Exhibit 10.1


 


EXECUTION COPY


EMPLOYMENT
AGREEMENT

AMENDMENT NO. 1


 


This
Amendment No. 1 (this “Amendment”) to the Employment Agreement,
dated September 29, 2006 (the “Employment Agreement”), among UAL
Corporation, a Delaware corporation (“UAL”), United Air Lines, Inc.,
a Delaware corporation (“UA”, UAL and UA sometimes collectively referred
to herein as “United”), and Peter D. McDonald (the “Executive”)
is made as of this 15th day of May, 2008.


 


WHEREAS
the Executive recently assumed a new role with United as its Executive Vice
President and Chief Administrative Officer and will no longer serve as United’s
Executive Vice President and Chief Operating Officer;


 


WHEREAS
United desires to continue the employment of the Executive in such new role and
to continue to benefit from the Executive’s services, and the Executive desires
to continue such employment, on the terms and conditions hereinafter set forth;


 


WHEREAS
United and the Executive also wish to amend the Employment Agreement in order
to address the requirements of Section 409A of the Code;


 


WHEREAS,
pursuant to Section 10(e) of the Employment Agreement, the Employment
Agreement may be modified or amended by a writing signed by United and the
Executive; and


 


WHEREAS,
pursuant to Section 10(n) of the Employment Agreement, United may
make necessary amendments to the Employment Agreement for the limited purpose
of, and solely to the extent necessary to avoid imposition of penalties and
additional taxes upon the Executive under Section 409A of the Code;


 


NOW THEREFORE,
for good and valuable consideration, which is hereby acknowledged and agreed by
the undersigned, each of UAL, UA and the Executive (each a “party”) agrees as
follows (capitalized terms not otherwise defined herein shall have the meaning
assigned thereto in the Employment Agreement):


 


1.             Amendment to Section 1(a).  Section 1(a) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“Subject
to all of the terms and conditions of this Agreement, United agrees to continue
to employ the Executive as its Executive Vice President and Chief
Administrative Officer for the Employment Period (as defined in Section 2)
and the Executive agrees to remain employed by United during such period.”


 


2.             Amendment
to Section 1(b).  The first
sentence of Section 1(b) of the Employment Agreement shall be amended
and restated in its entirety to read as follows:


 

















 


“On
and after the date of the amendment to the Employment Agreement, dated as of May 15,
2008 (the “Amendment”), as Executive Vice President and Chief
Administrative Officer of United, the Executive shall be responsible for the
following areas:  customer experience;
human resources; labor relations; employee experience; safety and security;
industry, environmental, corporate and governmental affairs; and information
systems; provided that (i) the Executive will perform such other duties as
he is reasonably directed to perform by the Chief Executive Officer of United
consistent with the Executive’s positions as Executive Vice President and Chief
Administrative Officer of United, and (ii) following the date of the
Amendment, the Chief Executive Officer of United may determine that the
Executive shall cease to be responsible for one or more of the foregoing areas,
so long as the Executive’s level of overall responsibility with respect to the
Company shall remain commensurate with the Executive’s level of responsibility
as in effect on the date of the Amendment.”


 


3.             Amendment to Section 3(b). The last sentence
of Section 3(b) of the Employment Agreement shall be amended and
restated in its entirety to read as follows:


 


“The annual bonus under this Section 3(b) will
hereinafter be referred to as the “Annual Bonus” and will be paid at such time
and in such manner as set forth in the applicable annual incentive compensation
plan documents.”


 


4.             Amendment to Section 3(e)(A).  Section 3(e)(A) of the Employment
Agreement shall be amended by inserting the following text immediately
following the first sentence thereof:


 


“In
consideration for the Executive’s agreeing to remain employed by the Company
notwithstanding the change in his title from Chief Operating Officer to Chief
Administrative Officer, as soon as practicable following the date of the
Amendment (but in no event later than 30 days thereafter), United will cause an
additional amount equal to $820,000 to be deposited in the Executive’s name
under the Secular Trust.  Following the
date of the Amendment, for purposes of this Agreement, the term “Retention
Payment” shall mean the original amount of the Retention Payment plus such
additional amount.”


 


5.             Amendment to Section 3(e)(B).  Section 3(e)(B) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“Subject
to the terms and conditions of this Section 3(e)(B) and except as
otherwise provided herein or in Section 3(e)(C) or (D), the Executive’s
rights with respect to 100% of the assets then held by the Secular Trust shall
become vested on February 1, 2009 (the “Vesting Date”), provided
that, except as set forth in the immediately following sentence, in order for
the Executive’s rights with respect to the Secular Trust to become vested, the
Executive must remain actively employed by United until the Vesting Date.  If, prior to the Vesting Date, the Executive’s
employment under this Agreement is terminated involuntarily for any reason
other than Cause (as defined in Section 4(c)), including as a result of
the Executive’s death or Disability (as defined in Section 4(b)), or if
the Executive resigns for Good Reason (as defined in Section 4(d), as
modified by the Amendment), subject to Section 5(k), the Executive’s
rights with respect to all assets then 


 


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held
by the Secular Trust shall become immediately vested as of the date that the
Release described in Section 5(k) becomes effective and irrevocable
(the “Release Effective Date”). 
For the avoidance of doubt, if, prior to the Vesting Date, the Executive’s
employment under this Agreement is terminated involuntarily for Cause or if the
Executive resigns without Good Reason, the Executive’s rights with respect to
all unvested assets then held by the Secular Trust shall immediately terminate
as of the Termination Date and the Executive shall be entitled to no further
payments or benefits with respect to the unvested portion of the Retention
Payment.  In the event that the Executive’s
rights with respect to the assets of the Secular Trust become vested pursuant
to this Section 3(e)(B), the Executive will be entitled to distribution of
such assets not later than 30 days following the date the Executive’s rights
thereto become vested.”


 


6.             Amendment to Section 3(e)(E).  The first and second sentences of Section 3(e)(E) of
the Employment Agreement shall be amended and restated in their entirety to
read as follows:


 


“In
addition to the foregoing, United will pay to the Executive an additional
amount (such amount, an “Additional Payment”) such that, after payment
by, or on behalf of, the Executive of all income and employment taxes with
respect to any vested portion of the Retention Payment, including any income
and employment taxes imposed upon the Additional Payment, the Executive retains
an amount with respect to such vested portion of the Retention Payment equal to
the aggregate amount of such taxes imposed on such vested portion of the
Retention Payment; provided, however, that United shall only be
obligated to provide the Executive with Additional Payments with respect to
that portion of the Retention Payment that does not exceed $3,420,000 in the
aggregate.  Any Additional Payment will
be paid as soon as practicable following the Executive’s delivery to United of
documentation sufficient to demonstrate the Executive’s entitlement to such
Additional Payment, but in no event later than the end of the year following
the year in which Executive pays (or the Trustee remits) the related tax.


 


7.             Addition of New Section 3(e)(F).  The following text shall be inserted as new Section 3(e)(F) of
the Employment Agreement:


 


“In
consideration for the Executive’s agreeing to remain employed by the Company
notwithstanding the change in his title from Chief Operating Officer to Chief
Administrative Officer, as soon as practicable following the date of the
Amendment (and in no event later than 30 days thereafter), the Company shall
pay to the Executive a lump-sum cash payment in an amount equal to $1,359,750,
and following the date of the Amendment, the Executive shall have no further
rights with respect to former Sections 5(d)(B) and (C) of this
Employment Agreement and shall not be entitled to any severance payments from
the Company under any other severance plan, program, policy, agreement or
arrangement, except as specifically provided in Sections 3(e)(B) and 5(e)(ii) of
this Agreement.”


 


8.             Amendment to 3(f).  Section 3(f) of the Employment
Agreement shall be amended by inserting the following text at the end thereof:


 


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“To
the extent payments under any perquisite program or policy are subject to Section 409A
of the Code, the reimbursement of expenses or in-kind benefits provided
thereunder during a year will not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other taxable
year.  In no event shall such an expense
be reimbursed after the last day of the year following the year in which the
expense was incurred.  The right to such
reimbursement or in-kind benefits is not subject to liquidation or exchange for
another benefit.”


 


9.             Amendment to Section 3(g).  Section 3(g) of the Employment
Agreement shall be amended by inserting the following text at the end thereof:


 


“The reimbursement of
expenses during a year will not affect the expenses eligible for reimbursement
in any other year.  In no event shall
such an expense be reimbursed after the last day of the year following the year
in which the expense was incurred.  The
right to such reimbursement is not subject to liquidation or exchange for another
benefit.”


