EX-10.18.1
EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter referred to as the
"Agreement") is made and entered into as of the 1st day of May, 2003 by and
between Xxxxxx X. Xxxx (hereinafter referred to as "Employee") and Atlas Air
Worldwide Holdings, Inc., a, Delaware corporation (hereinafter referred to as
"Atlas" or the "Company").
WHEREAS, Atlas believes that it is in the best interests of Atlas to
retain the services of the Employee and the Employee desires an affiliation with
Atlas, on the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, Employee warrants that Employee is entering voluntarily
into this Agreement, and that no promises or inducements for this Agreement have
been made outside of the terms and conditions referred to herein, and Employee
enters into this Agreement without reliance upon any statement or representation
by Atlas or any other person, concerning any fact material hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable considera-
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tion, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, covenant and agree as follows:
1. DEFINITIONS
1.1 For purposes of this Agreement, "CAUSE" as used herein means (i)
any act or acts of material dishonesty taken by the Employee, (ii) the failure
of the Employee to comply with any of the Employee's obligations within ten (10)
days of written notice from Atlas, (iii) any violation by Employee Of Atlas
corporate policies as set forth in the Employee Compliance Manual, Employee
Handbook or related corporate policies of which Employee has received written
notice; provided that, if such violation is subject to cure, Employee shall have
ten (10) days within which to cure such violation after receipt of written
notice thereof, or (iv) the conviction of or "no contest" plea by the Employee
to any misdemeanor of moral turpitude or, any felony.
1.2 "EMPLOYMENT PERIOD" shall be defined as the period commencing on
the date hereof and extending until may 1, 2008, subject to earlier termination
as set forth in Section 4 below and extension as provided in the next succeeding
sen-
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tence. On May 1, 2008 and on each anniversary thereafter, the Employment Period
shall be automatically extended for an additional one year unless Atlas gives
notice in writing to the employee or the Employee gives notice in writing to
Atlas at least three months prior to May 1, 2008 or such anniversary, as the
case may be, that the Employment Period is not to be so extended.
1.3 "PERMANENT DISABILITY" as used herein shall be deemed to have
been sustained by Employee if Employee shall have been continuously disabled
from performing the duties assigned to Employee during the Employment Period for
a period of six (6) consecutive calendar months, and such Permanent Disability
shall be deemed to have commenced on the day following the end of such six (6)
consecutive calendar months.
1.4 "CONFIDENTIAL OR PROPRIETARY" as used herein shall refer to all
information relative to the plans, structure and practices, including
information relating to its customers, contracts and aircraft of Holdings (as
defined below) or any affiliate or subsidiary thereof, except:
(a) information that is or becomes a matter of public knowledge
through no fault of the Employee; or
(b) information rightfully received by the Employee from a third
party without a duty of confidentiality; or
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(c) information disclosed to Employee with Atlas' prior approval for
public dissemination.
1.5 "GOOD REASON" as used herein means (i) a reduction during the
term of this Agreement in either the Employee's Base Annual Salary, as adjusted
from time to time, or (ii) a substantial and material reduction in the
Employee's title or job responsibilities from the Employee's title or job
responsibilities at the commencement of this Agreement, (iii) any reduction,
within twelve (12) months following a Change of Control, in the Employee's title
or job responsibilities from the Employee's title or job responsibilities at the
commencement of this Agreement, and (iv) a requirement by Atlas that Employee
relocate his principal residence from the Long Beach, California area. For
purposes of this Section 1.5, "Change of Control" shall mean the acquisition by
any person, entity or "group" within the meaning of section 1.3(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") (excluding,
for this purpose, (x) the Estate of Xxxxxxx Xxxxxxx, Xxxxxxx Limited
Partnership, Xxxxxxx, Inc., the Xxxxxxx Foundation and Xxxxx X. Xxxxxxx and her
family members and (y) any employee benefit plan of Atlas, Holdings or its
affiliates) of beneficial ownership, within the meaning of Rule 13(d)(c)
promulgated under the Exchange Act, of greater than fifty percent
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(50%) of the combined voting power of the outstanding voting securities of
Holdings entitled to vote generally in the election of directors.
2. EMPLOYMENT AND OBLIGATIONS OF EMPLOYES
Atlas and Employee agree to the following rights, obligations and
duties with respect to employment:
2.1 EMPLOYMENT. During the Employment Period, Atlas agrees to employ
the Employee as its Senior Vice President and Chief Marketing Officer. The scope
of Employee's responsibilities shall be as determined by the Board of Directors
and/or appropriate officers of Atlas. If the Board of Directors of Atlas
requests Employee to serve in any capacity for Atlas or any of its respective
subsidiaries or affiliates, Employee agrees that Employee shall serve such
capacity, without any additional compensation.
2.2 OBLIGATIONS OF EMPLOYEE. During the Employment Period, the
Employee agrees, except when prevented by illness or Permanent Disability or
during a period of vacation, to devote substantially all of Employee's business
time and attention to the good faith performance of the duties contemplated.
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2.3 PRINCIPAL RESIDENCE OF EMPLOYEE. During the Employment Period,
Employee shall maintain Employee's principal residence in the Long Beach,
California, area unless otherwise agreed. In the event the parties agree on a
relocation, the Company shall reimburse Employee for reasonable moving expenses
to be determined and paid by Atlas.
3. COMPENSATION
During the Employment Period, Atlas will pay Employee as follows:
3.1 BASE ANNUAL SALARY. Atlas will pay Employee a base annual salary
(the "Base Annual Salary") of USD $200,000.00 per annum, payable in semi-monthly
installments. The Company shall review Base Salary not less frequently than
every six months for the first two years of the Agreement, it being understood
that Employee's Base Annual Salary shall be increased at least USD $12,500.00 as
of each of the aforementioned review periods such that Employee's Base Annual
Salary shall be no less than USD $350,000.00 as of May 1, 2005; any reviews and
increases greater than the aforementioned amounts or thereafter shall be at the
sole discretion of the Company.
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3.2 INCENTIVE BONUS PAYMENTS. Employee will receive a sign on bonus
of $215,000.00 within 21 days of the date of this Agreement. In addition,
Employee will be eligible to receive an annual incentive bonus under the annual
Executive Incentive Program ("EIP") at a target of 50% of Base Salary (or, if a
greater percentage, such percentage offered to similarly situated executives of
the Company) based on performance, including financial and individual
performance for each calendar year (prorated for 2003 as provided below) during
the Employment Period. For 2003, Employee will receive $50,000 within 15 days of
this Agreement for the period of January through April 2003 (in recognition of
support to Atlas during this period). In addition, for 2003, Employee shall be
guaranteed an EIP bonus of not less than full target (i.e. 50% of Base Salary)
prorated accordingly for the period of less than full year (i.e. May through
December 2003). For 2004, Employee shall be guaranteed an EIP bonus of not less
than 75% of the targeted amount. For 2005, Employee shall be guaranteed an EIP
bonus of not less than 50% of the targeted amount. For 2006, employee shall be
guaranteed an EIP bonus of not less than 25% of the targeted amount. There shall
be no guarantee of EIP bonus for years after 2006. Employee will also be able,
subject to eligibility requirements as set forth in each respective
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program, to participate in the Company's Long Term Incentive Program, Deferred
Compensation Plan, Annual Stock Option Plan, Employee Stock Purchase Plan,
Profit Sharing and 401(k) Plan, details of which have already been provided to
Employee.
3.3 BENEFITS. Employee and Employee's dependents shall be entitled
to participate in the Atlas health insurance plan, and Atlas will contribute to
Employee's monthly premium as provided by such plan. Atlas reserves the right to
discontinue participation in any health insurance plan at any time with the
understanding that Atlas will comply in full measure with all state and federal
laws regarding the changes of insurance coverage by private employers and
notification under the Consolidated Omnibus Budget Reconciliation Act. Employee
also shall be entitled, to the same extent and at a level commensurate with the
corporate officers of Atlas, to participate in any other benefit plans or
arrangements of Atlas.
3.4 FRINGE BENEFITS. Employee will be entitled to a car allowance in
the amount of $700.00 per month.
4. TERMINATION OF EMPLOYMENT PERIOD
The Employment Period shall terminate under the following terms and
conditions:
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4.1 AT WILL ARRANGEMENT. Atlas may terminate the Employment Period
upon written notice to the Employee at any time and for any reason. Atlas and
Employee expressly understand and agree that the employment relationship is
at-will. Atlas is entitled to sever the employment relationship for any reason.
Employee hereby agrees to give Atlas at least thirty (30) days prior written
notice of Employee's voluntary termination of employment for other than Good
Reason.
