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EXHIBIT 10.110
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of February 16, 1998 ("Agreement"),
is made by and between XXXXXXX X. XXXXX ("EMPLOYEE") and ATLAS AIR, INC.
("ATLAS").
WHEREAS, EMPLOYEE warrants that he is entering voluntarily into this
Agreement, and that no promises or inducements for this Agreement have been made
outside 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 covenants contained herein,
EMPLOYEE and ATLAS agree to this Employment Agreement for implementation
effective February 16, 1998.
1. Definitions. 1.1 For purposes of this Agreement, "Cause" means (i)
any act or acts of material dishonesty by EMPLOYEE; (ii) failure of EMPLOYEE to
comply with any of EMPLOYEE'S obligations under this Agreement within ten (10)
days of written notice of such notice; or (iii) the conviction of or "no
contest" plea by EMPLOYEE to any misdemeanor of moral turpitude or any felony;
or (iv) any violation of ATLAS corporate policies as set forth in the Employee
Handbook; provided that, if such violation is subject to cure, EMPLOYEE shall
have ten (10) days within which to cure such violation.
1.2 "Permanent Disability" as used herein shall be deemed to have
been sustained by EMPLOYEE during his employment if he shall have been
continuously disabled
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from performing the duties assigned to him 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 consecutive calendar months.
1.3 For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred upon the happening of two of the following:
1.3.1 Xxxxxxx Xxxxxxx ceasing to have a direct or indirect
beneficial ownership (within the meaning of Rule 13(d)(3) promulgated under the
Securities and Exchange Act of 1934) of at least 51% of the combined voting
power of ATLAS's then outstanding voting securities entitled to vote generally
in the election of directors; or
1.3.2 Xxxxxxx Xxxxxxx ceasing to be, on a substantially full-time
basis, the Chief Executive Officer of ATLAS; or
1.3.3 The acquisition by any person, entity or "group," within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(excluding, for this purpose, any employee benefit plan of ATLAS or its
subsidiaries which acquires beneficial ownership of voting securities of ATLAS)
of beneficial ownership, within the meaning of Rule 13(d)(3) promulgated under
the Securities and Exchange Act of 1934, of a percentage of the combined voting
power of ATLAS's then outstanding voting securities entitled to vote generally
in the election of directors which is greater than the percentage beneficially
owned directly or indirectly by Xxxxxxx Xxxxxxx.
1.4 "Good Reason" shall mean (i) a substantial reduction in EMPLOYEE's
title; (ii) a substantial change to EMPLOYEE's duties; (iii) or a reduction in
EMPLOYEE's Base Annual Salary below $175,000.
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1.5 "Employment Period" shall mean from February 16, 1998 through
February 15, 2001.
1.6 "Confidential or Proprietary" as used herein shall refer to all
non-public information relative to ATLAS's structure and practices except:
1.6.1 Information that is or becomes a matter of public
knowledge through no fault of EMPLOYEE; or
1.6.2 Information rightfully received by EMPLOYEE from a third
party without a duty of confidentiality; or
1.6.3 Information disclosed to EMPLOYEE with ATLAS's prior
written approval for public dissemination.
2. Employment and Obligations of Employee.
2.1 Employment. During the Employment Period, ATLAS agrees to employ
EMPLOYEE, and EMPLOYEE shall serve, as Vice President and Chief Financial
Officer of ATLAS. The scope of EMPLOYEE's responsibilities shall be as
determined by the Board of Directors of ATLAS and/or appropriate officers of
ATLAS. EMPLOYEE shall not be entitled to any additional compensation for serving
in any other office or capacity for ATLAS or any of its subsidiaries.
2.2 Obligations of EMPLOYEE. EMPLOYEE agrees, except when prevented
by illness, Permanent Disability or period of vacation, to devote substantially
all of his business time and attention to the good-faith performance of the
duties contemplated hereunder.
2.3 Principal Residence of EMPLOYEE. EMPLOYEE shall maintain his
principal residence in the Denver, Colorado area; provided, however, that
EMPLOYEE shall move to a new location upon request by ATLAS and ATLAS shall pay
to EMPLOYEE
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reasonable and customary moving expenses (grossed up for federal and state
taxes). In the event the new location has a higher cost of living than Denver,
ATLAS will compensate EMPLOYEE for the increase in cost of living.
3. Compensation. ATLAS shall pay to EMPLOYEE, during the period of his
employment hereunder, as follows:
3.1 Base Salary. ATLAS shall pay to EMPLOYEE, on a semi-monthly
basis, a Base Salary of not less than Seven Thousand Two Hundred Ninety-one and
66/100 Dollars ($7,291.66), which equals an approximate annual Base Salary of
One Hundred Seventy-five Dollars ($175,000).
3.2 Incentive Bonus Plan. Under ATLAS's Incentive Bonus Plan,
EMPLOYEE shall be eligible to receive annually a target bonus in an amount equal
to a minimum of fifty percent (50%) of his annual Base Salary. EMPLOYEE shall be
eligible to participate in any successor Plan.
3.3 Stock Options. EMPLOYEE shall be entitled to an initial stock
option grant of 25,000 shares of ATLAS stock. Commencing on the first
anniversary date of this Agreement, and for two (2) years thereafter on said
anniversary date, these shares shall vest in the following installments: 8,333
options on February 16,1999; 8,333 options on February 16, 2000; and 8,334
options on February 16, 2001. The option exercise price shall be Twenty-nine and
06/100 Dollars (USD $29.06). All other terms of this grant are contained in the
Stock Option Agreement which is incorporated herein and made a part hereof.
3.4 Loan. EMPLOYEE shall receive from ATLAS a loan in the amount of
One Hundred Forty-six Thousand Five Hundred Three Dollars (USD $146,503) for a
period of two (2) years, with principal and accrued interest due at maturity
(February 16, 2000). Interest
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shall be at the lowest fixed rate allowable without penalty under IRS guidelines
(5.54% per annum).
3.5 Profit Sharing. Beginning at the end of EMPLOYEE's thirteenth (13th)
month of employment hereunder (March 31, 1999), EMPLOYEE shall be entitled to
participate in ATLAS's profit sharing plan which guarantees EMPLOYEE a minimum
of ten percent (10%) of his annual Base Salary in profit sharing benefits
through 1999, plus entitles EMPLOYEE to receive any profit sharing payments
which exceed the minimum 10% guarantee.
3.6 401K Plan. On the first day of the month following ninety (90) days
of employment hereunder (June 1, 1998), EMPLOYEE shall become eligible to
participate in ATLAS's 401K Plan which provides for a fifty percent (50%) match
by ATLAS of EMPLOYEE's contribution, up to a maximum contribution of ten percent
(10%) of EMPLOYEE's annual Base Salary (as it may be adjusted), plus profit
sharing.
3.7 Stock Purchase Plan. On the first day of the month following one (1)
full year of service, EMPLOYEE will be eligible to participate in ATLAS's Stock
Purchase Plan whereby EMPLOYEE may purchase ATLAS stock at a fifteen percent
(15%) discount, up to an aggregate of 15% of EMPLOYEE's annual Base Salary.
3.8 Health Care. On the first day of the month following ninety (90)
days of employment hereunder, EMPLOYEE shall be eligible for benefits provided
under ATLAS's "cafeteria plan," as described in the materials received by
EMPLOYEE with the January 30, 1998 offer of employment letter signed by Xxxxxxx
X. Xxxxxxx on behalf of ATLAS, and agreed to by EMPLOYEE (evidenced by
EMPLOYEE's signature of approval dated February 2, 1998). ATLAS shall reimburse
EMPLOYEE for costs incurred by him under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") from his date of employment to his eligibility
date.
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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 COBRA.
3.9 Bonus. ATLAS shall extend to EMPLOYEE a cash bonus in the total
amount of Fifty Thousand Dollars (USD $50,000).
3.10 Relocation Expenses. EMPLOYEE shall receive on or about
February 16, 1998, a lump-sum relocation allowance of Thirty Thousand Dollars
($30,000). This amount will be "grossed up" to cover federal and state taxes. In
addition, ATLAS shall reimburse to EMPLOYEE all real estate commissions and
closing costs incurred in both the sale of the Marietta, Georgia property and
purchase of the Denver, Colorado area property. The total amount of those
expenses will be "grossed up" to cover federal and state taxes.
3.11 Corporate Automobile. EMPLOYEE will be entitled to professional
and personal use of a company vehicle at a price not to exceed $40,000.00. The
decision to lease or purchase is at the discretion of ATLAS. Title to the
automobile shall be in the name of ATLAS. ATLAS will be responsible for all
insurance premium payments related to the vehicle and all other vehicle related
expenses, except that EMPLOYEE will pay the costs of fuel.
4. Termination of Employment Period. The Employment Period contemplated
hereunder shall terminate under the following conditions:
4.1 At-Will Arrangement. The Employment Period may be terminated
hereunder at any time, for any reason, by either ATLAS or EMPLOYEE upon written
notice of the terminating party to the other. ATLAS and EMPLOYEE each expressly
understand and agree that the employment relationship defined hereunder is
"at-will."
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4.2 Upon EMPLOYEE's death or Permanent Disability, the Employment
Period contemplated hereunder shall terminate, and EMPLOYEE's unpaid annual Base
Salary and profit sharing amounts shall be paid to EMPLOYEE or his personal
representative as of that date, but no other benefits or remuneration hereunder.
4.3 If the Employment Period contemplated hereunder is terminated by
ATLAS other than for Cause or by EMPLOYEE for Good Reason, and subject to
execution of a Release upon terms acceptable to ATLAS, EMPLOYEE shall receive
any unpaid annual Base Salary or profit sharing amounts then due under Section
3.1 hereof, plus One Hundred Seventy-five Thousand Dollars (USD $175,000).
4.4 Non-Competition Provision. EMPLOYEE covenants and agrees that he
will not, at any time before five (5) years after his termination of employment
with ATLAS, 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 affiliates which is not in the
public domain, except as required by law. EMPLOYEE further agrees that at no
time before two (2) years after his termination of employment with ATLAS will he
engage in any of the following activities directly or indirectly, for any
reason, whether for his own account or for the account of any other person,
firm, corporation or other organization:
4.4.1 Solicit, employ, or otherwise interfere with any of
ATLAS's contracts or relationships with any client, employee, officer, director
or any independent contractor, whether the person is employed by or associated
with ATLAS on the date of this Agreement or at any time thereafter.
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4.4.2 Solicit, accept, or otherwise interfere with any of ATLAS's
contracts or relationships with any independent contractor, customer, client or
supplier, or any person who is a bonafide prospective independent contractor,
customer, client or supplier of ATLAS.
4.4.3 EMPLOYEE agrees that he will neither accept employment with or
give advice to any air cargo carrier or an air cargo division or affiliate of
any other airline for a period of two (2) years after termination of employment.
4.4.4 The parties agree and intend that breach of this
non-competition clause shall subject EMPLOYEE to the full measure of contract
and equitable damages.
5. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without reference to
principles of conflict of laws, and any litigation relating to the Agreement
shall be tried in Colorado courts (state, local and federal, as applicable).
6. Severability and Enforceability. It is expressly acknowledged and
agreed that the covenants and provisions hereof are severable; that the
enforceability of one covenant or provision shall in no event affect the full
enforceability of any other covenant or provision herein. Further, it is agreed
that in the event any covenant or provision of this Agreement is found by any
court of competent jurisdiction to be unenforceable, illegal or invalid, such
invalidity, illegality or unenforceability shall not affect any other term or
condition contained herein. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement.
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7. Miscellaneous.
7.1 EMPLOYEE understands and agrees that all ATLAS fringe benefit
plans (e.g., Profit Sharing, 401K, health care, etc.) are subject to amendment,
revision, and/or termination from time to time at ATLAS's sole discretion, and
that any such action will be binding upon EMPLOYEE.
7.2 Proration. In the event EMPLOYEE is terminated in the middle
of any calendar month, the Base Salary due EMPLOYEE for such month shall be
prorated on a daily basis.
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 in writing, duly executed by the parties.
7.4 Successors and Assignees. 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 neither party
shall disclose the terms of this Agreement to any third parties, other than
EMPLOYEE's spouse, the parties' attorneys, auditors, or accountants, or as may
be required by law or necessity to enforce this Agreement.
7.6 Full Understanding. EMPLOYEE declares and represents that he 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 his own free will, without any duress, being fully informed and
after due deliberation, voluntarily accepts the terms of this Agreement.
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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 have executed this Agreement the date
and year first above written.
ATLAS AIR, INC.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President -
Strategic Planning
EMPLOYEE:
By: /s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
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