 


10.           Amendment to Section 4(d).  Section 4(d) of the Employment
Agreement shall be amended by inserting the following text at the end thereof:


 


“Notwithstanding
the foregoing, the Executive must give notice to United within 120 days of the
occurrence of the event giving rise, or events which in the aggregate give rise
(or within 120 days after the date he learns or reasonably should have learned
of such event or events, if later), to the Good Reason event to terminate his
employment for Good Reason based on such event(s).  During the notice period (which shall not be
less than 30 days), United shall have the opportunity to substantially correct
the condition that caused the Good Reason, in which case Good Reason shall no
longer exist with respect to such condition. 
In addition, for the avoidance of doubt, the parties hereby agree that
the Executive shall not be entitled to resign for Good Reason as a result of
any changes to the Executive’s position, status, office, title, authority,
duties or responsibilities that are consistent with Section 1(b) of
this Agreement (as modified by the Amendment) and that such changes shall be
deemed not to constitute a diminution in such position, authority, duties or
responsibilities.”


 


11.           Amendment to Section 4(e).  The definition of “Change of Control” set
forth in Section 4(e) shall be amended and restated in its entirety
to read as follows:


 


“Change
of Control” means a “Change of Control”, “Change in Control” or similar defined
term that means a change in ownership or effective control of the Company, in
each case, as defined in any employment or severance agreement that is entered
into following the date of the Amendment between the Company and any Executive
Vice President of UAL (other than the Executive) that provides for enhanced
severance or termination benefits in the event of a termination of such
Executive Vice President’s employment following a change of control of the
Company (any such agreement, an “EVP Change of Control Agreement”).


 


12.           Amendment of Section 4(g).  The proviso of the first sentence of Section 4(g) shall
be amended to read as follows:


 


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“provided
that if, within thirty (30) days after any Notice of Termination is given with
respect to a termination for Cause, a termination for Good Reason or a
termination for Disability, the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
Termination Date will be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding and final arbitration
award or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected), but in no event will the Termination Date be later than the
latest possible date that would allow sufficient time for both (A) the
Release Effective Date to occur following the Termination Date and (B) any
applicable payments to be made or commence within the period specified in Section 5(k) of
this Agreement.”


 


13.           Amendment of Sections 5(d)(B) and (C).  Sections 5(d)(B) and (C) shall
be deleted in their entirety.


 


14.           Amendment of Sections 5(e)(ii) and (iii).  Sections 5(e)(ii) and (iii) of
the Employment Agreement shall be amended and restated in their entirely to
read as follows:


 


“(ii) 
subject to Section 5(k), in lieu of further payments of Base Salary and
Annual Bonus to the Executive for periods subsequent to the Termination Date,
United will, within ten (10) business days after the Termination Date,
make a lump sum cash payment to the Executive in an amount that is equal to the
excess (if any) of (A) the value of any cash severance that would be
payable if the Executive were entitled to cash severance under the formula set
forth in any EVP Change of Control Agreement (but based on the Executive’s
compensation, rather than the compensation of any other Executive Vice
President) over (B) the Special Retention Payment (as defined in Section 5(g)(v));
and


 


(iii) 
subject to Section 5(k), United will continue to provide the Executive and
the Executive’s family with welfare and other employee benefits on the same
basis as would apply to the Executive and/or the Executive’s family if the
Executive were entitled to such benefits following the Termination Date
pursuant to any EVP Change of Control Agreement (but based on the welfare and
other employee benefits provided to the Executive, rather than the benefits
provided to any other Executive Vice President) for a period of time equal to
the period of time set forth in the EVP Change of Control Agreement, except as
would result in the duplication of any benefit that the Executive and/or the
Executive’s family would be or become entitled to receive from United under any
other plan, program, policy, agreement or arrangement, and provided that (A) no
reimbursement of expenses or in-kind benefit that the Executive becomes
entitled to receive pursuant to this Section 5(e)(iii) shall be
subject to liquidation or exchange for another benefit, (B) the
reimbursement of expenses or in-kind benefits provided hereunder during a year
will not affect the expenses eligible for reimbursement, or in-kind benefits to
be provided, in any other taxable year, and (C) any such reimbursements shall
be made no later than the end of the year following the year in which the
relevant expenses were incurred.


 


For
the avoidance of doubt, in no event will the Executive become entitled to
payments and/or benefits pursuant to more than one EVP Change of Control
Agreement, and in the 


 


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event
that no EVP Change of Control Agreements are in effect as of the date on which
the Executive’s employment with the Company terminates, then as of such date,
Sections 5(e)(ii) and (iii) of this Agreement shall be
immediately void and of no further force or effect.”


 


15.           Amendment to Section 5(g).  Section 5(g) of the Employment
Agreement shall be amended to add the following paragraphs (iv) and (v) to
read as follows:


 


“(iv)  In no event shall any Gross-Up Payment
hereunder be made later than the end of the year following the year in which
the Executive pays (or United remits) the applicable tax.


 


(v)  In the event
that the Executive becomes subject to the Excise Tax with respect to (i) the
$820,000 Retention Payment described in Section 3(e)(A), (ii) the
Additional Payment with respect to such $820,000 Retention Payment described in
Section 3(e)(E) or (iii) the $1,359,750 payment described in Section 3(e)(F) (such
payments, collectively, the “Special Retention Payment”), then
notwithstanding Section 5(g)(i) but subject to the other provisions
of this Section 5(g) (including, without limitation, the Floor
Amount), the Executive shall become entitled to a Gross-Up Payment with respect
to the portion of the Special Retention Payment that is subject to the Excise
Tax without regard to whether or not his employment has terminated.  In the event that the Executive becomes
entitled to a Gross-Up Payment while he is still employed by the Company, the
Executive will become entitled to such Gross-Up Payment only with respect to
that percentage of the Excise Tax on the Special Retention Payment that is
equal to the percentage of the Total Payments that is attributable to the
Special Retention Payment, provided that, in no event will the foregoing
provision limit the Executive’s rights with respect to the Gross-Up Payment in
the event of any termination of the Executive’s employment, as set forth in
this Section 5(g).”


 


16.           Amendment to Section 5(k).  Section 5(k) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“Notwithstanding
any provision of this Agreement to the contrary, United shall not be obligated
to make any payments or provide any benefits described in Sections 5(e)(ii) and
(iii), as applicable, and the Executive shall not be entitled to any
accelerated vesting of the Retention Payment pursuant to Section 3(e)(B),
unless and until such time as the Executive (or the Executive’s estate or legal
representative, if applicable) has executed a waiver and release of claims
substantially in the form attached as Exhibit B to this Agreement (the “Release”),
and the Release has become effective and irrevocable in accordance with its
terms.  In addition, in consideration for
the payment of any portion of the Special Retention Payment that is made to the
Executive prior to termination of his employment, in the event that the
Executive’s employment terminates for any reason during or after the Employment
Period, the Executive hereby agrees that, within 60 days following the
date the Release is furnished to the Executive in accordance with this Section 5(k),
either (i) the Release Executive Date shall occur or (ii) the
Executive shall pay the Company an amount in cash equal to the sum of (A) the
aggregate value of the portion of the Special Retention Payment that was paid
to the Executive prior to the 


 


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Termination
Date plus (B) the aggregate value of any portion of the Retention Payment
that was paid to the Executive following the date of the Amendment but prior to
the Termination Date.  The Release shall
be furnished to the Executive by the Company as soon as practical after the
date on which the Company or the Executive receives the Notice of
Termination.  Unless forfeited hereunder,
any applicable payments will be made or commence during the same calendar year
as the Executive’s termination, or if later, by the 15th day of the
third calendar month following the termination of employment.  In no event will the Executive be permitted
to designate the calendar year of payment.”


 


17.           Amendment to Section 8(a).  Section 8(a) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“a.           Limitation on Application.  Upon termination of the Executive’s
employment with the Company for any reason, regardless of whether such
termination occurs during or after the Employment Period, the terms of this Section 8
shall become effective.”


 


18.           Amendment to Section 9(a).  Section 9(a) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“a.           Non-Compete; Non-Solicitation.  Without the consent in writing of the Board,
during the Employment Period and, upon termination of the Executive’s
employment with the Company for any reason during or after the Employment
Period, for a period of two years after such termination, (i) the
Executive will not become a consultant to, or an officer, employee, agent,
advisor, principal, partner, director or substantial stockholder of any
airline, air carrier, or any company or other entity affiliated, directly or
indirectly, with another airline or air carrier, including holding company
thereof, and (ii) the Executive will not, directly or indirectly, for the
benefit of any airline or air carrier or any company or other entity
affiliated, directly or indirectly, with another airline or air carrier other
than United, solicit the employment or services of, hire, or assist in the
hiring of any person who is employed as a management employee.”


 


19.           Amendment of Section 10(c).  Section 10(c) of the Employment
Agreement shall be amended by adding the following text at the end thereof:


 


“United
shall reimburse the Executive for all reasonable legal fees and expenses
incurred by the Executive in connection with the negotiation and drafting of
the Amendment, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any tax imposed on the Executive as a result of payment by
United of such legal fees and expenses. 
In no event shall such reimbursement of legal fees be made later than
the end of the year following the year in which Executive incurs the fees, and
in no event shall the payment of any gross-up amounts paid with respect to the
reimbursement of legal fees be made later than the end of the year following
the year in which the Executive pays (or United remits) the applicable tax.”


 


20.           Amendment of Section 10(g).  Section 10(g) of the Employment
Agreement shall be amended by adding the following as the penultimate sentence
thereto:


 


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“Any
such reimbursement of attorneys’ fees and costs to the Executive under the
preceding sentences will be made no later than the end of the year following
the year in which the Executive prevails in such arbitration or litigation, as
applicable.”


 


21.           Amendment of Section 10(n).  Section 10(n) of the Employment
Agreement shall be amended and restated in its entirety to read as follows:


 


“It is the intention of
United and the Executive that the provisions of this Agreement comply with Section 409A
of the Code (“Section 409A”) in a manner that does not impose additional
taxes, interest or penalties upon the Executive pursuant to Section 409A,
and all provisions of this Agreement will be construed and interpreted in a
manner consistent with Section 409A and this Section 10(n).  Each of the payments of severance and
continued benefits under Section 5 above are designated as separate
payments for purposes of the short-term deferral rules under Treasury
Regulation Section 1.409A-1(b)(4)(i)(F), the exemption for involuntary
terminations under separation pay plans under Treasury Regulation Section 1.409A-1(b)(9)(iii),
and the exemption for medical expense reimbursements under Treasury Regulation Section 1.409A-1(b)(9)(v)(B).  As a result, (A) payments that are made
on or before the 15th day of the third month of the calendar year
following the applicable year of termination, (B) any additional payments
that are made on or before the last day of the second calendar year following
the year of Executive’s termination (other than due to Retirement) and do not
exceed the lesser of two times his rate of pay or two times the limit under
Code Section 401(a)(17) then in effect, and (C) any payments of
continued medical benefits that are made during the applicable COBRA
continuation period, are exempt from the requirements of Code Section 409A.  As Executive is designated as a “specified
employee” within the meaning of Code Section 409A, to the extent the
payments to be made during the first six month period following Executive’s
separation from service (within the meaning of Section 409A) exceed such
exempt amounts, the payments shall be withheld and the amount of the payments
withheld will be paid in a lump sum, without interest, during the seventh month
after Executive’s termination.  Any
payment or benefit that would be considered deferred compensation subject to,
and not exempt from, Section 409A, payable or provided upon a termination
of employment shall only be paid or provided to the Executive to the extent
such termination constitutes a separation from service (within the meaning of Section 409A).  Except as specifically provided in Sections 3(e)(v),
5(g)(ii) and 10(c), the Executive is solely responsible and liable for the
satisfaction of all taxes and penalties that may arise in connection with this
Agreement (including any taxes arising under Section 409A), and United
shall not have any obligation to indemnify or otherwise hold the Executive
harmless from any or all of such taxes.”


 


22.           Full Force and Effect.  For the avoidance of doubt, except to the
extent expressly modified by this Amendment, all terms of the Employment
Agreement will remain in full force and effect.


 


23.           Governing Law. 
This Amendment will be governed by, construed and interpreted in
accordance with the laws of the State of Delaware, without regard to its
principles of conflicts of laws.


 


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24.           Entire Agreement. 
This Amendment, together with the Employment Agreement and the trust
agreement, contains the entire agreement between United and the Executive
concerning the subject matter hereof and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between United and the Executive with respect hereto.  The Executive acknowledges and agrees that
this Amendment constitutes an amendment to the Employment Agreement in respect
of the Executive’s participation and rights to any benefits thereunder.  This Amendment may not be modified or amended
except by a writing signed by each of the parties hereto.


 


25.           Successors and Assigns.  This Amendment will be binding on (a) the
Executive and the Executive’s estate and legal representatives and (b) United
and its successors and assigns.


 


26.           Counterparts. 
This Amendment may be executed in two or more counterparts (including
via facsimile), each of which will be deemed an original but all of which
together will be considered one and the same agreement.


 


IN
WITNESS WHEREOF, United and the Executive have executed this Amendment as of
the date first above written.


 


	
   

  	
  UAL CORPORATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul R. Lovejoy

  
	
   

  	
  Name:

  	
  Paul
  R. Lovejoy

  
	
   

  	
  Title:

  	
  Senior
  Vice President,

  
	
   

  	
   

  	
  General
  Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UNITED AIR LINES, INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul R. Lovejoy

  
	
   

  	
  Name:

  	
  Paul
  R. Lovejoy

  
	
   

  	
  Title:

  	
  Senior
  Vice President,

  
	
   

  	
   

  	
  General
  Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Peter D. McDonald

  
	
   

  	
  Peter D.
  McDonald

  
				



 


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