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EXHIBIT 10.49
EXECUTIVE CHANGE IN CONTROL AND
SEVERANCE BENEFITS AGREEMENT
(SENIOR VICE PRESIDENTS AND OFFICERS OF EQUAL OR HIGHER RANK)
This EXECUTIVE
CHANGE IN CONTROL AND SEVERANCE BENEFITS AGREEMENT (the
"Agreement") is entered into as of the
_____ day of _____________ , 200_ (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 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 Agreements entered
by 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 said
policy 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" shall occur on the first date after the Effective
Date that any of the following occurs:
(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, 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
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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 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 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; or
(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.
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.
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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.
1.6 "MISCONDUCT"
means one or more of the following:
(I) 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
not more than sixty (60) days) after
receipt of such notice to correct such
failure;
(II) 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;
(III) the conviction of Executive for a felony offense involving
moral
turpitude; or
(IV) 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 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 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:
(I) BASE SALARY. Executive shall receive an amount equal to 200%
of
Executive's Base Salary.
(II) 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,
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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.
(III) LONG TERM INCENTIVE PLAN. Executive shall receive in respect
of
the America West Airlines Performance-Based
Award Plan, which became effective
as of January 1, 2003 (the "LTIP"), either
(i) if the LTIP is in effect on
Executive's employment termination date, an
amount equal to 200% of the greater
of (x) Executive's target award under the
LTIP and (y) the award under the LTIP
that would have been paid to Executive had
AWA's Total Stockholder Return for
the Performance Cycle ending on the
December 31 of the year in which employment
termination occurs (or the next December 31
if no such Performance Cycle ends in
such year) been measured as of Executive's
employment termination date, or (ii)
if the LTIP is not in effect on Executive's
employment termination date and its
suspension or termination constituted a
Good Reason basis for Executive's
termination of employment, an amount equal
to 200% of the greater of (x) and (y)
above, determined on the basis of the
target award most recently established for
Executive under the LTIP and AWA's Total
Stockholder Return, measured as of
Executive's employment termination date,
for the Performance Cycle that, absent
such suspension or termination of the LTIP,
would have ended on the December 31
of the year in which employment termination
occurs (or the next December 31 if
no such Performance Cycle would have ended
in such year). Capitalized terms in
the preceding sentence that are not defined
in this Agreement shall have the
definition assigned to such terms in the
LTIP.
(IV) 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.
(V) CONTINUED HEALTH INSURANCE BENEFITS. Provided that
Executive
elects continued coverage under the
Consolidated Omnibus Budget Reconciliation
Act of 1985 ("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
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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(e), 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 BENEFITS
UPON A CHANGE IN CONTROL. In the event of a Change in Control,
Executive shall receive the following
benefits:
(I) ACCELERATION OF OPTION VESTING. All outstanding stock options
held
by Executive shall become immediately
vested and exercisable effective upon such
Change in Control.
(II) 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.
2.3 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 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
