SALES PLAN
SALES PLAN dated November 14, 2001 (this "Sales Plan") between The Estate of
Xxxxxxx Xxxxxxx, represented by Xxxxx Xxxxxxx and Xxxx X. Blue, acting jointly
as Trustees of the Trust (collectively the "Seller") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx"), acting as agent for Seller.
A. RECITALS
1. This Sales Plan is entered into between Seller and Xxxxxx Xxxxxxx for
the purpose of establishing a trading plan that complies with the requirements
of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. Seller is establishing this Sales Plan in order to permit the orderly
disposition of a portion of Seller's holdings of the Common Stock, par value
$.01 per share (the "Stock"), of Atlas Air Worldwide Holdings, Inc. (the
"Issuer").
B. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
1. As of the date hereof, Seller is not aware of any material nonpublic
information concerning the Issuer or its securities. Seller is entering into
this Sales Plan in good faith and not as part of a plan or scheme to evade
compliance with the federal securities laws.
2. The securities to be sold under this Sales Plan are owned free and
clear by Seller and are not subject to any agreement granting any pledge, lien,
mortgage, hypothecation, security interest, charge, option or encumbrance or any
other limitation on disposition, other than those which may have been entered
into between Seller and Xxxxxx Xxxxxxx or imposed by Rules 144 or 145 under
Securities Act of 1933, as amended (the "Securities Act").
3. While this Sales Plan is in effect, Seller agrees not to enter into or
alter any corresponding or hedging transaction or position with respect to the
securities covered by this Sales Plan (including, without limitation, with
respect to any securities convertible or exchangeable into the Stock) and agrees
not to alter or deviate from the terms of this Sales Plan.
4. Seller agrees that Seller shall not, directly or indirectly,
communicate any information relating to the Stock or the Issuer to any employee
of Xxxxxx Xxxxxxx or its affiliates who is involved, directly or indirectly, in
executing this Sales Plan at any time while this Sales Plan is in effect. Any
notice given to Xxxxxx Xxxxxxx pursuant to this Sales Plan shall be given in
accordance with paragraph G.4.
5. Seller agrees to notify Xxxxxx Xxxxxxx'x compliance officer by
telephone at the number set forth in paragraph G.4 below as soon as practicable
if Seller becomes aware of the occurrence of any event contemplated by paragraph
C.4 below. Such
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notice shall indicate the anticipated duration of the restriction, but shall not
include any other information about the nature of the restriction or its
applicability to Seller and shall not in any way communicate any material
nonpublic information about the Issuer or its securities to Xxxxxx Xxxxxxx.
6. The execution and delivery of this Sales Plan by Seller and the
transactions contemplated by this Sales Plan will not contravene any provision
of applicable law or any agreement or other instrument binding on Seller or any
of Seller's affiliates or any judgment order or decree of any governmental body,
agency or court having jurisdiction over Seller or Seller's affiliates.
7. Seller has consulted with Seller's own advisors as to the legal, tax,
business, financial and related aspects of, and has not relied upon Xxxxxx
Xxxxxxx or any person affiliated with Xxxxxx Xxxxxxx in connection with,
Seller's adoption and implementation of this Sales Plan.
8. (a) Seller agrees to make all filings, if any, required under Sections
13(d), 13(g) and 16 of the Exchange Act in a timely manner, to the extent any
such filings are applicable to Seller.
(b) Seller agrees that Seller shall at all times during the Plan
Sales Period (as defined below), in connection with the performance of this
Sales Plan, comply with all applicable laws, including, without limitation,
Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
9. (a) Seller represents and warrants that the Stock to be sold
pursuant to this Sales Plan is currently eligible for sale under Rule 144 or
145.
(b) Seller agrees not to take, and agrees to cause any person or
entity with which Seller would be required to aggregate sales of Stock pursuant
to paragraph (a)(2) or (e) of Rule 144 not to take, any action that would cause
the sales hereunder not to meet all applicable requirements of Rule 144.
