threatened solicitation of proxies or consents; or
(c) Reorganization, Merger or Consolidation. There is consummated a
reorganization, merger or consolidation, in each case, with respect to which
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Group Common Stock and
Outstanding Group Voting Securities immediately prior to such reorganization,
merger or consolidation, beneficially own, directly or indirectly, less than
85% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or consolidation (or
any parent thereof) in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation of the
Outstanding Group Common Stock and the Outstanding Group Voting Securities,
as the case may be; or
(d) Disposition of Assets. Approval by the shareholders of Group of
a complete liquidation or dissolution of Group or the consummation of the
sale or other
CRELLIN EMPLOYMENT AGREEMENT Page 3
disposition of all or substantially all of the assets of Group,
other than to a corporation with respect to which, following such sale or
other disposition, more than 85% 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, respectively, of the Outstanding Group Common
Stock and Outstanding Group Voting Securities immediately prior to such sale
or other disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding Group
Common Stock and Outstanding Group Voting Securities, as the case may be.
1.8 Change of Control Date shall mean the first date on which a Change of
Control occurs.
1.9 Change of Control Period shall mean the period beginning on the Change
of Control Date and ending on the day two (2) years thereafter.
1.10 Company shall mean US Airways, Inc., a Delaware corporation, and its
Affiliates, including its successors and assigns.
1.11 Date of Termination means final date of the Executive's employment.
1.12 Disability shall mean a mental or physical impairment or injury of
the Executive which is determined to result in his total and permanent inability
to perform the essential functions of his position without reasonable
accommodation, as determined by the Board of Directors based on professional
medical and/or psychological opinions, or the Executive's eligibility to receive
disability benefits under the terms and conditions of the Company's long-term
disability policy, based on an "own occupation" definition under the policy
1.13 Effective Date shall mean the date of the emergence of Group and the
Company from the protection of the U.S. Bankruptcy Court, as defined by
Paragraph 1.63 of the Joint Plan of Reorganization of US Airways Group, Inc. and
its Affiliated Debtors, dated August 9, 2005, as amended and confirmed by that
certain Findings of Fact, Conclusions of Law and Order Confirming the Joint Plan
of Reorganization, dated September 16, 2005.
1.14 Good Reason shall mean:
(a) the assignment to the Executive of any duties materially
inconsistent with the Executive's position, authority, duties or
responsibilities as contemplated by this Agreement, or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities; provided, that the Executive has delivered a written
notice to the Company which identifies the manner in which the Executive
believes that the assignment or other Company action would meet the provisions
of this paragraph, and the Company has had at least fifteen (15) days following
delivery of the written notice to correct the assignment or action and has not
done so;
(b) the failure by the Company to reelect the Executive to a
position with materially similar or greater duties than the position held by the
Executive on the Effective Date;
CRELLIN EMPLOYMENT AGREEMENT Page 4
provided, that the Executive has delivered a written notice to the Company which
identifies the manner in which the Executive believes that the Company action
would meet the provisions of this paragraph, and the Company has had at least
fifteen (15) days following delivery of the written notice to correct the action
and has not done so;
(c) any material failure by the Company to comply with the material
provisions of this Agreement; provided that the Executive has delivered a
written notice to the Company which identifies the manner in which the Executive
believes that the Company has failed to meet the material provisions of this
Agreement, and the Company has had at least fifteen (15) days following delivery
of the written notice to correct any such failure and has not done so;
(d) after a Change of Control Date, any failure of the Company (i)
to pay Reduced Base Salary, (ii) to maintain the Executive's Annual Bonus and
Long-Term Incentive Plan target percentages at the same level as immediately
prior to the Change of Control, (iii) to maintain and contribute to the EDCP (as
defined in Section 4.6 hereof) pursuant to the plan document and this Agreement,
(iv) to provide travel privileges to the Executive and his family as in effect
prior to the Change of Control Date or at least equivalent to travel privileges
provided to other Key Employees, (v) to provide the Executive with the same
amount of vacation or paid time off as he had prior to the Change of Control,
and (vi) to provide the Executive and the Executive's family with any other
employee benefit plans, programs, policies and practices at a level comparable
to that provided to other active Key Employees of the Company;
(e) the Company's requiring the Executive to be based at any office
or location further than a fifty (50) mile radius from the Washington, D.C.
metropolitan area, except for travel reasonably required in the performance of
the Executive's responsibilities;
(f) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(g) any failure by the Company to comply with and satisfy the
successor provisions of Section 11.3 of this Agreement.
1.15 Group shall mean U.S. Airways Group, Inc., the parent of the Company.
1.16 Key Employee shall mean any Executive Vice President of the Company
or, in the event of a Change of Control, any officer of a similar level of
responsibility.
1.17 Notice of Termination shall mean a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the Date of Termination (which
date shall be not more than fifteen (15) days after the giving of such notice).
1.18 Proprietary Information shall mean information that meets the
definition of "trade secret" under the laws of the State of Delaware, as well as
any scientific or technical information, design, process, procedure, formula or
improvement that is secret and of value, information that
CRELLIN EMPLOYMENT AGREEMENT Page 5
Group and/or the Company takes reasonable efforts to protect from disclosure and
from which Group and/or the Company derives actual or potential economic value
due to its confidential nature, including, but not limited to, technical or
nontechnical data, formulas, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, lists of actual or potential
customers, price lists, business plans, customer and vendor records, training
and operations materials and memoranda, personnel records, financial information
relating to the business of Group and the Company, accounts, customers, vendors,
employees and affairs of Group and the Company, and any information marked
"confidential" by Group and/or the Company.
1.19 Reduced Base Salary shall mean the Executive's Base Salary as reduced
pursuant to Company agreements with unions, Company executive compensation
guidelines or agreements between the Executive and the Company.
1.20 Term shall mean the period during which this Agreement is effective.
The Term of this Agreement is described in Article III hereof.
ARTICLE II
DUTIES AND RESPONSIBILITY
2.1 Duties and Authority. The Executive is engaged and agrees to perform
services for and on behalf of the Company as its Executive Vice
President-Operations and shall report directly to the Chief Executive Officer.
The Executive shall have such duties and responsibilities as may be assigned to
him by the Company's bylaws or by the Chief Executive Officer. The Executive
agrees to perform such duties diligently and efficiently and in accordance with
the reasonable directions of the Chief Executive Officer. The Executive shall
conduct himself at all times in a business-like and professional manner as
appropriate for his position and shall represent the Company in all respects in
compliance with good business and ethical practices. In addition, the Executive
shall be subject to and abide by the policies and procedures of the Company
applicable to personnel of the Company, as may be adopted from time to time.
2.2 Best Efforts. During his employment with the Company, excluding any
periods of vacation and sick leave to which the Executive is entitled, subject
to the provisions of Section 2.3 below, the Executive shall devote his full
attention, energies and best efforts to rendering services on behalf of the
Company (or its Affiliates) and shall not engage in any outside employment
without the express written consent of the Board.
2.3 Outside Activities. During his employment, it shall not be a violation
of this Agreement for the Executive to (A) serve on corporate, civic or
charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) invest or trade in
stocks, bonds, commodities or other forms of investment, including real property
if the Executive does not "participate" (within the meaning of Treas. Reg.
Sections 1.469-5(f) and 1.469-5T(f)) in such investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. The Executive may also participate in any interest or activity
CRELLIN EMPLOYMENT AGREEMENT Page 6
which is approved in writing by the Board. At least once each year during this
Agreement, and at any time upon the Board's request, the Executive shall provide
a full disclosure to the Corporate Governance Committee of the Board of his
participation in any corporate, civic and charitable activities (including
service on corporate or charitable boards of directors or trustees). Prior to
pursuing or accepting any board membership, teaching position or any other
activity which will require a significant portion of the Executive's time (other
than those in which he is engaged on the Effective Date), the Executive agrees
to discuss such activity with the Human Resources Committee of the Board.
2.4 No Violation of Other Agreement. By execution of this Agreement, the
Executive hereby warrants and represents to the Company that his acceptance of
this employment arrangement and his performance of the duties and
responsibilities described hereunder will not cause him to violate the terms and
conditions of any obligation or agreement to which he is a party and will not
expose the Company to any liability in connection with any such obligation or
agreement.
ARTICLE III
AT WILL EMPLOYMENT
3.1 At Will Employment. Prior to a Change of Control, this Agreement shall
not have a specified Term. The employment relationship between the Executive and
the Company is one of "at-will employment," which provides that either party to
the Agreement may terminate the Agreement at any time for any reason. The
parties hereto agree that in the event either desires to terminate the
Agreement, the terminating party shall provide the other party written notice of
the termination.
3.2 Automatic Term Provisions Upon Change of Control. As of a Change of
Control Date, this Agreement automatically shall become effective for a two (2)
year Term from that date and shall terminate on the close of business on the
date two (2) years following the Change of Control Date, unless earlier
terminated by the parties pursuant to the provisions hereof.
ARTICLE IV
COMPENSATION AND BENEFITS
4.1 Base Salary. The Company agrees that the Executive's annual Base
Salary is $425,000, which does not include any benefits or perquisites or
reductions. Notwithstanding the foregoing, the Company and the Executive have
agreed to reductions to the Base Salary, which will result in the Executive
receiving an annual Reduced Base Salary of $317,475. Base Salary and Reduced
Base Salary shall be reviewed at least annually by the Human Resources Committee
of the Board and may be increased from time to time based upon performance.
CRELLIN EMPLOYMENT AGREEMENT Page 7
4.2 Emergence Cash Bonus. Upon the earlier of (a) the date of emergence of
Group and the Company from protection of the U.S. Bankruptcy Court, or (b)
December 31, 2005, if the Executive remains employed on such earlier date, the
Company may, at its discretion, provide the Executive a cash bonus in an amount
to be determined by the Human Resources Committee.
4.3 Equity Incentives.
(a) Restricted Stock Award. If the Executive remains employed by the
Company at the time of emergence of Group and the Company from protection of
the U.S. Bankruptcy Court, the Company may, in its discretion, grant to the
Executive shares of Restricted Stock under the terms of the Company's 2004
Omnibus Stock Incentive Plan (the "Omnibus Plan") or any successor plan, in
an amount to be determined by the Human Resources Committee. This grant of
Restricted Stock shall be made effective as of the date of emergence and
shall vest and become transferable as follows: 50% of the Restricted Stock
shall become vested and nonforfeitable as of the date of grant, and 25% of
the Restricted Stock shall become vested and nonforfeitable on each of the
next two anniversaries of such date of emergence.
(b) Stock Option Grant. If the Executive remains employed by the
Company at the time of emergence of Group and the Company from protection of
the U.S. Bankruptcy Court, the Company may, in its discretion, grant to the
Executive a nonqualified stock option for shares of the Company's common
stock, under the terms of the Company's 2004 Omnibus Stock Incentive Plan or
any successor plan, in an amount to be determined by the Human Resources
Committee. This stock option shall be granted effective as of the date of
emergence, shall have a per share exercise price equal to the per share fair
market value of the common stock on the date of grant, and shall become
exercisable as follows: 50% of the nonqualified stock option shall become
exercisable as of the date of grant, and 25% of the nonqualified stock option
shall become exercisable on each of the next two anniversaries of such date
of emergence.
(c) Future Grants and Awards. The Executive shall remain eligible to
receive future grants and awards of restricted stock, options or any other
equity-based grants or awards as may be made under the terms of the Omnibus
Plan or any successor plan, as may be determined from time to time by the
Human Resources Committee. Following a Change of Control, the Executive shall
receive equity-based grants and awards at a level comparable and with vesting
and exercisability comparable to any regular and normal course grants and
awards made to other Key Employees of the Company.
4.4 Annual Bonus. The Executive shall be eligible to participate in the
Company's annual cash bonus program under the Company's Incentive Compensation
Plan, as determined by the Human Resources Committee of the Board or any other
annual bonus plan hereafter approved by the Board ("Incentive Plan"). The annual
bonus under this Section 4.4 shall hereinafter be referred to as the "Annual
Bonus."
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4.5 Long-Term Incentive Plan. The Executive shall be eligible to
participate in the long-term incentive program under the Company's Long-Term
Incentive Plan, as determined by the Human Resources Committee of the Board or
any other long-term incentive plan hereafter approved by the Board ("LTIP").
4.6 Retirement Plans. The Executive shall be eligible to participate in
the US Airways Group, Inc. Funded Executive Defined Contribution Plan and the US
Airways Group, Inc. Unfunded Executive Defined Contribution Plan (the "EDCPs").
While participating in the EDCPs, the Executive shall not be eligible to receive
allocations of any employer contributions under any tax-qualified retirement
plan or to participate in any other nonqualified retirement or deferred
compensation plan sponsored by the Company or Group. EDCP payments reduced after
October 11, 2004 shall be restored in monthly installments over a two-year
period beginning on October 12, 2006 (the "Restoration Payments"), as long as
the Executive remains employed by the Company. Notwithstanding the foregoing, in
the event that the Executive terminates employment at any time before
commencement of the Restoration Payments or during the period that Restoration
Payments are being made due to (i) death, (ii) Disability, (iii) termination by
the Company without Cause, or (iv) termination by the Executive due to Good
Reason, then the Executive shall be immediately eligible to receive a lump sum
payment equivalent to the present value of the Restoration Payments. If the
Executive terminates employment due to termination by the Company for Cause or
due to the Executive's voluntary termination, then no Restoration Payments shall
be made to the Executive's account (and/or directly to the Executive), and if
Restoration Payments have already commenced, such payments shall cease as of the
Date of Termination.
4.7 Welfare and Fringe Benefit Plans. During his employment with the
Company, the Executive shall be eligible to participate in the Company's welfare
and fringe benefit plans pursuant to the Company's plans and policies as in
effect for active Key Employees from time to time. The Company reserves the
right to amend or terminate any of its welfare and fringe benefit plans and
policies (including but not limited to coverages and premium structures) at any
time.
4.8 Business Expenses. During his employment with the Company, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the expense reimbursement
policies and procedures of the Company applicable to other active Key Employees.
4.9 Withholding, FICA, FUTA, Etc. Any amount to be paid to the Executive
under the provisions of this Agreement which represents taxable income shall be
subject to, and reduced by, any applicable federal, state or local taxes imposed
by law, included, but not limited to, taxes imposed under Subtitle C of the
Code.
ARTICLE V
TERMINATION OF EMPLOYMENT
5.1 Termination of Employment. The Executive's employment and this
Agreement shall be terminated as follows:
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(a) Death: Immediately upon the date of death of the Executive;
(b) Disability: On the tenth (10th) day following written notice
provided by the Board to the Executive that his employment is being terminated
due to the Executive's Disability;
(c) Termination by Company for Cause: Immediately upon the date of
written notice provided by the Board to the Executive that his employment is
being terminated for "Cause";
(d) Termination by Company Without Cause: Immediately upon the date
specified in a written notice provided by the Board to the Executive that his
employment is being terminated without Cause; or
(e) Termination by Executive for Good Reason: Immediately upon the
date specified in a written notice provided by the Executive to the Board that
his employment is being terminated for Good Reason (following any applicable
notice and period for cure as required by the definition of Good Reason);
provided, that if the Executive is terminating for Good Reason due to relocation
as described in Section 1.14(e), the Executive shall provide the Company no less
than thirty (30) days' advance written notice, unless the Company affirmatively
waives such 30-days' advance notice requirement; or
(f) Voluntary Resignation by Executive: Upon the date specified in a
written notice provided by the Executive to the Board that he is voluntarily
resigning and terminating his employment, which specified date shall be at least
fifteen (15) business days following the date of delivery of the notice, unless
the parties mutually agree to an earlier or later termination date.
5.2 Notice of Termination. Any termination by the Company for Cause or by
the Executive for Good Reason shall be communicated by Notice of Termination to
the other party hereto given in accordance with Sections 5.1(e) and 12.2 of this
Agreement. The failure by the Company or the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Cause or Good Reason shall not waive any right of the Company or the Executive
or preclude the Company or the Executive from asserting such fact or
circumstance in enforcing the terms of this Agreement.
ARTICLE VI
OBLIGATIONS OF THE COMPANY UPON TERMINATION
6.1 Termination Due to Death. If the Executive's employment is terminated
by reason of the Executive's death, this Agreement shall terminate without
further obligations to the Executive's estate, other than (i) Accrued
Obligations that the Executive has accrued or earned as of the Date of
Termination, (ii) any earned but unpaid Annual Bonus from the year prior to the
Date of Termination, and (iii) in the event Annual Bonuses are actually paid to
executives for the year in which the Executive's death occurs, a prorated bonus
equal to the product of the amount of Annual Bonus that the Executive would have
earned at the end of the year times a fraction, the
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numerator of which is the number of days in the current year through the Date of
Termination and the denominator of which is 365. The Accrued Obligations shall
be paid to the Executive's estate in a lump sum in cash within 30 days following
the Date of Termination, and the amount of any Annual Bonus payable to the
Executive's estate shall be payable at the same time that Annual Bonuses are
paid to other executives.
6.2 Termination Due to Disability. If the Executive's employment is
terminated due to the Executive's Disability, this Agreement shall terminate as
of the Date of Termination without further obligations to the Executive, other
than (i) Accrued Obligations that the Executive has accrued or earned as of the
Date of Termination, (ii) any earned but unpaid Annual Bonus from the year prior
to the Date of Termination, (iii) in the event Annual Bonuses are actually paid
to executives for the year in which the Executive's Disability occurs, a
prorated bonus equal to the product of the amount of Annual Bonus that the
Executive would have earned at the end of the year times a fraction, the
numerator of which is the number of days in the current year through the Date of
Termination and the denominator of which is 365, and (iv) disability and other
benefits (to the extent permitted by law or by the applicable insurance
policies) provided by the Company to disabled employees and/or their families,
as the same may change from time to time for Key Employees. The Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
following the Date of Termination and the amount of any Annual Bonus payable to
the Executive shall be payable at the same time that Annual Bonuses are paid to
other Key Employees.
6.3 Termination by the Company for Cause. If the Executive's employment is
terminated by the Company for Cause, this Agreement shall terminate without
further obligations to the Executive other than Accrued Obligations that the
Executive has accrued or earned as of the Date of Termination. All such Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
following the Date of Termination.
6.4 Voluntary Resignation by the Executive. If the Executive terminates
his employment by voluntary resignation (but not for Good Reason), this
Agreement shall terminate without further obligations to the Executive, other
than Accrued Obligations that the Executive has accrued or earned as of the Date
of Termination. All such Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days following the Date of Termination.
6.5 Termination by the Company Without Cause or Termination by Executive
for Good Reason.
(a) After the Effective Date, if the Company shall terminate the
Executive's employment without Cause, or if the Executive shall terminate his
employment for Good Reason, this Agreement shall terminate and the Company shall
pay and/or provide to the Executive the sum of the following:
(1) Accrued Obligations that the Executive had accrued or
earned as of the Date of Termination;
(2) 200% of the sum of:
(A) the Executive's Reduced Base Salary, plus
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(B) the Executive's target Annual Bonus (based on Reduced Base
Salary) if the Incentive Plan is then in effect for the year
in which the Date of Termination occurs, or if the Incentive
Plan (as described in Section 4.4 hereof), or any similar
annual bonus plan is not then in effect and its suspension or
termination constituted a Good Reason basis for the
Executive's termination of employment, then the Executive's
target Annual Bonus under the Incentive Plan immediately prior
to its suspension or termination;
provided however, that if the Executive terminates his
employment for Good Reason as specified in Section 1.14(e)
(relating to the Company's requiring the Executive to be based
at any office or location further than a fifty (50) mile
radius from the Washington, D.C. metropolitan area), the 200%
of Reduced Base Salary and target Annual Bonus shall be
reduced to 100% of such Reduced Base Salary and target Annual
Bonus.
(3) Health Insurance. Payment of a lump sum cash amount
equivalent to the cost of COBRA continuation premiums under the Company's
medical, dental, vision and prescription drug coverages (as applicable) for the
Executive and his covered dependents for eighteen (18) months following the Date
of Termination, regardless of whether the Executive and/or his covered
dependents actually elect COBRA continuation coverage; and
(4) Life Insurance. Continuation of existing life insurance
coverage for the Executive for eighteen (18) months following the Date of
Termination on the same premium and coverage basis as in effect on the Date of
Termination; provided that in the event the Company is not permitted to continue
the coverage on the same premium and/or coverage basis by the applicable carrier
or reinsurers, the Company shall pay the Executive a lump sum cash amount
equivalent to the amount of premiums the Company would have paid for the
coverage if the Executive had remained an active employee and the coverage
remained in effect on the same premium and coverage basis for the 18-month
period; and
(5) Travel Privileges. Immediate vesting and continuation for
the Executive's lifetime of on-line, first class, positive space travel
privileges for business and pleasure for the Executive and his eligible family
members, pursuant to the terms and conditions of the Company's travel policy for
active Key Employees; provided that the Company shall not provide any gross-up
payments to the Executive or his eligible family members for taxes payable on
such travel.
(6) Compliance with Code Section 409A. Any payments under this
subsection that are subject to the provisions of Code Section 409A shall be made
in accordance with those provisions, including the delay of at least six (6)
months for any severance payments if applicable.
(b) Protected Benefits. Notwithstanding any other provision of this
Agreement, if the Executive's termination of employment for any reason
follows the fifth
CRELLIN EMPLOYMENT AGREEMENT Page 12
anniversary of the Executive's date of employment with the Company, the
Executive shall be entitled to:
(1) Continuation of travel privileges on the same basis as
such benefits were provided to the Executive on the date prior to the
termination of employment, or if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter, with such travel
privileges to continue for the life of the Executive;
(2) Continuation of health insurance benefits in the Company's
health insurance program (as the same may change from time to time) until the
Executive reaches age 65 provided that the Executive continues to pay monthly
premiums at the same time and at the same premium rate applicable to active
employees; and provided further, however, that if the Executive should become
eligible for health insurance through a subsequent employer, the Company's
provision of such benefits shall be secondary to the benefit coverage of the
subsequent employer;
(3) a lump sum cash payment in the amount of $70,180,
representing the present value of post-age 65 lifetime medical benefits in lieu
of those benefits, and
(4) a lump sum cash payment equal to the difference between
the value of the accrued and unused vacation that was paid to the Executive at
the end of the year 2000 and the value that such accrued and unused vacation
would have been if calculated at his current rate of Base Salary as of the Date
of Termination.
ARTICLE VII
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
7.1 Gross-Up Payment. In the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section), including, but not limited to, any amounts in
respect of (i) options to acquire shares of common stock and (ii) restricted
shares of common stock) (a "Payment"), would be subject to the excise tax
imposed by Section 4999 (or any successor provision thereto) of the Code or any
interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by the Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and employment
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon Payments.
7.2 Determinations by Independent Accountants. Subject to the provisions
of Section 7.3, all determinations required to be made under this Section 7,
including whether a Gross-Up
CRELLIN EMPLOYMENT AGREEMENT Page 13
Payment is required and the amount of such Gross-Up Payment, shall be made by a
firm of independent public accountants selected by Group prior to the Change of
Control (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within five (5) business days
of the Date of Termination, or such earlier time as is requested by the Company
or the Executive. In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change of Control,
the Executive may appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 7.2, shall be paid to the Executive upon the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or other penalty. Any determination by the Accounting
Firm shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code (or any successor
provision thereto) at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-up Payments which will not have been
made by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 7.3 and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment (together with interest and penalties
incurred by the Executive in connection therewith) that has occurred and any
such Underpayment shall be promptly paid by the Company to or for the benefit of
the Executive.
7.3 IRS Claims. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten (10) business days after the
Executive knows of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty-day
period following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(a) give the Company any information reasonably requested by the
Company relating to such claim,
(b) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(c) cooperate with the Company in good faith in order effectively to
contest such claim,
CRELLIN EMPLOYMENT AGREEMENT Page 14
(d) permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 7.3, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with respect thereto,
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder; whereas the Executive shall be entitled to settle or
contest, as the case may be, any other issued raised by the Internal Revenue
Service or any other taxing authority.
7.4 Refunds. If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 7.3, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 7.3) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 7.3, a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid. Notwithstanding any other provision of this Section 7.4, the Company
shall not make any advance or forgive any amount if such action would be deemed
to be a prohibited loan by the Company in violation of any provision of the
Sarbanes-Oxley Act of 2002 or any other law or regulation.
CRELLIN EMPLOYMENT AGREEMENT Page 15
ARTICLE VIII
NONEXCLUSIVITY OF RIGHTS
8.1 Notwithstanding any other provision of this Agreement, the Executive
(and/or as applicable, his spouse and/or dependents or his estate) shall be
entitled to any benefits or provisions provided by the specific terms and
conditions of any equity-based compensation plans, insurance policies, or
employee benefit plans or programs of the Company in which he participated as of
the Date of his Termination. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of Group, the Company or any of its Affiliates at or subsequent to the
Date of Termination shall be payable in accordance with the terms and conditions
of such plan, policy, practice or program.
ARTICLE IX
RESTRICTIVE COVENANTS
9.1 Use and Return of Documents and Property. Executive acknowledges that
in the course of his employment with the Company, he will have the opportunity
to inspect and use certain property, both tangible and intangible, of Group, the
Company and its Affiliates. All such property shall remain the exclusive
property of Group, the Company and its Affiliates, and Executive has and shall
have no right or interest in such property. Executive shall use Company property
only during employment and only in the performance of his job and to further the
Company's interests, and he will not remove Company property from the Company's
premises except to the extent necessary to perform his duties and to the extent
approved by the Company, either expressly or generally under its policies.
Promptly upon the Executive's Date of Termination, Executive shall return to the
Company all of the Company's property of any kind, including but not limited to,
business plans, financial records, computer hardware, computer software,
documents, data, books, memoranda, notes, sketches, audio-visual materials,
correspondence, lists, pricing information, customer and/or vendor lists or
information, and all other tangible property.
9.2 New Developments. Any discovery, invention, process or improvement
made or discovered by the Executive during his employment with the Company in
connection with or in any way affecting or relating to the business of Group,
the Company or any of its Affiliates (as then carried on or under active
consideration) shall forthwith be disclosed to the Company and shall belong to
and be the absolute property of the Company. The preceding sentence does not
apply to any invention for which no equipment, supplies, facility, trade secret
information of the Company was used and which was developed entirely on the
Executive's own time, unless the invention relates directly to the business of
Group, the Company or its Affiliates or to its or their actual or demonstrably
anticipated research or development, or the invention results from any work
performed by the Executive for the Company.
CRELLIN EMPLOYMENT AGREEMENT Page 16
9.3 Nonsolicitation of Customers. Executive agrees that during his
employment with the Company, he will not, directly or indirectly, without the
Company's prior written consent, contact any customer of the Company or any of
its Affiliates for business purposes unrelated to furthering the business of the
Company or its Affiliates. Executive further agrees that for a period of one (1)
year following his Date of Termination, he will not directly or indirectly, (i)
contact, solicit or divert, or attempt to contact, solicit, divert or take away,
any customer of the Company or its Affiliates for purposes of, or with respect
to, providing a customer to a competing business; or (ii) take any affirmative
action with a customer of the Company or its Affiliates for purposes of
providing a customer to a business competing with the Company or its Affiliates.
The prohibitions of the preceding sentence shall apply only to customers of the
Company with whom the Executive had Material Contact on the Company's behalf
during the twelve (12) months immediately preceding the Date of Termination. For
purposes of this Agreement, the Executive had "Material Contact" with a customer
if (a) he had business dealings with the customer on the Company's behalf; (b)
he was responsible for supervising or coordinating the dealings between the
Company and the customer; or (c) he obtained Proprietary Information about the
customer as a result of his association with the Company.
9.4 Nonsolicitation of Employees. The Executive agrees that during his
employment with the Company and for one (1) year after his Date of Termination,
the Executive will not, directly or indirectly, solicit or attempt to recruit or
hire any employees of the Company or its Affiliates who were employed by the
Company or its Affiliates at any time during the last year of the Executive's
employment with the Company and who are actively employed by the Company or its
Affiliates at the time of the solicitation or attempted solicitation, to provide
services similar to those performed by the employee for the Company on behalf
of, or for the purpose of engaging in employment with, a competitor of the
Company.
9.5 Nondisclosure of Trade Secrets and Proprietary Information. Except to
the extent reasonably necessary for Executive to perform his duties for the
Company, the Executive shall not, directly or indirectly, furnish or disclose to
any person, or use in any way, any trade secrets of the Company or its
Affiliates, for so long as such trade secrets remain "trade secrets" under
applicable state law. Except to the extent reasonably necessary for Executive to
perform his duties for the Company, Executive shall not, during his employment
with the Company or following the Executive's Date of Termination, directly or
indirectly, furnish or disclose to any person, or use in any way, for personal
benefit or the benefit of others, any Proprietary Information of the Company or
its Affiliates.
9.6 No Disparagement. The Executive agrees that he shall not make any
untrue or disparaging statement or criticism, written or oral, nor take any
action which is adverse to the interests of the Company or that would cause the
Company or its current and former officers, directors, or employees
embarrassment or humiliation or otherwise cause or contribute to such persons
being held in disrepute by the public or the Company's customers or employees.
From and after the Date of Termination, the Executive shall refrain from
discussing the terms and conditions of the termination of his employment with
any employee or customer of the Company or with any reporter, media contacts or
any form of public media, unless such communication is previously approved by
the General Counsel of the Company.
CRELLIN EMPLOYMENT AGREEMENT Page 17
9.7 Reasonableness. Executive has carefully considered the nature and
extent of the restrictions upon his and the rights and remedies conferred on the
Company under this Agreement, and Executive hereby acknowledges and agrees that:
(a) the restrictions and covenants contained herein, and the rights and
remedies conferred upon the Company, are necessary to protect the goodwill and
other value of the business of the Company;
(b) the restrictions places upon Executive hereunder are fair and
reasonable in time and territory, will not prevent him from earning a
livelihood, and place no greater restraint upon the Executive than is reasonably
necessary to secure the business and goodwill of the Company;
(c) the Company is relying upon the restrictions and covenants contained
herein in continuing to make available to Executive information concerning the
business of the Company;
(d) Executive's employment hereunder places him in a position of
confidence and trust with the Company and its employees, customers and
suppliers; and
(e) the provisions of this section shall be interpreted so as to protect
the Proprietary Information, and to secure for the Company the exclusive
benefits of the work performed on behalf of the Company by the Executive under
this Agreement, and not to unreasonably limit his ability to engage in
employment and consulting activities in noncompetitive areas which do not
endanger the Company's legitimate interests expressed in this Agreement.
9.8 Remedy for Breach. Executive acknowledges and agrees that his breach
of any of the covenants contained in this Article of this Agreement will cause
irreparable injury to the Company and that remedies at law available to the
Company for any actual or threatened breach by the Executive of such covenants
will be inadequate and that the Company shall be entitled to specific
performance of the covenants in this Article or injunctive relief against
activities in violation of this Article by temporary or permanent injunction or
other appropriate judicial remedy, writ or order, without the necessity or
proving actual damages. This provision with respect to injunctive relief shall
not diminish the right of the Company to claim and recover monetary damages
against the Executive for any breach of this Agreement, in addition to
injunctive relief. In the event of any breach by the Executive, the Company
shall be entitled to immediately cease any and all payments and benefits being
provided to the Executive and/or his family and to seek repayment from the
Executive of any severance payments previously paid to him under this Agreement.
The Executive acknowledges and agrees that the covenants contained in this
Article shall be construed as agreements independent of any other provision of
this or any other contract between the parties hereto, and that the existence of
any claim or cause of action by the Executive against the Company, whether
predicated upon this or any other contract, shall not constitute a defense to
the enforcement by the Company of said covenants.
CRELLIN EMPLOYMENT AGREEMENT Page 18
ARTICLE X
GENERAL RELEASE
10.1 No payment of any kind or provision of any benefit provided under
this Agreement shall be made by the Company to the Executive following his Date
of Termination prior to and unless the Executive executes a general release of
all claims that he, his family, heirs and assigns and any related persons or
entities may have against the Company. The release language shall be
substantially in the form attached as Exhibit "A" to this Agreement. It is
understood and agreed that the Executive's execution of the general release of
claims shall not include a release of (i) the right to payment of or provision
of coverage under any vested, nonforfeitable benefits to which the Executive (or
a beneficiary of the Executive) may be entitled under the terms and provisions
of any employee benefit plan, program, practice or policy of the Company as of
the Date of Termination; (ii) any rights to indemnification under the articles
or by-laws of the Company, (iii) rights under any policy of directors and
officers liability insurance that covers or has covered the Executive; and (iv)
any right or claim as a stockholder of the Company.
ARTICLE XI
SUCCESSORS
11.1 This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's estate.
11.2 This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
11.3 The Company shall require any successor and assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to assume expressly
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place.
ARTICLE XII
MISCELLANEOUS
12.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no
CRELLIN EMPLOYMENT AGREEMENT Page 19
force or effect. This Agreement may not be amended or modified otherwise than by
a written agreement executed by the parties hereto or their respective
successors and legal representatives.
12.2 Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive If to the Company:
Alan W. Crellin US Airways, Inc.
US Airways Group, Inc.
At Most Recent Address on File in 2345 Crystal Drive
Company Records Arlington, Virginia 22227
Attention: Executive Vice President,
General Counsel and Secretary
America West Holdings Corporation
111 West Rio Salado Parkway
Tempe, AZ 85281
Attention: Senior Vice President, General
Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
12.3 Invalidity of Any Provision. It is the intention of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws of each state and jurisdiction in which such
enforcement is sought, but that the unenforceability (or the modification to
conform with such laws) of any provision hereof shall not render unenforceable
or impair the remainder of this Agreement which shall be deemed amended to
delete or modify, as necessary, the invalid or unenforceable provisions. The
parties further agree to alter the balance of this Agreement in order to render
the same valid and enforceable. The terms of the restrictive covenant provisions
of this Agreement shall be deemed modified to the extent necessary to be
enforceable and, specifically, without limiting the foregoing, if the term of
the applicable restrictive covenant is too long to be enforceable, it shall be
modified to encompass the longest term which is enforceable and, if the scope of
the geographic area of the applicable restrictive covenant is too great to be
enforceable, it shall be modified to encompass the greatest area that is
enforceable.
12.4 Waiver of Breach. The waiver of a breach of any provision of this
Agreement by a party hereto shall not operate or be construed as a waiver of any
subsequent breach by the other party hereto.
CRELLIN EMPLOYMENT AGREEMENT Page 20
12.5 Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof. All understanding and
agreements (whether written or oral, including an oral offer of employment or
written offer letter) heretofore made between the parties hereto with respect to
the subject matter of this Agreement are superseded by this Agreement and this
Agreement alone fully and completely expresses all agreements between the
parties related to the subject matter. This Agreement may not be changed orally
but only by an amendment in writing signed by both parties. Upon execution of
this Agreement, the Executive hereby waives any rights and claims he may have
under any prior understandings and/or agreements related to his employment
(other than those preserved by Section 10.1 hereof), including but not limited
to any rejection damage claims provided under 11 U.S.C. Section 365.
12.6 Survival of Provisions. The provisions of Article IX - Restrictive
Covenants shall survive termination of this Agreement.
12.7 Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any provisions of this Agreement or in any way affect this
Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE:
________________________________________
ALAN W. CRELLIN
US AIRWAYS, INC.
By:______________________________________
Title: ___________________________________
CRELLIN EMPLOYMENT AGREEMENT Page 21
EXHIBIT "A"
GENERAL RELEASE
FOR AND IN CONSIDERATION of the payments and benefits provided to ALAN W.
CRELLIN (the "Executive") by US AIRWAYS, INC., a Delaware corporation (the
"Company") under the terms and conditions of that certain Employment Agreement
dated the 27th day of September, 2005, upon the Executive's Date of Termination,
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Executive does hereby, for and on behalf of himself, his
heirs, assigns and all related entities and persons ("Executive's Releasing
Parties"), fully and finally release, acquit and forever discharge the Company,
its officers, directors, employees and all related entities and persons, all
employee benefit plans of the Company and all employee benefit plans of their
related entities, and such plans' related entities and persons (collectively,
"Company Released Parties"), of and from any and all claims, counterclaims,
actions, causes of action, demands, rights, damages, costs, expenses or
compensation which the Executive's Releasing Parties now have, or may have, or
may hereafter claim to have had as of the Date of Termination, whether developed
or undeveloped, anticipated or unanticipated, based on any acts, omissions,
transactions or occurrences whatsoever occurring prior to and/or up until the
Date of Termination, and specifically, but not by way of limitation, from those
claims which are, or arise by reason of, or are in any way connected with, or
which are or may be based in whole or in part on the employment relationship
which existed between the Executive and the Company and the termination of that
employment relationship, including, without limitation, (i) those claims arising
under any foreign, federal, state, county or municipal fair employment practices
act and/or any law, ordinance or regulation promulgated by any foreign, federal,
state, county, municipality or other state subdivision; (ii) those claims for
breach of duty and/or implied covenant of good faith and fair dealing; (iii)
those claims for interference with and/or breach of contract (express or
implied, in fact or in law, oral or written); (iv) those claims for retaliatory
or wrongful discharge of any kind; (v) those claims for intentional or negligent
infliction of emotional distress or mental anguish; (vi) those claims for
outrageous conduct; (vii) those claims for interference with business
relationships, contractual relationships or employment relationships of any
kind; (viii) those claims for breach of duty, fraud, fraudulent inducement to
contract, breach of right of privacy, libel, slander, or tortious conduct of any
kind; (ix) those claims arising under Title VII of the Civil Rights Act of 1964
and/or the Civil Rights Act of 1991 and/or 42 U.S.C. Section 1981; (x) those
claims arising under any state or federal handicap or disability discrimination
law or act, including but not limited to the Rehabilitation Act of 1973 and the
Americans with Disabilities Act; (xi) those claims arising from any damages
suffered at any time by reason of the effects or continued effects of any
alleged or actual discriminatory or wrongful acts; (xii) those claims arising
under or in reliance upon any statute, regulation, rule or ordinance (local,
state or federal); (xiii) those claims arising under Employment Retirement
Income Security Act of 1974, as amended, and/or the Family and Medical Leave
Act; (xiv) those claims arising under the workers' compensation laws of any
state or other jurisdiction; and (xv) any and all other claims arising under law
or in equity in the United States of America or in any foreign jurisdiction.
The Executive hereby acknowledges that he is knowingly and voluntarily
waiving and releasing any rights he may have under ADEA and that the
consideration given under the Employment Agreement for this General Release is
in addition to anything of value to which he was already entitled. He further
acknowledges that he has been advised by this writing, as required by the ADEA,
that: (A) the waiver and release do not apply to any rights or claims that may
arise on or after the date he executes this Release; (B) he has the right to
consult with an attorney prior to executing this Release; (C) he has
CRELLIN EMPLOYMENT AGREEMENT Page 22
twenty-one (21) days to consider this Release (although he may choose to
voluntarily execute this Release earlier); (D) he has seven (7) days following
his execution of this Release to revoke the Release; and (E) this Release shall
not be effective until the date upon which the revocation period has expired,
which shall be the eighth day after he executes this Release.
Agreed to, acknowledged and executed by the Executive this ___________ day
of ____________________, 20______.
_____________________________________
Signature of Executive
*****
CRELLIN EMPLOYMENT AGREEMENT Page 23