EXHIBIT 10.53
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT"), dated as of February 24, 2004
(the "EFFECTIVE DATE"), by and among AMERICA WEST HOLDINGS CORPORATION, a
Delaware corporation ("HOLDINGS"), AMERICA WEST AIRLINES, INC., a Delaware
corporation and a wholly-owned subsidiary of Holdings ("AWA", and, together with
Holdings, "EMPLOYERS" and individually, an "EMPLOYER"), and W. DOUGLAS PARKER
("PARKER").
WHEREAS, Employers desire to employ Parker in an executive capacity and
Parker desires to serve in such capacity, all on the terms and conditions, and
for the consideration, set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following terms shall
have the following respective meanings:
"ACCOUNTING FIRM" shall have the meaning specified in Section 4.6(a).
"ADMINISTRATOR" shall have the meaning specified in Section 6.1.
"ANNUAL AWARD" shall have the meaning specified in Section 3.2.
"ARBITRATORS" shall have the meaning specified in Section 6.1.
"BASE SALARY" shall have the meaning specified in Section 3.1.
"BOARD" shall mean the Board of Directors of Holdings.
"CEO" shall mean, when used with reference to any Constituent Company, the
chief executive officer of such Constituent Company.
"CHAIRMAN" shall mean, when used with reference to any Constituent
Company, the Chairman of the board of directors of such Constituent Company.
Subject to the terms of Section 7.8(a) below, "CHANGE IN CONTROL" shall
occur on the first date after the Effective Date that any of the following
occur:
(i) the individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided,
1.
however, that any individual becoming a director subsequent to the Effective
Date whose election, or nomination for election by Holdings' stockholders, was
approved by a vote of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board; or
(ii) any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act), other than the Employers, acquires
(directly or indirectly) the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of more than 25% of the combined
voting power of the then outstanding voting securities of Holdings or AWA
entitled to vote generally in the election of directors ("Voting Power"); or
(iii) any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act), that is controlled (directly or
indirectly, through ownership share or voting power) by any former executive
officer(s) of Holdings either (a) acquires (directly or indirectly) the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 50% of the outstanding shares of Holdings Class A
Common Stock, or (b) elects or appoints one or more representatives to the
Board; or
(iv) Holdings or AWA shall consummate a merger, consolidation or
reorganization of Holdings or AWA or any other similar transaction or series of
related transactions (collectively, a "Transaction") other than (A) a
Transaction in which the voting securities of Holdings or AWA outstanding
immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent
corporation immediately after such Transaction that are owned by the same person
or entity or persons or entities as immediately prior thereto and possess at
least 75% of the Voting Power held by the voting securities of the surviving
corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Holdings or AWA (or similar transaction) in
which no person (excluding Holdings or AWA or any person who held more than 25%
of the Voting Power immediately prior to such Transaction) acquires more than
25% of the Voting Power;
(v) Holdings or AWA shall consummate a Transaction as a result of
which neither Holdings nor AWA survives as a publicly-owned corporation whose
common stock is registered under the Exchange Act; or
(vi) Holdings or AWA shall sell or otherwise dispose of, or
consummate a transaction or series of related transactions providing for the
sale or other disposition of, all or substantially all of the stock or assets of
AWA, or shall enter into a plan for the complete liquidation of either Holdings
or AWA.
"COBRA" shall have the meaning specified in Section 4.4( c).
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder as in effect from time to time.
"CONFIDENTIAL INFORMATION" shall have the meaning specified in Section
5.1(a).
2.
"CONSTITUENT COMPANIES" shall mean, collectively, Holdings and AWA and all
other direct or indirect subsidiaries of Holdings.
"DISABILITY" shall mean a physical or mental condition of Parker that, in
the good faith judgment of not less than a majority of the entire membership of
the Board, based upon certification by a licensed physician reasonably
acceptable to Parker and the Board, (i) prevents Parker from being able to
perform the essential functions of the services required under this Agreement,
(ii) has continued for a period of at least six months during any period of
twelve consecutive months and (iii) is expected to continue.
"DISPUTE" shall have the meaning specified in Section 6.1.
"EMPLOYMENT PERIOD" shall mean the period commencing on the Effective Date
and ending on the Expiration Date; provided, however, that if either Holdings or
Parker gives a Notice of Termination pursuant to Section 4.1 or 4.2, then the
Employment Period shall not extend beyond the relevant Termination Date.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXCISE TAX" shall have the meaning specified in Section 4.6.
"EXPIRATION DATE" shall mean December 31, 2007; provided, however, that
commencing on January 1, 2007 and on each January 1 thereafter, the Expiration
Date shall automatically be extended one additional year unless, not later than
the September 30 prior to such January 1, either party shall give written notice
to the other party that the Expiration Date shall cease to be so extended.
"GROSS-UP PAYMENT" shall have the meaning specified in Section 4.6.
"GOOD REASON" shall mean any of the following actions or failures to act,
but in each case only if it occurs during the Employment Period and then only if
it is not consented to by Parker in writing:
(i) a material diminution by an Employer in the nature or scope of
Parker's applicable titles, positions, functions, duties or responsibilities
described in Section 2.2, including any change which would alter Parker's
reporting responsibilities described in Section 2.2; provided, however, that
each such alteration shall cease to be a Good Reason on the date that is 180
days after the occurrence of such alteration unless, prior to such date, Parker
gives a Notice of Termination pursuant to Section 4.1 on account of such
alteration;
(ii) the failure of an Employer to perform any of its obligations
under this Agreement in any material regard, including without limitation
Section 3 hereof, but only if such failure shall continue unremedied for more
than 30 days after written notice detailing such failure is given by Parker to
Holdings;
(iii) the relocation of the principal executive offices of an
Employer outside the greater Phoenix, Arizona metropolitan area or an Employer's
requiring Parker to be based other than at such principal executive offices;
provided, however, that such relocation shall cease to be
3.
a Good Reason on the date that is 180 days after the occurrence of such
relocation unless, prior to such date, Parker gives a Notice of Termination
pursuant to Section 4.1 on account of such relocation;
(iv) the failure of an Employer to obtain any assumption agreement
required by Section 7.5(a), but only if such failure shall continue unremedied
for more than 30 days after written notice detailing such failure is given by
Parker to Holdings;
(v) the failure of an Employer to elect or re-elect, or to appoint
or re-appoint, Parker to the applicable offices described in paragraphs (a) or
(b) of Section 2.2, but only if such failure shall continue unremedied for more
than 30 days after written notice detailing such failure is given by Parker to
Holdings; or
(vi) the failure of Parker to be elected or appointed, or to be
re-elected or re-appointed, as Chairman of either Employer as contemplated by
Section 2.2, but only if such failure shall continue unremedied for more than 30
days after written notice detailing such failure is given by Parker to Holdings.
"INCENTIVE EQUITY PLANS" shall mean the America West 1994 Incentive Equity
Plan and the America West 2002 Incentive Equity Plan, as amended from time to
time, or any successor and future equity-based plans.
"LTIP" shall mean the America West Airlines Performance-Based Award Plan,
which became effective as of January 1, 2003.
Subject to the terms of Section 7.8(a) below, "MISCONDUCT" shall mean one
or more of the following:
(i) the willful and continued failure by Parker to perform his
duties described in Section 2.2 (other than any such failure resulting from
Parker's incapacity due to physical or mental illness) after written notice of
such failure has been given to Parker by Holdings and Parker has had a
reasonable period (but not more than 60 days) after receipt of such notice to
correct such failure;
(ii) the willful commission by Parker of any act that is both
dishonest and demonstrably injurious to any Constituent Company (monetarily or
otherwise) in any material respect;
(iii) the conviction of Parker for a felony offense involving moral
turpitude; or
(iv) a material breach by Parker of any of the covenants set forth
in this Agreement (other than Section 2.2), but only if such breach shall
continue unremedied for more than 15 days after written notice thereof is given
to Parker by Holdings.
"NOTICE OF TERMINATION" shall mean a notice terminating Parker's
employment in accordance with Section 4.1 or 4.2.
"PAYMENT" shall have the meaning specified in Section 4.6.
4.
"PERSON" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust and an unincorporated organization.
"PRESIDENT" shall mean, when used with reference to any Constituent
Company, the president of such Constituent Company.
"RESTRICTED PERIOD" shall have the meaning specified in Section 5.2(a).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TERMINATION DATE" shall mean either the termination date specified in a
Notice of Termination delivered in accordance with Section 4.1 or 4.2 or the
Expiration Date, as applicable.
"UNDERPAYMENT" shall have the meaning specified in Section 4.6(a).
1.2 INTERPRETATIONS
(a) In this Agreement, unless a clear contrary intention appears,
(i) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision, (ii) reference to any Article or Section means
such Article or Section hereof, (iii) the words "including" (and with
correlative meaning "include") means including, without limiting the generality
of any description preceding such term, and (iv) where any provision of this
Agreement refers to action to be taken by any party, or which such party is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such party.
(b) The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
(c) No provision of this Agreement shall be interpreted or construed
against any party solely because that party or its legal representative drafted
such provision.
ARTICLE 2
EMPLOYMENT; TERM; POSITIONS AND DUTIES
2.1 EMPLOYMENT; TERM
Each Employer hereby employs Parker in the executive capacities set
forth herein and Parker hereby accepts employment by each Employer, in each case
on the terms and conditions, and for the consideration, set forth in this
Agreement. Parker's employment hereunder shall commence on the Effective Date
and shall terminate on the Expiration Date, unless earlier terminated as
provided in Article 4.
5.
2.2 POSITIONS AND DUTIES
(a) While employed hereunder, Parker shall serve as Chairman,
President and CEO of Holdings and shall have and may exercise all of the powers,
functions, duties and responsibilities normally attributable to such positions,
including such powers, duties and responsibilities as are set forth with respect
to such positions in the certificate of incorporation and bylaws (as from time
to time in effect) of Holdings.
(b) While employed hereunder, Parker shall serve as Chairman,
President and CEO of AWA and shall have and may exercise all of the powers,
functions, duties and responsibilities normally attributable to such position,
including such powers, duties and responsibilities as are set forth with respect
to such position in the certificate of incorporation and bylaws (as from time to
time in effect) of AWA.
(c) Parker shall have such additional duties and responsibilities
commensurate with the positions referred to above as from time to time may be
reasonably assigned to him by the Board.
(d) While employed hereunder, Parker shall report directly and
exclusively to the Board and shall observe and comply with all lawful policies,
directions and instructions of the Board that are consistent with paragraphs
(a), (b) and (c) above. Parker acknowledges and agrees that the obligation to
respond to inquiries and requests made by duly appointed committees of the Board
is within the scope of his responsibilities as Chairman, President and CEO.
(e) During the Employment Period, the chief operating officer, the
chief financial officer, the chief legal officer, the chief marketing officer
and the chief public affairs officer of each of AWA and Holdings, respectively,
and such other officers as the Board and Parker shall mutually agree, shall
report directly to Parker or to such other executive officer as Parker may
designate.
(f) The Employers agree to use their best efforts to cause Parker to
be elected or appointed, or re-elected or re-appointed, as Chairman of each
Employer at all times during the Employment Period.
(g) While employed hereunder, Parker agrees to devote substantially
all of his business time, attention, skill and efforts to the faithful and
efficient performance of his duties hereunder as Chairman, President and CEO of
Holdings and as Chairman, President and CEO of AWA; provided, however, that
Parker may engage in the following activities so long as they do not interfere
in any material respect with the performance of Parker's duties and
responsibilities hereunder: (i) serve on corporate boards or committees with
respect to which the Board shall have given its prior approval, which approval
shall not be unreasonably withheld, (ii) serve on civic or charitable boards or
committees, (iii) engage in community affairs or charitable endeavors, (iv)
manage his personal finances, investments and other matters, and (v) deliver
lectures, fulfill speaking engagements or teach on a part-time basis at
educational institutions.
6.
2.3 PLACE OF EMPLOYMENT
Parker's place of employment hereunder shall be at Holdings'
principal executive offices.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 BASE SALARY
(a) For services rendered by Parker under this Agreement, Employers
shall pay to Parker an annual cash base salary ("BASE Salary") in the amount
(subject to adjustment as provided in paragraph (b) below) of $550,000 effective
from and after the date of execution of this Agreement and for the remainder of
his employment hereunder. The Base Salary shall be payable as earned during the
Employment Period at such time and in such manner consistent with the Employer's
payroll practices for other senior executives.
(b) The Base Salary shall be reviewed at least annually at such time
or times as the salaries of other senior executives of the Employers as a group
are reviewed commencing in February 2004, and may be increased, but not
decreased, by the Compensation and Human Resources Committee of the Board (or
such other committee as may be appointed by the Board with such authority) at
any time or from time to time as such committee may deem appropriate.
3.2 INCENTIVE COMPENSATION AWARDS
(a) With respect to each full or partial fiscal year occurring
during the Employment Period, beginning with the fiscal year ending December 31,
2003, Parker shall be eligible to receive in addition to the Base Salary an
annual incentive compensation award (the "ANNUAL AWARD") for services rendered
during such full or partial fiscal year, subject to the terms and conditions of
the Employers' annual incentive compensation plan as in effect from time to
time. The amount of the Annual Award, if any, with respect to any fiscal year
shall be based upon performance targets and award levels determined, in
consultation with Parker, by and in the sole discretion of the Board, the
Compensation and Human Resources Committee or such other committee as may be
appointed by the Board with such authority, in accordance with the Employers'
annual incentive compensation plan as in effect from time to time; provided,
however, that for each fiscal year the target award levels with respect to
Parker shall be established in such a manner as to provide Parker with the
opportunity to earn an Annual Award of at least 80% of his Base Salary, assuming
performance at the target level, and a maximum Annual Award opportunity of 160%
of his Base Salary, assuming performance at an extraordinary level in excess of
the target level, for such fiscal year (pro rated for any partial fiscal year).
(b) With respect to the LTIP, the parties acknowledge and agree that
during the Employment Period, Parker will participate in each "Performance
Cycle" and "Transition Performance Cycle," as such terms are defined in the
LTIP, that commences under the LTIP at the award level applicable to the Chief
Executive Officer of AWA. Except as otherwise
7.
expressly set forth in this Agreement, the terms of Parker's awards under the
LTIP will be governed in accordance with the terms of the LTIP, as in effect
from time to time.
3.3 STOCK INCENTIVE AWARDS
Parker shall be granted equity-based incentive awards, including
stock options and restricted stock awards, commensurate with his status as the
most senior executive officer of the Employers pursuant to the Incentive Equity
Plans, at such time or times as equity-based incentive grants are made to other
senior executives of the Employers as a group (but excluding special grants
associated with or attributable to new hires, promotions and other individual
retention decisions). Parker acknowledges that the decision to make such awards
to senior executives of the Employers generally shall be made by and in the sole
discretion of the Compensation and Human Resources Committee, or such other
committee as may be appointed by the Board with such authority.
3.4 OTHER INCENTIVE COMPENSATION AND BENEFITS
In addition to the incentive and equity compensation that Parker
becomes entitled to receive under Sections 3.2 and 3.3 above, Parker shall be
granted additional grants of equity compensation and other annual and long-term
incentive compensation, commensurate with his status as the most senior
executive officer of the Employers at such time or times as such awards are made
to other senior executives of the Employers as a group (but excluding special
grants associated with or attributable to new hires, promotions and other
individual retention decisions). Parker acknowledges that the decision to make
such grants or awards to senior executives of the Employers shall be made by and
in the sole discretion of the Compensation and Human Resources Committee, or
such other committee as may be appointed by the Board with such authority.
3.5 LIFE INSURANCE
During the Employment Period, Employers agree to maintain, at all
times and without premium cost to Parker, a term life insurance policy on the
life of Parker in the amount of $2 million, the proceeds of which, in the event
of Parker's death, shall be payable to one or more beneficiaries designated by
Parker or, in the absence of any such designation, to his estate. Such policy
shall be issued by a solvent insurance company reasonably acceptable to Parker.
3.6 OFFICE SPACE; STAFFING; SERVICES
During the Employment Period, Employers shall provide Parker with
office space, secretarial and other support staff and administrative services
necessary to enable Parker to perform his duties and responsibilities under this
Agreement and as appropriate for a senior executive of Parker's status.
3.7 BUSINESS EXPENSES
Each Employer shall, in accordance with the rules and policies that
it may establish from time to time for senior executives, reimburse Parker
(without duplication) for business expenses reasonably incurred in the
performance of Parker's duties hereunder. It is
8.
understood that Parker is authorized to incur reasonable business expenses for
promoting the businesses and reputations of the Constituent Companies, including
reasonable expenditures for travel, lodging, meals and client and/or business
associate entertainment. Requests for reimbursement for such expenses must be
accompanied by appropriate documentation.
3.8 OTHER BENEFITS
Parker shall be entitled to receive all benefits and other
perquisites that may be offered by the Employers to their senior executives as a
group, including, (i) participation in the various employee benefit plans or
programs provided to senior executives of Employers in general (including life
insurance and disability insurance programs), subject to meeting the eligibility
requirements with respect to each of such benefit plans or programs, (ii)
tax/financial planning assistance, (iii) automobile allowances, (iv) on-line and
interline, positive space travel privileges, (v) participation in Employers'
severance payment policies or plans for executives in general and (vi)
participation in Employers' retiree medical insurance programs, subject to
meeting the eligibility requirements of such programs. In addition, the
Employers shall reimburse Parker for membership fees and dues for up to two (2)
clubs that Parker may choose to join, in his sole discretion. However, nothing
in this Section 3.7 shall be deemed to prohibit Employers from making any
changes in any of the plans, programs or benefits described herein, provided the
change similarly affects all senior executives of Employers.
3.9 ATTORNEYS' FEES
Holdings shall pay, or reimburse Parker for, reasonable attorneys'
fees and associated costs incurred by Parker in connection with the negotiation
and execution of this Agreement and in connection with any amendment to this
Agreement.
3.10 NO DIRECTOR FEES
In no event shall Parker be entitled to receive any additional
compensation for serving as a director of any Constituent Company during the
Employment Period.
ARTICLE 4
CHANGE IN CONTROL AND TERMINATION OF EMPLOYMENT
4.1 TERMINATION BY PARKER
Parker may, at any time prior to the Expiration Date, terminate his
employment hereunder for any reason by delivering a Notice of Termination to the
Board. Any such Notice of Termination shall specify a Termination Date not less
than 30 or more than 60 days after the date such notice is given; provided,
however, that if the Notice of Termination purports to terminate Parker's
employment for Good Reason, it shall set forth in reasonable detail the reason
for such termination and the facts and circumstances claimed to provide a basis
for such termination, and shall specify a Termination Date not less than 5 or
more than 30 days after the date such notice is given.
9.
4.2 TERMINATION BY HOLDINGS
Holdings may, at any time prior to the Expiration Date, terminate
Parker's employment hereunder for any reason by delivering a Notice of
Termination to Parker; provided, however, that in no event shall Holdings be
entitled to terminate Parker's employment hereunder prior to the Expiration Date
unless (i) the Board shall duly adopt, by the affirmative vote of at least a
majority of the entire membership of the Board at a duly convened meeting at
which a quorum is present, a resolution authorizing such termination, and (ii)
Parker shall have been offered an opportunity to address the Board at such
meeting (or at a prior meeting at which his proposed termination is discussed)
before any such resolution is finally adopted. Any such Notice of Termination
delivered under this Section 4.2 shall specify a Termination Date not less than
30 or more than 60 days after the date such notice is given; provided, however,
that if the Notice of Termination purports to terminate Parker's employment for
Misconduct, it shall set forth in reasonable detail the reason for such
termination and the facts and circumstances claimed to provide a basis for such
termination, and shall specify as the Termination Date the date such notice is
given (subject to any applicable periods during which Parker may cure the
circumstances of the alleged Misconduct) or any subsequent date up to the date
30 days after the date such notice is given.
4.3 PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC.
Promptly upon the termination of Parker's employment hereunder for
any reason, including Parker's death, Misconduct or Disability, Employers shall
pay to Parker a lump sum amount for (i) any unpaid Base Salary earned hereunder
prior to the Termination Date, (ii) all unused vacation time accrued by Parker
as of the Termination Date in accordance with Employers' vacation policies for
senior executives, (iii) all unpaid benefits earned by Parker as of the
Termination Date under any and all incentive compensation plans or programs of
Employers, (iv) all amounts owing to Parker under Section 3.6 and (v) any
additional amounts or benefits which may be required to be paid in a lump sum by
applicable law or under the terms of the applicable plans.
4.4 OTHER TERMINATION BENEFITS AND PRIVILEGES
The following provisions shall apply to (i) any termination by
Parker of his employment hereunder for any reason within 24 months following the
date of a Change in Control, (ii) any termination by Parker of his employment
hereunder for Good Reason, (iii) any termination by Holdings of Parker's
employment hereunder for any reason other than Parker's Misconduct, (iv) any
termination of Parker's employment hereunder upon the Expiration Date following
the delivery to Parker by an Employer of written notice that the Expiration Date
will not be extended, or (v) any termination of Parker's employment hereunder on
account of his death or Disability:
(a) SEVERANCE PAYMENT. In the event the termination is described in
clause (i), (ii) or (iii) above, Employers promptly shall pay to Parker a
severance payment (in cash or other immediately available funds) in an amount
equal to two times the sum of (A) Parker's current Base Salary plus (B) the
greater of (I) the average Annual Award paid or payable to Parker with respect
to the three calendar years ending immediately prior to the year in which the
10.
Termination Date occurs and (II) the target level Annual Award for the year in
which the Termination Date occurs. In the event the termination is described in
clause (iv) above or any termination of Parker's employment hereunder on account
of his Disability, Employers promptly shall pay to Parker a severance payment
(in cash or other immediately available funds) in an amount equal to the sum of
(A) Parker's current Base Salary plus (B) the greater of (I) the average Annual
Award paid or payable to Parker with respect to the three calendar years ending
immediately prior to the year in which the Termination Date occurs and (II) the
target level Annual Award for the year in which the Termination Date occurs.
(b) STOCK OPTIONS, STOCK APPRECIATION RIGHTS ETC. In the event the
termination is described in clause (i), (ii), (iii) or (v) above, all
outstanding stock options, stock appreciation rights, restricted stock and other
awards, including, without limitation, any long term incentive awards, held by
Parker pursuant to the provisions of the Incentive Equity Plans and any other
plan in which Parker participates pursuant to Section 3.4 shall become
immediately vested and exercisable as of the Termination Date (except, in
connection with awards made after the Effective Date, as otherwise expressly
accepted or agreed by Parker with respect to any specific award after
consultation between Parker and Employers regarding any such terms, which
consultation shall be acknowledged in writing on the signature page of the
applicable award agreement). Where applicable, all such awards shall remain
exercisable for a period of 36 months from the Termination Date, or such longer
period as may apply under the terms of any specific grant, plan or any other
agreement with Parker. In the event the termination is described in clause (iv)
above or is due to Parker's Misconduct, Parker shall retain all vested stock
options, stock appreciation rights, restricted stock and other awards held by
him as of the Termination Date pursuant to the provisions of the Incentive
Equity Plans and any other plan to which an award is subject, in accordance with
the terms of each specific grant, but without any accelerated vesting, extension
of the period of exercisability or other modification.
(c) LONG TERM INCENTIVE PLAN. In the event the termination is
described in clause (i), (ii) or (iii) above, in settlement of the Employers'
obligations under the LTIP, the Employers shall pay Parker a cash amount equal
to two times the greater of (i) 125% of his Base Salary and (ii) the amount that
would have been paid to Parker had the Total Stockholder Return (as defined in
the LTIP) for the Performance Cycle (as defined in the LTIP) ending on the
December 31 of the year in which the termination occurs (or the next December
31, if no such Performance Cycle ends in such year) been measured as of the
Termination Date. In the event the termination is described in clause (iv) or
(v), then such termination shall be considered termination of an LTIP
participant's employment with the Employers on account of retirement, total
disability or death (regardless of Parker's age at the time), and Parker's
rights under the LTIP will be governed by the terms of the plan accordingly.
(d) MEDICAL INSURANCE. In the event the termination is described in
any clause of the first paragraph of this Section 4.4, during the 24-month
period following the Termination Date, each Employer, at its cost, shall
maintain in full force and effect for the continued benefit of Parker and
Parker's dependents all benefits available to Parker and Parker's dependents
under all medical plans and programs of such Employer, provided that (i)
Parker's continued participation is possible under the terms and provisions of
such plans and programs and (ii) Parker elects to receive such coverage pursuant
to the Consolidated Omnibus Reconciliation Act of 1985, as amended ("COBRA"),
and pays the regular employee premium, if
11.
any, required by such plans and programs. In the event that participation by
Parker (or his dependents) in any such plan or program after the Termination
Date is barred pursuant to the terms thereof, or in the event an Employer shall
terminate any such plan or program, such Employer shall obtain for Parker
(and/or his dependents) comparable coverage under individual policies. The
foregoing medical plan coverage for Parker and Parker's dependents shall be in
complete discharge of each Employer's obligation under COBRA.
(e) LIFE INSURANCE. In the event the termination is described in any
clause of the first paragraph of this Section 4.4 (other than a termination on
account of Parker's death), during the 24-month period following the Termination
Date, each Employer, at its cost, shall continue to provide Parker all life
insurance coverages (and in the same amounts) provided to him by an Employer
immediately prior to the date on which the relevant Notice of Termination is
given in accordance with this Article 4.
(f) TRAVEL PRIVILEGES. In the event the termination is described in
any clause of the first paragraph of this Section 4.4, each Employer shall
provide Parker (and his wife and dependents) lifetime on-line and interline,
positive space travel privileges in accordance with the terms of its non-revenue
travel policy for senior executives as in effect on the Effective Date;
provided, however, that the travel privileges to be provided to Parker (and his
wife and dependents) by each Employer under this paragraph (e) shall be at least
as favorable to Parker (and his wife and dependents) as the travel privileges
generally provided to the senior executives of such Employer from time to time.
4.5 RESIGNATION AS A DIRECTOR
If Parker's employment under this Agreement is terminated for any
reason, Parker agrees, if requested by the Board, to resign as a director of all
Constituent Companies of which he is a director, such resignation to be
effective immediately or at such later time as the Board shall request.
4.6 CERTAIN TAX MATTERS
Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by an Employer to or for the benefit of Parker (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 4.6) (a "PAYMENT") would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties are incurred by Parker
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 Parker shall be entitled to receive an additional payment (a
"GROSS-UP PAYMENT") in an amount such that after payment by Parker of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any income taxes (and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment, Parker retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
12.
(a) CALCULATION. Subject to the provisions of Section 4.6(b) below,
all determinations required to be made under this Section 4.6, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be
made by the independent auditors most recently engaged by Holdings to conduct an
independent audit of Holdings' financial statements or such other certified
public accounting firm reasonably acceptable to Parker as may be designated by
Holdings (the "ACCOUNTING FIRM") which shall provide detailed supporting
calculations both to Parker and Holdings within 15 business days of the receipt
of notice from Parker that there has been a Payment, or such earlier time as is
requested by Holdings. All fees and expenses of the Accounting Firm shall be
borne solely by Holdings. Any Gross-Up Payment, as determined pursuant to this
Section 4.6, shall be paid by Holdings to or for the benefit of Parker within 5
days of the later of (i) the due date for the payment of any Excise Tax and (ii)
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon Parker and Holdings unless substantial
authority under the Code exists to the contrary or a ruling is obtained from the
Internal Revenue Service supporting a contrary view. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which shall not have been made by Holdings should have been
made ("UNDERPAYMENT"), consistent with the calculations required to be made
hereunder. In the event that Holdings exhausts its remedies pursuant to Section
4.6(b) and Parker or Holdings thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by Holdings
to Parker or for Parker's benefit. The previous sentence shall apply mutatis
mutandis to any overpayment of a Gross-Up Payment.
(b) COOPERATION. Parker shall notify Holdings in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by Holdings of the Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than 30 business days after Parker is informed
in writing of such claim, and shall apprise Holdings of the nature of such claim
and the date on which such claim is required to be paid. Parker shall not pay
such claim prior to the expiration of the 30-day period following the date on
which it gives such notice to Holdings (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If Holdings
notifies Parker in writing prior to the expiration of such period that it
desires to contest such claim, Parker will:
(i) give Holdings any information reasonably requested by
Holdings relating to such claim,
(ii) take such action in connection with contesting such claim
as Holdings shall reasonably request in writing from time to time, including
accepting legal representation with respect to such claim by an attorney
reasonably selected by Holdings,
(iii) cooperate with Holdings in good faith in order
effectively to contest such claim, and
(iv) permit Holdings to participate in any proceeding relating
to such claim.
13.
Holdings 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 Parker 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 4.6(b), Holdings
shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forego 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 Parker to pay the tax
claimed and sue for a refund or contest the claim in any permissible manner, and
Parker 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 Holdings shall determine; provided, however, that if
Holdings directs Parker to pay such claim and sue for a refund, Holdings shall
advance the amount of such payment to Parker, on an interest-free basis, and
shall indemnify and hold Parker 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 provided further, however, that any extension of the
statute of limitations relating to payment of taxes for Parker's taxable year
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, Holdings' control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder, and Parker shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(c) ADJUSTMENTS. If, after the receipt by Parker of an amount
advanced by Holdings pursuant to this Section 4.6, Parker becomes entitled to
receive any refund with respect to such claim, Parker shall (subject to
Holdings' complying with the requirements of Section 4.6(b)) promptly pay to
Holdings the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by Parker of an
amount advanced by Holdings pursuant to this Section 4.6, a determination is
made that Parker shall not be entitled to any refund with respect to such claim
and Holdings does not notify Parker in writing of its intent to contest such
denial of refund prior to the expiration of 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.
ARTICLE 5
CONFIDENTIAL INFORMATION, NON-INTERFERENCE
5.1 CONFIDENTIAL INFORMATION
(a) Parker recognizes that the services to be performed by him
hereunder are special, unique and extraordinary and that, by reason of his
employment with Employers and the positions described in paragraphs (a) and (b)
of Section 2.2, he may acquire Confidential Information (defined below)
concerning one or more of the Constituent Companies, the use or disclosure of
which would cause the Constituent Companies substantial loss and damages which
could not be readily calculated and for which no remedy at law would be
adequate. Accordingly,
14.
Parker agrees that he will not (directly or indirectly) at any time, whether
during or after his employment hereunder, disclose any such Confidential
Information to any Person except (i) in the performance of his obligations to
the Constituent Companies hereunder, (ii) as required by applicable law, (iii)
in order to enforce his rights under this Agreement, (iv) in connection with any
litigation (pending or threatened) that is the subject of Section 6 hereof or
(v) with the prior written consent of the Board. As used herein, "CONFIDENTIAL
INFORMATION" includes information with respect to the services, strategies,
facilities and methods, research and development, trade secrets and other
intellectual property, pricing and revenue management systems, patents and
patent applications, procedures, manuals, confidential reports, financial
information, business plans, prospects or opportunities of any Constituent
Company; provided, however, that such term shall not include any information
that (x) is or becomes generally known or available other than as a result of a
disclosure by Parker or (y) is or becomes known or available to Parker on a
nonconfidential basis from a source (other than Employers) which, to Parker's
knowledge, is not prohibited from disclosing such information to Parker by a
legal, contractual, fiduciary or other obligation to any Constituent Company.
(b) Parker confirms that all Confidential Information is the
exclusive property of the relevant Constituent Company. All business records,
papers and documents kept or made by Parker (whether electronically or
otherwise) while employed by any Constituent Company relating to the business of
any Constituent Company shall be and remain the property of such Constituent
Company at all times. Upon the request of Holdings at any time, Parker shall
promptly deliver to Holdings, and shall retain no copies of, any electronic
media or written materials, records and documents made by Parker or coming into
his possession while employed by any Constituent Company concerning the business
or affairs of any Constituent Company other than personal materials, records and
documents (including notes and correspondence) of Parker not containing
information relating to such business or affairs. Notwithstanding the foregoing,
Parker shall be permitted to retain copies of, or have access to, all such
materials, records and documents as may be necessary in order to enforce his
rights under this Agreement or in connection with any litigation (pending or
threatened) that is the subject of Section 6 hereof.
5.2 NON-INTERFERENCE
(a) During the period beginning on the Effective Date and continuing
for six months following the Termination Date (the "RESTRICTED PERIOD"), Parker
shall not, whether for his own account or for the account of any other Person
(excluding Holdings), intentionally solicit, endeavor to entice or induce any
employee of any Constituent Company to terminate his employment with such
Constituent Company or accept employment with anyone else; provided, however,
that this Section 5.2 shall not apply to Parker's personal secretary.
(b) If any provision of this Section 5.2 relating to the Restricted
Period and/or the areas of restriction shall be declared by an arbitrator
pursuant to Article 6 or a court of competent jurisdiction to exceed the maximum
time period or areas such arbitrator or court deems reasonable and enforceable,
the Restricted Period and/or areas of restriction deemed reasonable and
enforceable by such arbitrator or court shall become and thereafter be the
maximum time period and/or areas.
15.
5.3 INJUNCTIVE RELIEF
Parker acknowledges that a breach of any of the covenants contained
in this Article 5 may result in material irreparable injury to the Constituent
Companies 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 and the Constituent Companies (or any of them) shall be
entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining Parker from engaging in activities prohibited
by this Article 5 or such other relief as may required to specifically enforce
any of the covenants contained in this Article 5. Parker agrees to and hereby
does submit to in personam jurisdiction before each and every such court for
that purpose.
ARTICLE 6
DISPUTE RESOLUTION
6.1 GENERAL
Any claim, dispute, or controversy of whatever nature arising out of
or relating to this Agreement (including any other agreement(s) contemplated
hereunder), including any action or claim based on tort, contract, or statute
(including any claims of breach or violation of statutory or common law
protections from discrimination, harassment and hostile working environment), or
concerning the interpretation, effect, termination, validity, performance and/or
breach of this Agreement (a "DISPUTE"), shall to the fullest extent permitted by
law be resolved by final and binding arbitration before a panel of three
arbitrators ("ARBITRATORS") selected from and administered by JAMS (the
"ADMINISTRATOR") in accordance with its then existing Comprehensive Arbitration
Rules & Procedures, except with respect to the selection of such Arbitrators
which shall be made in accordance with Section 6.3 below. The arbitration
hearing shall be held in Maricopa County, Arizona.
6.2 PRELIMINARY REQUIREMENTS
Before commencing the above-referenced JAMS arbitration, the parties
shall first make a good faith attempt to resolve a Dispute through their
management. In the event such good faith negotiation fails to settle a Dispute
within 30 days from notice of such Dispute, the parties shall endeavor to
resolve the Dispute by mediation through JAMS. If the Dispute has not been
resolved pursuant to the JAMS mediation within 30 days of the request for
mediation, the Dispute shall be submitted to the JAMS arbitration process
described herein.
6.3 CHOICE OF ARBITRATORS
The choice of Arbitrators shall be made as follows. Parker shall
choose one independent Arbitrator and Holdings shall choose one independent
Arbitrator. The two Arbitrators so chosen will choose the third Arbitrator, who
must be independent with excellent academic and professional credentials, with
experience in the subject matter of the Dispute and who has had both training
and at least five years experience as an arbitrator.
16.
6.4 ARBITRATION; RULES
(a) Any issue as to whether or the extent to which the Dispute is
subject to the arbitration, including, but not limited to, issues relating to
the validity or enforceability of this Article 6, the applicability of any
statute of limitations or other defense relating to the timeliness of the
assertion of any claim or any other matter relating to the arbitrability of such
claim, shall be decided by the Arbitrators.
(b) The Arbitrators shall be authorized to award compensatory
damages, but shall not be authorized (i) to award non-economic damages, such as
for emotional distress, pain and suffering, or loss of consortium, (ii) to award
punitive damages, or (iii) to reform, modify or materially change this Agreement
or any other agreements contemplated hereunder; provided, however<184> that the
damage limitations described in parts (i) and (ii) of this sentence will not
apply if such damages are statutorily imposed. The Arbitrators also shall be
authorized to grant any temporary, preliminary or permanent equitable remedy or
relief he or she deems just and equitable and within the scope of this
Agreement, including, without limitation, an injunction or order for specific
performance.
(c) Each party shall bear its own attorney's fees, costs, and
disbursements arising out of the arbitration; however, the Arbitrators shall be
authorized to determine whether a party is the prevailing party, and if so, to
award to that prevailing party reimbursement for its reasonable attorneys' fees,
costs and disbursements (including, for example, expert witness fees and
expenses, photocopy charges, travel expenses, etc.). Holdings shall pay the
costs of the arbitration, including the cost of the Arbitrators themselves.
(d) The Arbitrators shall render their decision in writing and,
unless both parties agree otherwise, shall include an explanation of the reasons
for the award, which explanation shall be limited to the extent necessary to
support the award and need not attempt to cover all issues raised by the
parties.
(e) The arbitration shall be governed by the substantive laws of the
State of Arizona applicable to contracts made and to be performed therein,
without regard to conflicts of law rules. The Arbitrators shall have no power or
authority to order or grant any remedy or relief that a court could not order or
grant under applicable law.
6.5 ENFORCEMENT
Judgment upon the award rendered by the Arbitrators may be entered
in any court having jurisdiction thereof. These arbitration provisions may be
enforced by any court of competent jurisdiction, and the party seeking
enforcement shall be entitled to all costs and expenses, including reasonable
attorneys' fees, to be paid by the party against whom enforcement is ordered.
6.6 CERTAIN COURT ACTIONS PERMITTED
Notwithstanding the foregoing, this Article 6 will not preclude
either party from pursuing a court action for the sole purpose of obtaining a
temporary restraining order or a preliminary injunction in circumstances in
which such relief is appropriate (including as
17.
contemplated by Section 5.4), provided that any other relief will be pursued
through an arbitration proceeding pursuant to this Article 6. For purposes of
this Section 6.6, each party hereto irrevocably and unconditionally:
(a) agrees that any suit, action or other legal proceeding arising
out of this Agreement (other than as contemplated by Section 5.4) shall only be
brought in the United States District Court for the District of the State of
Arizona or, if such court does not have jurisdiction or will not accept
jurisdiction, then only in the Superior Court of the State of Arizona,
(b) consents to the jurisdiction of any such court in any such suit,
action or proceeding, and
(c) waives any objection which such party may have to the laying of
venue of any such suit, action or proceeding in any such court.
6.7 WAIVER OF CERTAIN RIGHTS AND PROTECTIONS
BY AGREEING TO THIS BINDING ARTICLE 6, THE PARTIES UNDERSTAND THAT
THEY ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE
IF A DISPUTE WERE DETERMINED BY LITIGATION IN COURT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES PRECLUDED BY THIS
ARTICLE 6, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF DISCOVERY AND APPEAL,
AND A RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE.
ARTICLE 7
MISCELLANEOUS
7.1 NO MITIGATION OR SET OFF
The provisions of this Agreement are not intended to, nor shall they
be construed to, require that Parker mitigate the amount of any payment provided
for in this Agreement by seeking or accepting other employment, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by Parker as the result of employment by another employer or
otherwise. Without limitation of the foregoing, Employers' obligations to make
the payments to Parker required under this Agreement and otherwise to perform
their obligations hereunder shall not be affected by any set off, counterclaim,
recoupment, defense or other claim, right or action that either an may have
against Parker.
7.2 ASSIGNABILITY
The obligations of Parker hereunder are personal and may not be
assigned or delegated by Parker or transferred in any manner whatsoever, nor are
such obligations subject to involuntary alienation, assignment or transfer. Each
Employer shall have the right to assign this Agreement and to delegate all its
rights, duties and obligations hereunder as provided in Section 7.5.
18.
7.3 NOTICES
All notices and all other communications provided for in the
Agreement shall be in writing and shall be sent, delivered or mailed, addressed
as follows: (i) if to Employers (or any of them), at Holdings principal office
address or such other address as Holdings may have designated by written notice
to Parker for purposes hereof, directed to the attention of the Board with a
copy to the Secretary of Holdings and (ii) if to Parker, at his residence
address on the records of Holdings or to such other address as he may have
designated to Holdings in writing for purposes hereof. Each such notice or other
communication shall be deemed to have been duly given when delivered in person,
by facsimile or by United States registered mail, return receipt requested,
postage prepaid, except that any notice of change of address shall be effective
only upon receipt.
7.4 SEVERABILITY
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
7.5 SUCCESSORS; BINDING AGREEMENT
(a) Each Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of such Employer, by agreement
in form and substance reasonably acceptable to Parker, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
such Employer would be required to perform it if no such succession had taken
place. Failure of such Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a material breach of this
Agreement. As used herein, (i) the term "Holdings" shall include any successor
to its business and/or assets as aforesaid which executes and delivers the
Agreement provided for in this Section 7.5 or which otherwise becomes bound by
all terms and provisions of this Agreement by operation of law and (ii) the term
"AWA" shall include any successor to its business and/or assets as aforesaid
which executes and delivers the Agreement provided for in this Section 7.5 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Parker hereunder shall inure to
the benefit of and be enforceable by Parker's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Parker should die while any amounts would be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Parker's devisee, legatee, or other designee or, if there be no such designee,
to Parker's estate.
(c) This Agreement and all rights of the Constituent Companies
hereunder shall inure to the benefit of and be enforceable by the Constituent
Companies and their respective successors and assigns.
19.
7.6 TAX WITHHOLDINGS
Each Employer shall withhold from all payments hereunder all
applicable taxes (federal, state or other) that it is required to withhold
therefrom unless Parker has otherwise paid to such Employer the amount of such
taxes.
7.7 AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Parker and the Employer or Employers that shall be bound by such
modification, waiver or discharge. No waiver by any party hereto at any time of
any breach by any other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
7.8 NO DUPLICATE SEVERANCE; ENTIRE AGREEMENT
(a) Notwithstanding any term to the contrary in this Agreement, in
the event Parker shall become entitled to receive a severance payment pursuant
to Section 4.4(a) above under circumstances which also entitle him to receive
another severance payment under any severance policy or plan of an Employer,
then the other severance payment due to Parker pursuant to such policy or plan
automatically shall be reduced by the amount of the severance payment paid or
payable under Section 4.4(a) (but shall not be reduced by the amount of any
Gross-Up Payment paid or payable under Section 4.6).
(b) The parties acknowledge, confirm and agree that, except as
expressly provided herein, this Agreement represents the entire agreement of the
parties, and no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by any party
which are not set forth expressly in this Agreement.
7.9 GOVERNING LAW
The validity, interpretation, construction and performance of this
agreement shall be governed by the laws of the state of Arizona without regard
to its conflict of laws provision.
7.10 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
7.11 INDEMNIFICATION; LIABILITY INSURANCE
Parker shall be indemnified by the Employers to the full extent
permitted by law and in accordance with the Employers' policies applicable to
other senior executives and directors. In the event Holdings maintains directors
and officers liability insurance, Parker will be insured under such policies
during the Employment Period at a level commensurate with
20.
those applicable to other senior executives and directors of Holdings. Without
Parker's prior written consent, no Employer shall amend, modify or repeal any
provision of its certificate of incorporation or bylaws if such amendment,
modification or repeal would materially adversely affect Parker's rights to
indemnification by such Employer.
7.12 REMEDIES CUMULATIVE
No right, power or remedy granted under this Agreement is intended
to be exclusive, but each shall be cumulative and in addition to any other
rights, powers or remedies referred to in this Agreement or otherwise available
at law or in equity.
7.13 JOINT AND SEVERAL LIABILITY
The obligations of Employers hereunder shall be joint and several.
21.
IN WITNESS WHEREOF, the parties have executed this Agreement on
February ____, 2004 but effective for all purposes (except as herein otherwise
expressly provided) as of the date first above written.
AMERICA WEST HOLDINGS CORPORATION
/S/ W. DOUGLAS PARKER By: /S/ WALTER T. KLENZ
- ------------------------------------ --------------------------------------
W. DOUGLAS PARKER Name: Walter T. Klenz
Title: Director and Member of the
Compensation and Human Resources
Committee
AMERICA WEST AIRLINES, INC.
By: /S/ WALTER T. KLENZ
--------------------------------------
Name: Walter T. Klenz
Title: Director and Member of the
Compensation and Human Resources
Committee
22.
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS................ 1
1.1 Definitions........................................ 1
1.2 Interpretations.................................... 5
ARTICLE 2 EMPLOYMENT; TERM; POSITIONS AND DUTIES......... 5
2.1 Employment; Term................................... 5
2.2 Positions and Duties............................... 6
2.3 Place of Employment................................ 7
ARTICLE 3 COMPENSATION AND BENEFITS...................... 7
3.1 Base Salary........................................ 7
3.2 Incentive Compensation Awards...................... 7
3.3 Stock Incentive Awards............................. 8
3.4 Other Incentive Compensation and Benefits.......... 8
3.5 Life Insurance..................................... 8
3.6 Office Space; Staffing; Services................... 8
3.7 Business Expenses.................................. 8
3.8 Other Benefits..................................... 9
3.9 Attorneys' Fees.................................... 9
3.10 No Director Fees................................... 9
ARTICLE 4 CHANGE IN CONTROL AND TERMINATION OF
EMPLOYMENT .................................... 9
4.1 Termination by Parker.............................. 9
4.2 Termination by Holdings............................ 10
4.3 Payment of Accrued Base Salary, Vacation Pay, etc.. 10
4.4 Other Termination Benefits and Privileges.......... 10
4.5 Resignation as a Director.......................... 12
4.6 Certain Tax Matters................................ 12
ARTICLE 5 CONFIDENTIAL INFORMATION, NON-INTERFERENCE..... 14
5.1 Confidential Information........................... 14
5.2 Non-Interference................................... 15
5.3 Injunctive Relief.................................. 16
ARTICLE 6 DISPUTE RESOLUTION............................. 16
6.1 General............................................ 16
6.2 Preliminary Requirements........................... 16
6.3 Choice of Arbitrators.............................. 16
6.4 Arbitration; Rules................................. 17
6.5 Enforcement........................................ 17
6.6 Certain Court Actions Permitted.................... 17
6.7 Waiver of Certain Rights and Protections........... 18
ARTICLE 7 MISCELLANEOUS.................................. 18
7.1 No Mitigation or Set Off........................... 18
7.2 Assignability...................................... 18
7.3 Notices............................................ 19
7.4 Severability....................................... 19
7.5 Successors; Binding Agreement...................... 19
7.6 Tax Withholdings................................... 20
7.7 Amendments and Waivers............................. 20
7.8 No Duplicate Severance; Entire Agreement........... 20
7.9 Governing Law...................................... 20
7.10 Counterparts....................................... 20
7.11 Indemnification; Liability Insurance............... 20
7.12 Remedies Cumulative................................ 21
7.13 Joint and Several Liability........................ 21