4.2 RIGHTS FOLLOWING TERMINATION.
(a) If the Employment Period is terminated by Atlas for reasons
other than Cause (including the giving of notice by Atlas pursuant to Section
1.2 hereof of Atlas' election not to extend the Employment Period) or if the
Employment Period is terminated by the Employee for Good Reason, and subject to
Employee's execution of a release upon terms and conditions acceptable to Atlas,
the Employee shall be entitled to: (i) receive 18 months of Employee's monthly
salary paid in a lump sum within ten (10) days of Employee's execution of the
aforementioned release; and (ii) continued coverage and rights and benefits
available under the employee benefit programs of Atlas as provided in Section
3.3 above for a period of 12 months from the date of termination subject to the
Employee paying the same
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portion for the premiums for such coverage as he paid during his employment with
the Company; PROVIDED, HOWEVER, that any such continued coverage shall cease in
the event Employee obtains comparable coverage in connection with subsequent
employment, and to the extent Atlas is unable to continue such coverage, Atlas
shall provide the Employee with economically equivalent benefits determined on
an after-tax basis.
(b) Upon the death or Permanent Disability of the Employee, the
Employment Period shall terminate and the Employee's Base Annual Salary which is
accrued for the current pay period but unpaid as of the date of such death or
Permanent Disability shall be paid to the Employee or Employee's personal
representative. In addition, upon the death or Permanent Disability of the
Employee, Employee or Employee's personal representative shall be entitled to
the compensation and benefits as set forth in Section 4.2 (a)(i) and (ii) above.
(c) If the Employment Period is terminated by Atlas for Cause or by
the Employee for other than Good Reason (including the giving of notice by
Employee pursuant to Section 1.2 hereof of Employee's election not to extend the
Employment Period), the Employee shall be entitled to receive Em-
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ployee's Base Annual Salary which is accrued for the current pay period but
unpaid as of the date of termination.
4.3 NON-COMPETITION PROVISION. (a) Employee covenants and agrees
that Employee will not, at any time, reveal, divulge or make known to any third
party any confidential or proprietary records, data, trade secrets, pricing
policies, strategy, rate structure, personnel policy, management methods,
financial reports, methods or practice of obtaining or doing business, or any
other confidential or proprietary information of Atlas or any of its
subsidiaries or affiliates (collectively the "Atlas Companies" and each, an
"Atlas Company") which is not in the public domain.
(b) In addition, in the event the Employment Period is terminated by
the Company for Cause or by Employee for Good Reason (or if the termination of
the Employment Period is by the Company for other than Cause or by Employee for
other than Good Reason but the Company offers Employee the benefits set forth in
Article 4.2(a) above), Employee covenants and agrees that, at no time before
twelve (12) months after Employee's termination of employment with Atlas, will
Employee engage in any of the following activities directly or indirectly, for
any
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reason, whether for Employee's own account or for the account of any other
person, firm, corporation or other organization:
(i) solicit, employ or otherwise interfere with any of the Atlas
Companies' contracts or relationships with any current
employee or individual who has been employed by the Atlas
Companies within six (6) months of Employee's termination of
employment, officer, director or any independent contractor
whether the person is employed by or associated with an Atlas
Company on the date of this Agreement or at any time
thereafter; or
(ii) solicit or otherwise interfere with any of the Atlas
Companies' contracts or relationships with any customer or
client.
(iii) accept employment with, or give advice to any direct
competitor of Atlas or any of its subsidiary or affiliated
companies, including but not limited to air cargo carriers,
air cargo divisions or cargo affiliates of other airlines, or
companies that lease cargo aircraft or sell
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cargo aircraft capacity as a significant part of their
business on an ACMI, block space, wet lease or charter basis.
5. DISPUTE RESOLUTION AND CHOICE OF LAW
5.1. NEGOTIATION. If a dispute between the Parties arises under this
Agreement, the Parties shall negotiate in good faith in an attempt to resolve
their differences. The obligation of the Parties to negotiate in good faith
shall commence immediately, and shall continue for a period of at least thirty
(30) days ("Negotiation").
If Negotiation fails to resolve a dispute between the Parties within
the first thirty (30) days, either Party may proceed to demand mediation
("Mediation"). Upon agreement of both Parties, arbitration may be initiated
immediately, in lieu of Mediation.
5.2. MEDIATION. If a dispute between the Parties arises under this
Agreement and has not been resolved under the Negotiation procedures described
herein, either Party may require, by written notice to the other Party, that
Negotiation
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be facilitated by a single mediator, to be selected by the Parties (the
"Mediator").
The parties shall select the Mediator within ten (10) days after
receipt of notice. If the Parties are unable to agree on the Mediator, the
Mediator shall be selected by Atlas, but the selected Mediator shall be
independent of Atlas and its affiliates. The fees of the Mediator shall be paid
by the Company.
With the assistance of the Mediator, the Parties shall continue
Negotiation in good faith for a period not to exceed thirty (30) days. If the
Parties are unable to reach agreement during this period, the Mediator shall be
discharged and the Parties' obligations under this Mediation section shall be
deemed satisfied.
5.3. ARBITRATION. Subject to the duty to negotiate and mediate set
forth above, all disputes, claims, or causes of action arising out of or
relating to this Agreement or the validity, interpretation, breach, violation,
or termination thereof not resolved by Mediation, shall be finally and solely
determined and settled by arbitration, to be conducted in the State of New York,
USA, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA")
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in effect at the date of arbitration ("Arbitration"). This Agreement shall be
governed by and construed in accordance with the laws of the state of New York,
without reference to principles of conflict of laws.
Any Arbitration commenced pursuant to this Agreement shall be
conducted by a single neutral arbitrator, who shall have a minimum of three (3)
years of commercial experience (the "Arbitrator"). The Parties shall meet within
ten (10) days of failure to resolve by Mediation to attempt to agree on an
Arbitrator. Absent agreement at this meeting, the Arbitrator shall be selected
by AAA. Such Arbitrator shall be free of any conflicts with Atlas and shall hold
a hearing within thirty (30) days of the notice to Employee.
If the terms and conditions of this Agreement are inconsistent with
the Commercial Arbitration Rules of the AAA, the terms and conditions of this
Agreement shall control.
The Parties hereby consent to any process, notice, or other
application to said courts and any document in connection with Arbitration may
be served by (i) certified mail, return receipt requested; (ii) by personal
service; or (iii) in such other manner as may be permissible under the rules of
the applicable court or Arbitration tribunal; PROVIDED, HOWEVER, a
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reasonable time for appearance is allowed. The Parties further agree that
Arbitration proceedings must be instituted within one (1) year after the
occurrence of any dispute, and failure to institute Arbitration proceedings
within such time period shall constitute an absolute bar to the institution of
any proceedings and a waiver of all claims.
The Parties shall equally divide all costs and expenses incurred in
such arbitration proceeding, provided, however, if the arbitrator rules in favor
of the Employee on all or substantially all of his claims, the Company shall
reimburse Employee his reasonable attorney fees for the arbitration proceedings.
The Judgment of the Arbitrator shall be final and either Party may
submit such decision to courts for enforcement thereof.
6. SEVERABILITY AND ENFORCEABILITY
It is expressly acknowledged and agreed that the covenants and
provisions hereof are separable; that the enforceability of one covenant or
provision shall in no event affect the full enforceability of any other covenant
or provision
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herein. Further, it is agreed that, in the event any covenant or provision of
this Agreement is found by any court of competent jurisdiction or Arbitrator to
be unenforceable, illegal or invalid, such invalidity, illegality or
unenforceability shall not affect the validity or enforceability of any other
covenant or provision of this Agreement. In the event a court of competent
jurisdiction or an Arbitrator would otherwise hold any part hereof unenforceable
by reason of its geographic or business scope or duration, said part shall be
construed as if its geographic or business scope or duration had been more
narrowly drafted so as not to be invalid or unenforceable.
7. MISCELLANEOUS
7.1 NO MITIGATION. The amounts to be paid to Employee are net to
Employee, without any reduction or duty to mitigate, except for taxes, other
governmental charges or amounts owed to Atlas by Employee, and all payments to
be made hereunder shall be net of all applicable income and employment taxes
required to be withheld therefrom.
7.2 Pro-Ration In the event the Employment Period is terminated in
the middle of any calendar month, the amount due for such month shall be
pro-rated on a daily basis.
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7.3 NO WAIVER EXCEPT IN WRITING. No waiver or modification of this
Agreement or any of the terms and conditions set forth herein shall be effective
unless submitted to a writing duly executed by the parties.
7.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding on Atlas
and any successor thereto, whether by reason of merger, consolidation or
otherwise. The duties and obligations of Employee may not be assigned by
Employee.
7.5 CONFIDENTIALITY OF TERMS. Atlas and Employee agree that the
terms and conditions of this Agreement are confidential and that they will not
disclose the terms of this Agreement to any third parties, other than the
Employee's spouse, their attorneys, auditors, accountants or as required by law
or as may be necessary to enforce this Agreement.
7.6 FULL UNDERSTANDING. Employee declares and represents that
Employee has carefully read and fully understands the terms of this Agreement,
has had the opportunity to obtain advice and assistance of counsel with respect
thereto, and knowingly and of Employee's own free will, without any duress,
being fully informed and after due deliberation, voluntarily accepts the terms
of this Agreement and represents that
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the execution, delivery and performance of this Agreement does not violate any
agreement to which Employee is subject.
7.7 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the parties with respect to the subject matter hereof
and supersedes all prior agreements, arrangements, and understandings between
the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
on the date and year first above written.
Xxxxxx X. Xxxx Atlas Worldwide Holdings, Inc.
/s/ Xxxxxx X. Xxxx /s/ Atlas Worldwide Holdings, Inc.
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AMMENDMENT TO EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXX
Whereas, Atlas Air Worldwide Holdings, Inc. ("ATLAS") and Xxxxxx X.
Xxxx ("EMPLOYEE") wish to update, amend or modify provisions of the Employment
Agreement dated May 1, 2003 between them (the "AGREEMENT") as set forth in this
amendment ("AMENDMENT").
The terms and conditions of the above-referenced Agreement is hereby
updated, amended and modified as follows:
1.0 Section 3 is amended by striking "ATLAS" in line 1 and replacing it
with "Atlas Air, Inc., a wholly-owned subsidiary of ATLAS".
2.0 Section 3.1 is amended by striking "ATLAS" in line 1 and replacing
it with "Atlas Air, Inc., a wholly-owned subsidiary of ATLAS".
With the exception of the amendments and modifications reflected in
Paragraphs 1.0 and 2.0 of this Amendment,
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THE AGREEMENT otherwise remains in full force and effect.
AGREED TO AND ACCEPTED BY:
EMPLOYEE
/s/ Xxxxxx X. Xxxx 1/24/04
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Xxxxxx X. Xxxx Date
ATLAS AIR WORLDWIDE HOLDINGS, INC.
BY: /s/ Xxxx Xxxxxxxx 1/24/04
---------------------- ----------------
Name: Xxxx Xxxxxxxx Date
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXX
WHEREAS, Atlas Air Worldwide Holdings, Inc. ("Atlas") and Xxxxxx X. Xxxx
("Employee") wish to update, amend or modify the provisions of the Employment
Agreement dated as of May 1, 2003 between them (the "Agreement") as set forth in
this amendment (the "Amendment").
The terms and conditions of the Agreement are hereby updated, amended and
modified as follows:
Paragraph 3.2 is amended so that, after amendment, it shall read in its
entirety as follows:
"3.2 INCENTIVE BONUS PAYMENTS. Employee will receive a sign on bonus of
$215,000 within 21 days of the date of this Agreement. In addition, Employee
will be eligible to receive an annual incentive bonus under the annual Executive
Incentive Program ("EIP") at a target Of 50% of Base Salary (or, if a xxxxxx
percentage, such percentage offered to similarly situated executives of the
Company) based on performance, including financial and individual performance
for each calendar year during the Employment period. For 2003, Employee will
receive an EIP bonus of $50,000 within 15 days of this Agreement. For fiscal
years beginning after 2004 (i.e., 2005 and beyond) the Employee shall have the
right to terminate the Employment Period if he fails to receive at least his
target EIP bonus for a period of two consecutive fiscal years, provided Employee
must notify the Company of his election to terminate hereunder by June 30th of
the year following the expiration of the second consecutive fiscal year where no
EIP bonus was paid. Under such circumstances, Employee shall be entitled to
receive 12 months of the Employee's monthly salary paid in a lump sum
within thirty (30) days of Employee's execution of a release upon terms and
conditions acceptable to Atlas and Employee shall be entitled to continued
coverage and rights and benefits available under the employee benefit programs
of Atlas as provided in Section 3.3 above for a period of 12 months from the
date of termination subject to the Employee paying the same portion for the
premiums for such coverage as he paid during his employment with the Company;
PROVIDED, HOWEVER, that any such continued coverage shall cease in the event
Employee obtains comparable coverage in connection with subsequent employment,
and to the extent Atlas is unable to continue such coverage, Atlas shall provide
the Employee with economically equivalent benefits determined on an after-tax
basis. Employee shall also be able, subject to eligibility requirements as set
forth in each respective program, to participate in the Company's Long Term
Incentive Program, Profit Sharing, 401(k) Plan, and any details of which have
already been or will be provided to Employee."
With the exception of the amendments and modifications reflected in
Paragraph 3.2 of this Amendment, the Agreement, as previously amended, otherwise
remains in full force and effect.
AGREED TO AND ACCEPTED BY:
/s/ Xxxxxx X. Xxxx 20 April 2004
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Xxxxxx X. Xxxx Date
ATLAS AIR WORLDWIDE
HOLDINGS, INC.
/s/ Xxxx Xxxxxxxx 20 April 2004
------------------------- -----------------
Name: Date
Title:
