|
EXHIBIT 10.4
SEPARATION AGREEMENT AND GENERAL
RELEASE
1.
Agreement. Delta Air
Lines, Inc. (“ Delta ”), and James
Whitehurst, (“I”, or “me”) the undersigned
and individual named on the signature page hereto, wish to enter
into this Separation Agreement and General Release (“
Agreement ”) in order to resolve all outstanding issues and matters
of every type between them. I wish to accept the benefits and bear
the obligations provided pursuant to this Agreement which partially
consist of the benefits that would be provided to me and the
obligations that would be born by me as if my separation was a
termination by Delta without cause under the Delta Air Lines, Inc.
2007 Officer and Director Severance Plan, (the "
Plan "). I
acknowledge I have carefully reviewed the provisions of the Plan,
as well as the provisions of this Agreement. I believe both the
Agreement and the provisions of the Plan are in my best interest
and I acknowledge entering into this Agreement voluntarily and
without coercion. I further acknowledge and agree that my
employment termination date with Delta shall be August 31,
2007 , and I
shall provide any transition services requested by Delta until such
date. I shall also resign from all other positions with Delta
subsidiaries and affiliates as of such date.
2.
Severance Benefits. In
exchange for voluntarily executing and returning this Agreement to
Delta, and satisfying all obligations set forth herein and in the
Plan, Delta will provide me with the level of benefits provided in
the Plan as if my separation was a termination by Delta other than
for Cause (as defined in the Plan), (a) subject to the required
withholding and payment of all applicable federal, state and local
taxes and (b) except as specifically provided in Section 4, with no
tax reimbursement by Delta related to any travel privileges or any
other benefits provided under the Plan. In addition, Delta will
provide me with a payment equal to Five Hundred Ten Thousand Twenty
Five Dollars ($510,025) which represents a pro rata share of my MIP
award for 2007. In exchange for such benefits, I agree to be bound
by the terms and obligations of the Plan as if my separation was a
termination by Delta other than for Cause. I acknowledge and agree
that Delta will have no obligation to provide me with any benefits
in connection with my employment relationship with Delta, or the
termination of that relationship, except as described in the Plan
or described in this Agreement (other than retirement and
equity-based benefits in accordance with the respective terms of
any retirement and equity-based plan in which I participated during
my employment with Delta as provided in Section 3 below). I
specifically acknowledge that as provided in the Plan, payment of
certain of my Severance Benefits may be subject to delayed payment
pursuant to Section 409A of the Internal Revenue Code of 1986, as
determined by Delta.
3.
Treatment of Emergence Awards
. In addition to the Severance Benefits to be
provided pursuant to Section 2 above, Delta and I agree that my
rights and obligations with respect to the Emergence Awards granted
to me under the Delta Air Lines, Inc. 2007 Performance Compensation
Plan, (including Appendix A thereto) (the “
2007 Performance Plan
”), a copy of which is attached hereto as
Exhibit 1, and as further described in the Delta 2007 Performance
Compensation Plan Award Agreement to me dated April 30, 2007, (the
“ Emergence Award
Agreement ”), a copy of which
is attached hereto as Exhibit 2 shall be determined as if my
separation was a termination by Delta other than for Cause, (as
defined in the 2007 Performance Plan). I agree to be bound by all
provisions of the Emergence Award Agreement and the 2007
Performance Plan, except as such provisions may be specifically
superseded by this Agreement.
4.
Flight Benefits . For a
period of fourteen years following my separation date, and subject
to all applicable rules and restrictions, Delta will allow me, my
spouse and dependent children and other “PPR” members
to be eligible for the same non revenue travel benefits as those
provided to active executive officers (and their spouse and
dependent children and other “PPR” members) as modified
from time to time, except that: a) any so called “gross
up” allowance will not exceed the amount provided under the
program as of my separation date and there shall be no carryover
from year to year of the “gross up” allowance, or no
year to year carryover of any other “allowance” type
benefit which may be implemented during such 14 year period; b)
such travel must be on the Delta system, and shall not include
reciprocal benefits that may be provided on other airlines (except
for certain Delta Connection flights); c) Delta may implement any
additional change specifically to my benefits even if such change
is not applied to other participants in the travel program if Delta
determines such changes are required by law or regulation,
including Section 409A of the Internal Revenue Code. All bookings
for anyone other than my PPR members must occur by my separation
date. In addition, I acknowledge and agree that I may not exchange
the Flight Benefits for any other benefit or for a payment in cash
or kind and that Delta may immediately suspend or terminate the
Flight Benefits under this Section 4 if it determines in its
reasonable discretion that I have violated any of my obligations
under this Agreement or any travel policy. I agree that I have
advised Delta that should I receive flight benefits from another
source on a comparable or more favorable basis, I will no longer
wish to participate in Delta’s travel program while receiving
such other flight benefits.
5.
General Waiver and Release.
In exchange for the benefits which Delta is
providing under this Agreement and the Plan, I hereby agree as
follows:
a. Except
for the rights and obligations provided by or arising under this
Agreement, the Plan, the Delta Retirement Plan, the Delta
Family-Care Savings Plan, the 2007 Performance Plan, any bankruptcy
claim I may have as the result of my participation in any Delta
sponsored non qualified pension plan or any right I may have to
indemnification by Delta, I hereby release, acquit, withdraw,
retract and forever discharge any and all claims, or causes of
action which I now have or may have hereafter, directly or
indirectly, personally or in a representative capacity, against
Delta, including its predecessors and successors, and its
subsidiaries and affiliates and all of each entity’s
respective administrators, fiduciaries, parents, subsidiaries,
plans, affiliates, officers, directors, shareholders,
representatives, agents, employees, and all persons acting through
or in connection with Delta (each a " Released Party ") by reason of
any matter, conduct, claim, event, act, omission, cause or thing
whatsoever, from the beginning of time to, and including, the date
of execution of this Agreement. This general release includes, but
is not limited to, all claims, manner of actions, and causes of
action which arise under Title VII of the Civil Rights Act of 1964,
as amended; The Age Discrimination in Employment Act of 1967, as
amended; The Americans with Disabilities Act; The Rehabilitation
Act of 1973, as amended; The Family & Medical Leave Act; The
Worker Adjustment and Retraining Notification Act; 42 U.S.C.
§§ 1981 through 1988; the Employee Retirement Income
Security Act of 1974, as amended, any other federal, state or local
statute or ordinance respecting discriminatory hiring or employment
practices or civil rights laws based on protected class status;
common law claims of intentional or negligent infliction of
emotional distress, defamation, negligent hiring, breach of
contract, breach of the covenant of good faith and fair dealing,
promissory estoppel, negligence, or wrongful termination of
employment; and all other claims of any type or nature, including
any claim in contract or tort, and including any claim for
attorneys' fees. I understand and intend that this General Release
shall discharge all claims against the Released Parties to the
extent permitted by law, but shall not discharge claims arising out
of any events which may occur after the date of execution of this
Agreement.
2
b. Except
as necessary to enforce the terms of this Agreement, I agree that
neither I, nor anyone acting on my behalf, will sue any Released
Party based on any claim released under this Agreement. In the
event that I sue, or anyone acting on my behalf sues, any Released
Party based on any claim released under this Agreement, I will hold
each Released Party harmless from any claim asserted in such
lawsuit and will accept no payment or other benefit as a result of
such lawsuit or any settlement thereof.
6.
No Admissions. This
Agreement is not to be construed in any way as an admission by any
of the Released Parties that they have violated any federal, state,
or local law, ordinance, regulation, or policy.
7.
Acknowledgements. I
understand that there may be numerous, valuable rights under
federal and state law which I am waiving by executing this
Agreement. In connection with this, I hereby acknowledge
that:
a. This
Agreement and the Plan are written in a manner that is
understandable to me, and there shall be no Revocation Period as
defined in the Plan;
b. I
am receiving valuable consideration under this Agreement to which I
would not otherwise be entitled;
c. I
have been advised in writing to consult with an attorney prior to
executing this Agreement;
d. I
understand that this Agreement is a general release of Delta and
the other Released Parties from any past or existing claim or
potential claim including any claim or potential claim relating to
my employment relationship with Delta, and termination of that
relationship;
e. I
have been given a period of five (5) days in which to consider
whether to sign this Agreement and to consult with an attorney,
accountant, tax advisor, spouse, or any other person. I have either
used this full five (5
|
