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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
WHEREAS Xxxxxxx X. Xxxxxxx (hereinafter referred to as "Employee") and
Atlas Air, Inc. ("Atlas") wish to enter an Employment Agreement; and
WHEREAS Atlas believes Employee has proven his ability and value to
Atlas, and it is in the best interests of Atlas to retain the services of
Employee, and Employee desires affiliation with 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 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 covenants contained herein,
Employee and Atlas agree to this Employment Agreement as of the 1st day of
April, 2000.
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1. DEFINITIONS
1.1 "Cause", as used herein, means (i) an act or acts of personal
dishonesty taken by the Employee and intended to result in substantial personal
enrichment of the Employee at the expense of Atlas, (ii) repeated violations by
the Employee of the Employee's obligations under this Agreement which are
demonstrably willful and deliberate on the Employee's part and which are not
remedied in a reasonable period of time after receipt of written notice from
Atlas (iii) failure of the Employee to use all reasonable efforts to support the
efforts of the chief executive officer of Atlas to effect acquisitions or joint
ventures designated by the chief executive officer or to serve, if requested by
the chief executive officer, as the Executive Vice President and chief financial
officer of any acquired entity/and or Atlas reporting directly to Xxxxxxx
Xxxxxxx, which failure is not remedied in a reasonable period of time after
receipt by Employee of written notice from Atlas, or (iv) the conviction of the
Employee of a felony.
1.2 The "Employment Period" shall be defined as the period commencing
on the date hereof and extending until March 31, 2001, subject to earlier
termination as set forth in
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Section 4 below and extension as provided in the next succeeding sentence. On
March 31, 2001 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 two months prior to March 31, 2001 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 he shall have been continuously disabled from
performing the duties assigned to him during the Employment Period for a period
of six 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.
1.4 "Confidential or Proprietary" as used herein shall refer to all
information relative to Atlas' plans, structure and practices, including
information relating to its customers, contracts and aircraft, 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 independently developed by the Employee; or
(d) information disclosed to Employee with Atlas' prior written
approval for public dissemination.
1.5 "Good Reason", as used herein, means reduction by Atlas during the
term of this Agreement in base salary or substantial reduction in the Employee's
title or job responsibilities (from the job responsibilities existing on April
1, 2000 which responsibilities were to advise the chief executive officer on
mergers, acquisitions, joint ventures and long term strategic planning).
2. EMPLOYMENT AND OBLIGATIONS OF EMPLOYEE
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 Executive Vice President of Atlas. Employee shall not be
entitled to any additional compensation for serving in any other office for
Atlas or any subsidiary or affiliate of Atlas.
2.2 Obligations of Employee. During the Employment Period, the Employee
agrees, except when prevented by illness
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or Permanent Disability or during a period of vacation, to devote substantially
all of his business time and attention to the good faith performance of such
services.
2.3 Principal Residence of Employee. During the Employment Period,
Employee shall maintain a residence in the Denver, Colorado area. Employee also
agrees, if requested by Xxxxxxx Xxxxxxx, to maintain a residence in the Seattle,
Washington area or the White Plains, New York area.
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 no less than $250,000 per annum, payable in
semi-monthly installments, which amount shall increase to an amount not less
than $325,000 upon (i) the consummation of an acquisition by Atlas of an entity
for an acquisition price of in excess of $500,000,000 or (ii) Employee's
establishing a residence, at the request of the chief executive officer, in the
Seattle, Washington or White Plains, New York area.
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3.2 Incentive Bonus Payments. The Employee will be eligible to receive
an Incentive Bonus payment based on performance for each calendar year during
the Employment Period upon approval of the compensation Committee of the Board
of Directors of Atlas (the "Compensation Committee"). Such Incentive Bonus, if
any, shall be payable no later than December 31 of the succeeding year. In the
event of such approval, payment shall be made in cash or stock of Atlas as
determined by the Compensation Committee, at the time such Incentive Bonus is
approved.
3.3 Benefits. Employee and his dependents shall be entitled to
participate in the Atlas health insurance plan, and Atlas will pay Employee's
monthly premium. 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.
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3.4 Fringe Benefits. Employee also will be entitled to professional and
personal use of a company vehicle initially blue-book valued at up to, or actual
value not to exceed, $40,000.00. Atlas will be responsible for all insurance
premium payments related to the vehicle, and Employee will pay the costs of
fuel.
3.5 Pass Privileges. To the extent that Atlas is able to negotiate pass
privileges with other air carriers or foreign air carriers, it will use its best
efforts to obtain pass privileges for Employee at a pass classification that is
consistent with Employee's job classification. Such privileges shall be
applicable to Employee's family if available.
3.6 Expenses. During the Employment Period, the Employee shall be
entitled to receive promptly reimbursement for all reasonable expenses incurred
by the Employee in accordance with the most favorable expense reimbursement
policies, practices and procedures in effect with respect to key executives of
Atlas and its subsidiaries.
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4. TERMINATION OF EMPLOYMENT PERIOD
The Employment Period shall terminate under the following terms and
conditions:
4.1 At Will Arrangement. Atlas may terminate the Employment Period upon
written notice to the Employee at any time and for any reason. Both 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.
4.2 Rights Following Termination.
(a) If the Employment Period is terminated by Atlas for reasons
other than Cause or if the Employment Period is terminated by the Employee for
Good Reason, the Employee shall be entitled to receive: (i) in a single lump sum
payment within 10 business days after such termination, an amount equal to
$325,000, (ii) an amount equal to $650,000, payable quarterly, in advance, over
the twenty-four month period commencing twelve months following Employee's
termination, (iii) an amount equal to $250,000 payable quarterly, in advance,
over the twelve month period commencing thirty-six months following Employee's
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termination, and (iv) 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 three years from the date of termination; provided, however, that any
such continued coverage shall be offset by comparable coverage provided to
Employee 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 but unpaid as of the date of such death or Permanent Disability shall be
paid to the Employee or his personal representative.