(c) Seller agrees to complete, execute and deliver to Xxxxxx Xxxxxxx
Forms 144 for the sales to be effected under this Sales Plan at such times and
in such numbers as Xxxxxx Xxxxxxx shall request, and Xxxxxx Xxxxxxx agrees to
file such Forms 144 on behalf of Seller as required by applicable law.
(d) Seller hereby grants Xxxxxx Xxxxxxx a power of attorney to
complete and/or file on behalf of Seller any required Forms 144. Notwithstanding
such power of attorney, Seller acknowledges that Xxxxxx Xxxxxxx shall have no
obligation to complete or file Forms 144 on behalf of Seller except as set forth
in subparagraph (c).
(e) Xxxxxx Xxxxxxx agrees to conduct all sales pursuant to this
Sales Plan in accordance with the manner of sale requirement of Rule 144 of the
Securities Act and in no event shall Xxxxxx Xxxxxxx effect any sale if such sale
would exceed the then-applicable amount limitation under Rule 144 assuming
Xxxxxx Xxxxxxx'x sales
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pursuant to this Sales Plan and any sales of which Xxxxxx Xxxxxxx received
notice pursuant to paragraph B.13 below are the only sales subject to that
limitation.
10. Seller acknowledges and agrees that Seller does not have, and shall
not attempt to exercise, any influence over how, when or whether to effect sales
of Stock pursuant to this Sales Plan. Seller and Xxxxxx Xxxxxxx acknowledge and
agree that Xxxxxx Xxxxxxx shall not sell Stock pursuant to this Sales Plan at
any time when any person at Xxxxxx Xxxxxxx with influence over how, when or
whether to effect such sale is aware of material non-public information
concerning the Issuer or its securities.
11. (a) Seller represents that Seller is not entering into the Sales Plan
on behalf of, or with the assets of, an individual retirement account or
individual retirement annuity, or any employee retirement or employee benefit
plan (such as, for example, a Xxxxx or "HR-10" plan).
(b) Seller represents that Seller is not an "employee benefit plan"
within meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended, or a "plan" as defined under Section 4975(e) of the Internal
Revenue Code of 1986, as amended, or an entity whose underlying assets include
the assets of any such plan by reason of such a plan's investment in such
entity.
12. Seller agrees to complete, execute and deliver to Xxxxxx Xxxxxxx a
seller representation letter dated as of the date hereof substantially in the
form of Exhibit A prior to the commencement of the Plan Sales Period.
13. Seller agrees that until this Sales Plan has been terminated Seller
shall not, without providing prior written notice to Xxxxxx Xxxxxxx (i) enter
into a binding contract with respect to the purchase or sale of Stock with
another broker, dealer or financial institution (each, a "Financial
Institution"), (ii) instruct another Financial Institution to purchase or sell
Stock or (iii) adopt a plan for trading with respect to Stock other than this
Sales Plan.
C. IMPLEMENTATION OF THE PLAN
1. Seller hereby appoints Xxxxxx Xxxxxxx to sell shares of Stock pursuant
to the terms and conditions set forth below. Subject to such terms and
conditions, Xxxxxx Xxxxxxx hereby accepts such appointment.
2. Xxxxxx Xxxxxxx is authorized to begin selling Stock pursuant to this
Sales Plan on [November 15 (date of 3rd Q 10-Q] and shall cease selling Stock on
the earliest to occur of (i) the date on which Xxxxxx Xxxxxxx is required to
suspend or terminate sales under the Sales Plan pursuant to paragraph D.1 below,
(ii) the date on which Xxxxxx Xxxxxxx receives notice of the death of Xxxxx
Xxxxxxx, (iii) the date on which the Issuer or any other person publicly
announces a tender or exchange offer with respect to the Stock or a merger,
acquisition, reorganization, recapitalization or comparable transaction
affecting the securities of the Issuer as a result of which the Stock is to be
exchanged or converted into cash and/or shares of another company,
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(iv) the date on which Xxxxxx Xxxxxxx receives notice of the commencement or
impending commencement of any proceedings in respect of or triggered by Seller's
bankruptcy or insolvency, (v) the date that the aggregate number of shares of
Stock sold pursuant to this Sales Plan reaches 1,500,000 shares or (vi)
November 15, 2002 (the "Plan Sales Period").
