EXECUTIVE CHANGE IN CONTROL AND SEVERANCE BENEFITS AGREEMENT

 

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                                                                   EXHIBIT 10.48

 

                         EXECUTIVE CHANGE IN CONTROL AND

                          SEVERANCE BENEFITS AGREEMENT

 

                  (VICE PRESIDENTS AND OFFICERS OF EQUAL RANK)

 

     This EXECUTIVE CHANGE IN CONTROL AND SEVERANCE BENEFITS AGREEMENT (the

"Agreement") is entered into as of the _____ day of _____, 2004 (the "Effective

Date"), by and among ______________ ("Executive"), AMERICA WEST HOLDINGS

CORPORATION, a Delaware corporation ("Holdings"), and AMERICA WEST AIRLINES,

INC., a Delaware corporation and a wholly-owned subsidiary of Holdings ("AWA"

and, together with Holdings, the "Company").

 

     WHEREAS, Executive is currently employed by the Company and has made and is

expected to continue to make major contributions to the short- and long-term

profitability, growth and financial strength of the Company;

 

     WHEREAS, the Company wishes to provide additional inducement for the

Executive to remain in the ongoing employ of the Company; and

 

     WHEREAS, this Agreement is intended to supersede any other policy, plan,

program or arrangement relating to severance benefits payable by the Company to

Executive, including without limitation, any prior Executive Change in Control

and Severance Benefits Agreementsby and among Executive, Holdings, AWA and The

Leisure Company (collectively, the "Prior Agreement") and the America West

Holdings Corporation Executive Perquisites and Benefits policy as it relates to

such severance benefits.

 

                                    ARTICLE 1

 

                                  DEFINED TERMS

 

     For purposes of the Agreement, the following terms are defined as follows:

 

     1.1 "BASE SALARY" means Executive's annual base salary as in effect during

the last regularly scheduled payroll period immediately preceding the effective

date of Executive's termination (i) by the Company for any reason other than

Misconduct or Disability, or (ii) by Executive for Good Reason.

 

     1.2 "BOARD" means the Board of Directors of Holdings.

 

     1.3 "CHANGE IN CONTROL" means one or more of the following events:

 

          (A)   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, however, that any

               individual becoming a director subsequent to the Effective Date

               whose election, or

 

 

                                       1.

 

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               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 an

               individual were a member of the Incumbent Board; or

 

          (B)   any individual, entity or group (within the meaning of Section

               13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as

               amended (the "Exchange Act")), other than the Company, 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 combined voting power of the then outstanding

               voting securities of AWA or Holdings entitled to vote generally

               in the election of directors ("Voting Power"); or

 

          (C)   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

 

          (D)   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 to be 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 50% of the Voting Power immediately

               prior to such Transaction) acquires more than 50% of the Voting

               Power; or

 

 

                                       2.

 

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          (E)   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

 

          (F)   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; or

 

          (G)   any individual, entity or group (within the meaning of Section

               13(d)(3) or 14(d)(2) of the Exchange Act), other than the

               Company, acquires (directly or indirectly) the beneficial

               ownership (within the meaning of Rule 13d-3 promulgated under the

               Exchange Act) of more than 25% but not more than 50% of the

               Voting Power; or

 

          (H)   Holdings or AWA shall consummate a Transaction in which a 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% but not more than 50% of the Voting Power.

 

     1.4 "DISABILITY" means a physical or mental condition of Executive that, in

the good faith judgment of the Company, based upon certification by a licensed

physician reasonably acceptable to Executive and the Company, (i) prevents

Executive from being able to perform the services required by his or her

position with the Company, (ii) has continued for a period of at least six (6)

months during any period of twelve (12) consecutive months and (iii) is expected

to continue.

 

     1.5 "GOOD REASON" means any of the following acts or failures to act, but

in each case only if it occurs during the period Executive is employed by the

Company and only if it is not consented to by Executive: (i) a material adverse

alteration by the Company in the nature or status of Executive's pay, position,

function, duties or responsibilities; provided, however, that such alteration

shall cease to be a Good Reason ninety (90) days after the occurrence of such

alteration unless prior to such date Executive has given written notice of

termination to the Company on account of such alteration; (ii) the relocation of

Executive outside the metropolitan area in which Executive is based; provided,

however, that such relocation shall cease to be a Good Reason ninety (90) days

after the occurrence of such relocation unless prior to such date Executive has

given written notice of termination to the Company on account of such

relocation; or (iii) the failure of the Company to perform any material

obligation owed to Executive, but only if such failure shall continue unremedied

for more than fifteen (15) days after written notice of such failure is given to

the Company by Executive.

 

 

                                       3.

 

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     1.6 "MISCONDUCT" means one or more of the following:

 

          (a)   the willful and continued failure by Executive to perform his or

                her duties (other than any such failure resulting from

               Executive's incapacity due to physical or mental illness) after

               written notice of such failure has been given to Executive by the

               Company and Executive has had a reasonable period (but no more

               than sixty (60) days) after receipt of such notice to correct

               such failure;

 

          (b)   the willful commission by Executive of any act that is both

               dishonest and demonstrably injurious to Holdings, AWA or any

               direct or indirect subsidiary of Holdings (monetarily or

               otherwise) in any material respect;

 

          (c)   the conviction of Executive for a felony offense involving moral

                turpitude;

 

          (d)   a material breach by Executive of any of the covenants set forth

               in any employment agreement between the Company and Executive,

               but only if such breach shall continue unremedied for more than

               fifteen (15) days after written notice thereof is given to the

               Executive by the Company.

 

                                    ARTICLE 2

 

                                    BENEFITS

 

     2.1 BENEFITS UPON CERTAIN TERMINATIONS FOLLOWING A CHANGE IN CONTROL. If,

within twenty-four (24) months following the effective date of a Change in

Control, Executive (i) is terminated by the Company for any reason other than

Misconduct or Disability or (ii) terminates employment with the Company for Good

Reason, Executive shall receive the following benefits:

 

          (A) BASE SALARY. Executive shall receive an amount equal to 200% of

Executive's Base Salary.

 

          (B) ANNUAL BONUS. Executive shall receive an amount equal to either

(i) 200% of Executive's target bonus under the Company's annual bonus program,

if then in effect, for the year of such termination, or (ii) if such program is

not then in effect and its suspension or termination constituted a Good Reason

basis for Executive's termination of employment, 200% of Executive's target

bonus under such program immediately prior to its suspension or termination.

 

          (C) EXTENDED EXERCISABILITY OF OPTIONS. Executive shall be entitled to

exercise his or her outstanding stock options, to the extent such options are

vested, until the earlier of (i) the expiration of the term of such options as

provided in the agreement under which such options were granted, and (ii)

eighteen (18) months after Executive's termination of employment.

 

          (D) CONTINUED HEALTH INSURANCE BENEFITS. Provided that Executive

elects continued coverage under the Consolidated Omnibus Budget Reconciliation

Act of 1985

 

 

                                       4.

 

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("COBRA"), the Company shall pay the portion of premiums of Executive's group

medical, dental and vision coverage, including coverage for Executive's eligible

dependents, that the Company paid prior to Executive's termination of

employment, through the earlier of (i) the date on which Executive obtains

alternative group medical, dental or vision insurance coverage, (ii) twenty-four

(24) months following the effective date of such termination, or (iii) the end

of the period during which COBRA coverage will be made available to Executive.

Executive shall be required to notify the Company immediately if Executive

obtains alternative group medical, dental or vision insurance.

 

     No provision of this Agreement shall affect the continuation coverage rules

under COBRA, except that the Company's payment of any applicable insurance

premiums shall be credited as a payment by Executive for purposes of Executive's

payment required under COBRA. Therefore, the period during which Executive may

elect to continue the Company's group medical coverage at Executive's own

expense under COBRA, the length of time during which COBRA coverage will be made

available to Executive, and all other rights and obligations of Executive under

COBRA (except the obligation to pay insurance premiums that the Company pays

during the period set forth above) shall be applied in the same manner that such

rules would apply in the absence of this Agreement. At the conclusion of the

period during which the Company will pay a portion of the premiums for

Executive's group medical, dental and vision coverage, Executive shall be

responsible for the entire payment of premiums required under COBRA for the

duration of the COBRA period. For purposes of this Section 2.1 (d), applicable

premiums that will be paid by the Company shall not include any amounts payable

by Executive under an Internal Revenue Code Section 125 health care

reimbursement plan, which amounts, if any, are the sole responsibility of

Executive.

 

     2.2 ACCELERATION OF OPTION VESTING.

 

          (I) In the event of a Change in Control described in any of clauses

(a) through (f) of section 1.3 of this Agreement, all outstanding stock options

held by Executive shall become immediately vested and exercisable effective upon

such Change in Control.

 

          (II) If, within twenty-four (24) months following the effective date

of a Change in Control described in clause (g) or (h) of section 1.3 of this

Agreement, Executive is (i) terminated by the Company for any reason other than

Misconduct or (ii) terminates employment with the Company for Good Reason, all

outstanding stock options held by Executive shall become immediately vested and

exercisable effective upon such termination.

 

     2.3 FLIGHT PRIVILEGES. Executive shall be entitled to top priority, first

class, positive space travel privileges, to be provided by AWA or, if AWA did

not survive the Change in Control, by the airline which survived the Change in

Control. The travel privileges would cover Executive and his/her dependents for

as long as Executive lives.

 

     2.4 MITIGATION. Except as otherwise specifically provided herein, Executive

shall not be required to mitigate damages or the amount of any payment provided

under this Agreement by seeking other employment or otherwise, nor shall the

amount of any payment provided for under this Agreement be reduced by any

compensation earned by Executive as a result of employment by another employer

received by Executive or by any retirement benefits received

 

 

                                       5.

 

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by Executive after the date of Executive's termination (i) by the Company for

any reason other than Misconduct or Disability, or (ii) by Executive for Good

Reason.

 

                                    ARTICLE 3

 

                     LIMITATIONS AND CONDITIONS ON BENEFITS

 

     3.1 RELEASE PRIOR TO PAYMENT OF BENEFITS. In order to be eligible to

receive benefits under this Agreement, Executive must execute a general waiver

and release in substantially the form attached hereto, as Exhibit A, Exhibit B

or Exhibit C, as appropriate, and such release must become effective in

accordance with its terms. The Company, in its sole discretion, shall determine

the form of the required release, which may be incorporated into a termination

agreement or other agreement with Executive, and may modify the form of the

required release to comply with applicable federal or state law.

 

     3.2 PARACHUTE PAYMENTS. If any payment, distribution or benefit Executive

would receive from the Company or otherwise, but determined without regard to

any additional pa