(c) If the Employment Period is terminated by Atlas for Cause or
by the Employee for other than Good Reason, the Employee shall be entitled to
receive his Base Annual Salary which is accrued but unpaid as of the date of
termination.
(d) If Employee's employment with Atlas is terminated as a result
of the failure of Atlas or Employee to renew this Employment Agreement by giving
the notice called for in
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Section 1.2 hereof, Employee shall be deemed to have been terminated by Atlas
without "Cause" for the purpose of (i) the vesting of Employee's outstanding
options and restricted stock awards and (ii) the severance payments and benefit
coverage referred to in Section 4.2 (a).
4.3 Non-Competition Provision. Employee covenants and agrees that he
will not, at any time before five 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. In addition, Employee agrees that, at no time before three 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:
(a) solicit, employ or otherwise interfere with any of Atlas'
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; or
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(b) solicit, accept or otherwise interfere with any of Atlas'
contracts or relationships with any independent contractor,
customer, client or supplier, or any person who is a bona
fide prospective independent contractor, customer, client or
supplier of Atlas;
(c) accept employment with, or give advice to, any air cargo
carrier or an air cargo division or affiliate of any other
airline.
The parties agree and intend that breach of this non-competition clause shall
subject Employee to the full measure of contract and equitable damages including
punitive damages.
5. EXCISE TAX GROSS-UP
5.1 (a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution made, or
benefit provided, by Atlas to or for the benefit of the Employee (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 5.1) (a "Payment") would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended and
then in effect (the "Code") (or any similar excise tax) or any
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interest or penalties are incurred by the Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all Federal, state, local or
other taxes (including any interest or penalties imposed with respect to any
such taxes), including, without limitation, any such income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of paragraph (c) of this Section
5.1, all determinations required to be made under this Section 5.1, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by Xxxxxx Xxxxxxxx (the "Accounting Firm") which shall provide
detailed supporting calculations both to Atlas and the Employee within 20
calendar days of the receipt of written notice from the Employee that there has
been a Payment,
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or such earlier time as is requested by Atlas. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the change in control, the Employee shall have the right by written
notice to Atlas to appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by Atlas and shall be paid by Atlas upon
demand of the Employee as incurred or billed by the Accounting Firm. Any
Gross-Up Payment, as determined pursuant to this Section 5.1, shall be paid by
Atlas to the Employee within five days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Employee, it shall furnish the Employee with an unqualified written
opinion in form and substance satisfactory to the Employee that failure to
report the Excise Tax on the Employee's applicable federal income tax return
would not result in the imposition of a negligence or similar penalty. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by Atlas should
have been made ("Underpayment"),
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consistent with the calculations required to be made hereunder. In the event
that Atlas exhausts its remedies described in paragraph (c) of this Section 5.1
and the Employee thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be paid by Atlas to or for the benefit of the
Employee within five days of the receipt of the Accounting Firm's determination.
All determinations made by the Accounting Firm in connection with any Gross-Up
Payment or Underpayment shall be final and binding upon Atlas and the Employee.
(c) The Employee shall notify Atlas in writing of any claim
asserted in writing by the Internal Revenue Service to the Employee that, if
successful, would require the payment by Atlas of the Gross-Up Payment. Such
notification shall be given as soon as practicable but not later than 60 days
after the Employee is informed in writing of such claim and shall apprise Atlas
of the nature of such claim and the date on which such claim is requested to be
paid. The Employee shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to Atlas (or such
shorter period ending on the date that any payment of taxes
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with respect to such claim is due). If Atlas notifies the Employee in writing
prior to the expiration of such period that it desires to contest such claim,
the Employee shall at Atlas' expense:
(i) give Atlas any information reasonably requested by Atlas
relating to such claim,
(ii) take such action in connection with contesting such
claim as Atlas shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by Atlas,
(iii) cooperate with Atlas in good faith in order effectively
to contest such claim, and
(iv) permit Atlas to participate in any proceedings relating
to such claim;
provided, however, that Atlas shall bear and pay directly as incurred all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee harmless,
on an after-tax basis, for any Excise Tax or any Federal, state, local or other
income or other tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 5.1, Atlas shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative
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appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Employee to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as Atlas shall determine; provided, however, that
if Atlas directs the Employee to pay such claim and xxx for a refund, Atlas
shall advance the amount of such payment to the Employee, on an interest-free
basis and shall indemnify and hold the Employee harmless, on an after-tax basis,
from any Excise Tax or Federal, state, local or other income or other tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Employee with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, Atlas' control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Employee shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
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(d) If, after the receipt by the Employee of an amount advanced by
Atlas pursuant to paragraph (c) of this Section 5.1, the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to Atlas' complying with the requirements of paragraph (ii) of this
Section 5.1) promptly pay to Atlas the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto) upon receipt
thereof. If, after the receipt by the Employee of an amount advanced by Atlas
pursuant to paragraph (c) of this Section 5.1, a determination is made that the
Employee shall not be entitled to any refund with respect to such claim and
Atlas does not notify the Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
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6. CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to principles of conflict
of laws.
7. 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 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 of this Agreement.
Rather, the Agreement shall be construed as if such invalid or illegal or
unenforceable term or condition had never been contained herein. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
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8. MISCELLANEOUS
8.1 No Mitigation. The amounts to be paid 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.
8.2 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.
8.3 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.
8.4 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.
8.5 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
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spouse, their attorneys, auditors, accountants or as required by law or as may
be necessary to enforce this Agreement.
8.6 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.
8.7 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.
EMPLOYEE ATLAS AIR, INC.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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