3. (a) During the Plan Sales Period, Xxxxxx Xxxxxxx shall sell 125,000
shares of Stock for the account of Seller during each 30 calendar day period,
the timing of each sale to be determined by Xxxxxx Xxxxxxx in its sole
discretion.
4. Xxxxxx Xxxxxxx shall not sell Stock hereunder at any time when:
(i) Xxxxxx Xxxxxxx, in its sole discretion, has determined
that a market disruption, banking moratorium, outbreak or escalation
of hostilities or other crisis or calamity that could, in Xxxxxx
Xxxxxxx'x judgment, impact sales of the Stock has occurred; or
(ii) Xxxxxx Xxxxxxx, in its sole discretion, has determined
that it is prohibited from doing so by a legal, contractual or
regulatory restriction applicable to it or its affiliates or to
Seller or Seller's affiliates (other than any such restriction
relating to Seller's possession or alleged possession of material
nonpublic information about the Issuer or the Stock); or
(iii) Xxxxxx Xxxxxxx has received notice from the Seller that
during the Plan Sales Period, a legal, contractual or regulatory
restriction that is applicable to Seller or Seller's affiliates,
including, without limitation, any restriction related to a merger
or acquisition or a stock offering requiring an affiliate lock-up,
would prohibit any sale pursuant to the Sales Plan (other than any
such restriction relating to Seller's possession or alleged
possession of material nonpublic information about the Issuer or its
securities).
(iv) Xxxxxx Xxxxxxx has received notice from Seller to
terminate the Sales Plan in accordance with paragraph D.1 below.
5. (a) Seller agrees to deliver the Stock to be sold pursuant to this
Sales Plan (the "Plan Shares") into an account at Xxxxxx Xxxxxxx in the name of
and for the benefit of Seller (the "Plan Account") prior to the commencement of
sales under this Sales Plan.
(b) Xxxxxx Xxxxxxx shall withdraw Stock from the Plan Account in
order to effect sales of Stock under this Sales Plan. Xxxxxx Xxxxxxx agrees to
notify Seller promptly if at any time during the Plan Sales Period the number of
shares of Stock in the Plan Account is less than the number of Plan Shares
remaining to be sold pursuant to this Sales Plan. Upon such notification, Seller
agrees to deliver promptly to the Plan Account the number of shares of Stock
necessary to eliminate this shortfall.
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(c) To the extent that any Stock remains in the Plan Account after
the end of the Plan Sales Period or upon termination of this Sales Plan,
Xxxxxx Xxxxxxx agrees to return such Stock promptly to the Issuer's transfer
agent for relegending to the extent that such Stock would then be subject to
transfer restrictions in the hands of the Seller.
6. Xxxxxx Xxxxxxx shall in no event effect any sale under this Sales Plan
if the Stock to be sold is not in the Plan Account.
7. Xxxxxx Xxxxxxx may sell Stock on any national securities exchange, in
the over-the-counter market, on an automated trading system or otherwise. Seller
agrees that if Xxxxxx Xxxxxxx is a market maker in the Stock at the time that
any sale is to be made under this Sales Plan, Xxxxxx Xxxxxxx may, at its sole
discretion, purchase the Stock from Seller in its capacity as market maker.
Xxxxxx Xxxxxxx shall sell the Stock under ordinary principle of best execution
at the then prevailing market price.
8. Xxxxxx Xxxxxxx shall promptly notify the Seller in writing of any sales
made by Xxxxxx Xxxxxxx pursuant to this Sales Plan.
D. TERMINATION
1. This Sales Plan may not be terminated prior to the end of the
Plan Sales Period, except that:
(i) upon three days prior written notice sent to Xxxxxx
Xxxxxxx'x compliance office by overnight mail and by facsimile at
the address and fax number set forth in paragraph G.4 below, it may
be suspended or terminated by Seller at any time:
(A) if legal or regulatory restrictions applicable to
Seller or Seller's affiliates (other than any such
restrictions relating to Seller's possession or alleged
possession of material nonpublic information about the Issuer
or the Stock) would prevent Xxxxxx Xxxxxxx from selling Stock
for Seller's account during the Plan Sales Period; or
(B) if Seller is not aware of any material nonpublic
information concerning the Issuer or its securities and
delivers to Xxxxxx Xxxxxxx a certificate of Seller dated as of
the date of the notice representing that as of the date
thereof, Seller is not aware of any material nonpublic
information concerning the Issuer or its securities.
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2. Seller agrees that Xxxxxx Xxxxxxx will execute this Sales Plan in
accordance with its terms and will not be required to suspend or terminate any
sales of the Stock unless Xxxxxx Xxxxxxx has received notice from Seller in
accordance with paragraph C.4 or D.1 above at least three days prior to the date
on which this Sales Plan is to be suspended or terminated.
3. This Sales Plan may be amended by Seller only upon the written consent
of Xxxxxx Xxxxxxx and receipt by Xxxxxx Xxxxxxx of a certificate signed by
Seller certifying that the representations and warranties of Seller contained in
this Sales Plan are true at and as of the date of such certificate as if made at
and as of such date.
E. INDEMNIFICATION
1. (a) Seller agrees that Xxxxxx Xxxxxxx has no obligation with respect to
whether this agreement meets the provision of Rule 10b5-1, and Seller hereby
indemnifies and holds harmless Xxxxxx Xxxxxxx from and against any losses,
claims, damages, expenses and liabilities to which Xxxxxx Xxxxxxx may become
liable arising out of or relating to (i) any assertion that this agreement does
not satisfy Rule 10b5-1 or that any of the sales made pursuant to this agreement
constitute violations by Seller of Rule 10b-5 or of state securities laws or
regulations, (ii) any related regulatory investigation or inquiry relating to
this agreement or the Sales Plan or (iii) the services performed by Xxxxxx
Xxxxxxx in connection with the provisions of this Sales Plan unless, in any
case, there is a final determination by an arbitration panel or court of
competent jurisdiction that Xxxxxx Xxxxxxx has been grossly negligent in
connection with services provided hereunder. This indemnification shall survive
for three years following termination of the Sales Plan.
(b) Notwithstanding any other provision hereof, Xxxxxx Xxxxxxx
shall not be liable to Seller for:
(i) special, indirect, punitive, exemplary or consequential
damages, or incidental losses or damages of any kind, even if
advised of the possibility of such losses or damages or if such
losses or damages could have been reasonably foreseen, or
(ii) any failure to perform or to cease performance or any
delay in performance that results from a cause or circumstance that
is beyond its reasonable control, including but not limited to
failure of electronic or mechanical equipment, strikes, failure of
common carrier or utility systems, severe weather, market
disruptions or other causes commonly known as "acts of God".
F. AGREEMENT TO ARBITRATE
1. (a) Any dispute between Seller and Xxxxxx Xxxxxxx arising out of,
relating to or in connection with this Sales Plan or any transaction relating to
this Sales Plan shall be determined by arbitration only before the New York
Stock Exchange, Inc.;
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the National Association of Securities Dealers, Inc.; or the Municipal
Securities Rulemaking Board, as Seller may elect. If Seller makes no written
election addressed to Xxxxxx Xxxxxxx by registered mail within ten business days
after receiving a written demand for arbitration from Xxxxxx Xxxxxxx, Seller
authorizes Xxxxxx Xxxxxxx to elect one of the above listed forums for Seller.
(b) Unless rules of the arbitral forum dictate otherwise, any
arbitration proceeding between Seller and Xxxxxx Xxxxxxx shall be held at a
location at which the selected forum regularly conducts such proceedings nearest
to the Xxxxxx Xxxxxxx office carrying Seller's accounts at the time the claim
arose; this venue shall apply even if Seller has related disputes with other
parties which cannot be resolved in the same locale. Except for simplified
proceedings (small claims), any arbitration proceeding between Seller and Xxxxxx
Xxxxxxx shall be heard and decided by a panel of not fewer than three
arbitrators.
(c) The law of the State of New York shall apply in all respects,
including but not limited to determination of applicable statutes of limitation
and available remedies. The award of the arbitrator or a majority of arbitrators
shall be final, and judgment on the award may be entered in any state or federal
court having jurisdiction.
2. Seller represents that Seller understands the terms of the above
arbitration clause as follows:
(i) Arbitration is final and binding on the parties.
(ii) The parties are waiving their right to seek remedies in
court, including the right to jury trial.
(iii) Pre-arbitration discovery is generally more limited than
and different from court proceedings.
(iv) The panel of arbitrators will typically include a
minority of arbitrators who were or are affiliated with the
securities industry.
(v) The panel of arbitrators will typically include a minority
of arbitrators who were or are affiliated with the securities
industry.
(vi) No person shall bring a putative or certified class
action to arbitration, nor seek to enforce any pre-dispute
arbitration agreement against any person who has initiated in court
a putative class action or who is a member of a putative class who
has not opted out of the class with respect to any claims
encompassed by the putative class action until:
(A) the class certification is denied;
(B) the class is decertified; or
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(C) the customer is excluded from the class by the
court.
Such forbearance to enforce an agreement to arbitrate shall not constitute a
waiver of any rights under this Sales Plan except to the extent stated herein.
G. GENERAL.
1. Proceeds from each sale of Stock effected under the Sales Plan will be
delivered to Seller's account (SPECIFY ACCOUNT) 14-A7784 on a normal three-day
settlement basis less any commission, commission equivalent, xxxx-up or
differential and other expenses of sale to be paid to Xxxxxx Xxxxxxx [, provided
that any commission hereunder shall be $.06 per share of Stock sold].
2. In the event that it is necessary for Xxxxxx Xxxxxxx to borrow or
purchase shares of Stock in order to complete any sale on behalf of Seller
pursuant to this Sales Plan, Seller authorizes Xxxxxx Xxxxxxx to borrow or
purchase such shares and agrees to be responsible for any expense or loss which
Xxxxxx Xxxxxxx may sustain relating to such borrowing or purchase, including any
expense or loss Xxxxxx Xxxxxxx may sustain as a result of its inability to
borrow or purchase shares of the Stock to complete its delivery obligation.
3. This Sales Plan constitutes the entire agreement between the parties
with respect to this Sales Plan and supersedes any prior agreements or
understandings with regard to the Sales Plan.
4. (a) All notices to Xxxxxx Xxxxxxx under this Sales Plan shall be given
to Xxxxxx Xxxxxxx'x compliance office in the manner specified by this Sales Plan
by telephone at 000-000-0000, by facsimile at 000-000-0000 or by certified mail
to the address below:
Xxxxxx Xxxxxxx & Co. Incorporated
Attn: Xxxxxx Koppernal or Compliance Officer
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel No.:
(b) All notices to Seller under this Sales Plan shall be given to
Xxxx Xxxx, by telephone at 000-000-0000, by facsimile at 000-000-0000 or by
certified mail to the address below:
Xxxx Xxxx
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
5. Seller's rights and obligations under this Sales Plan may not be
assigned or delegated without the written permission of Xxxxxx Xxxxxxx.
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6. This Sales Plan may be signed by any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7. If any provision of this Sales Plan is or becomes inconsistent with any
applicable present or future law, rule or regulation, that provision will be
deemed modified or, if necessary, rescinded in order to comply with the relevant
law, rule or regulation. All other provisions of this Sales Plan will continue
and remain in full force and effect.
8. This Sales Plan will be governed by and construed in accordance with
the internal laws of the State of New York and may be modified or amended only
by a writing signed by the parties hereto.
9. Seller and Xxxxxx Xxxxxxx acknowledge and agree that this Sales
Plan is a "securities contract," as such term is defined in Section 741(7) of
Title 11 of the United
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IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of the
date first written above.
The Estate of Xxxxxxx Xxxxxxx
By /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
By /s/ Xxxx X. Blue
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Xxxx X. Blue
Xxxxxx Xxxxxxx & Co. Incorporated
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Name:
Title:
