1
EXHIBIT 10.52
EMPLOYMENT AGREEMENT
WHEREAS, R. Xxxxxxxx Xxxxxxxxx (hereinafter referred to as "Employee")
and Atlas Air, Inc. ("Atlas") wish to enter an Employment Agreement; and
WHEREAS, R. Xxxxxxxx Xxxxxxxxx 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 this 18th day of
November, 1996.
1. DEFINITIONS
1.1 For purposes of this Agreement, "Cause" 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 or (iii) the conviction of the Employee of a felony.
1.2 For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred upon the happening of two of the following:
2
(a) Xxxxxxx Xxxxxxx ceasing to have a direct or indirect
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934) of at
least 51% of the combined voting power of Atlas' then
outstanding voting securities entitled to vote generally in
the election of directors; or
(b) Xxxxxxx Xxxxxxx ceasing to be, on a substantially
full-time basis, the Chief Executive Officer of Atlas; or
(c) 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 13d-3
promulgated under the Securities Exchange Act of 1934, of a
percentage of the combined voting power of Atlas' 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.
1.3 The "Employment Period" shall be defined as the
period commencing on the date hereof and extending until November 16,
2001, unless sooner terminated as set forth in Section 4 below.
1.4 "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.
1.5 "Confidential or Proprietary" as used herein shall
refer to all information relative to Atlas' plans for going public or
its structure and practices except:
2
3
(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
(c) information independently developed by the Employee;
or
(d) information disclosed to Employee with Atlas' prior
written approval for public dissemination.
1.6 For purposes of this Agreement "Good Reason" means
reduction by Atlas during the term of this Agreement in base
salary, or substantial reduction in the Employee's title, job
authorities or responsibilities.
2. EMPLOYMENT AND OBLIGATIONS OF EMPLOYEE
2.1 Employment. During the Employment Period, Atlas
agrees to employ the Employee as Senior Vice President Flight and
Technical Operations of Atlas. Technical Operations will consist of
quality assurance and quality control, line maintenance, heavy
maintenance, engineering, material and reliability. Flight Operations
will consist of line management of all flight crew members, including
supervision, selection, training and standards. 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 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.
3
4
2.3 Principal Residence of Employee. After a reasonable
period of time, Employee shall maintain his principal residence in the
Denver Colorado area. Between the date of this Agreement and not
later than July 1, 1998, Employee's office shall be located at a place
to be designated by Atlas. No later than July 1, 1998, Employee's
office shall be at Atlas' offices in Colorado. During the time
Employee is at a temporary office, Employee shall receive an allowance
of $5,000 to $5,500 per month for an apartment which is to be in the
name of ATLAS. If this amount is insufficient, ATLAS will revisit the
issue with the Employee.
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 $150,000 per
annum, payable in semi-monthly installments.
3.2 Sign-up Bonus. The employee will be entitled to a
"sign up" bonus of $300,000 payable January 1, 1997. However, if the
Employee leaves the Company for reasons other than termination without
cause within the first two years, Employee agrees to reimburse the
Company for this "sign up" bonus within thirty (30) days of the
termination date. This payment is intended to supplement Employee's
base pay for the first two years of employment.
3.3 Incentive Bonus Payments. The Employee will be
eligible to receive an Incentive Bonus payment based on performance
for each calendar year
4
5
during the Employment Period upon approval of the Compensation
Committee of the Board of Directors at Atlas (the "Compensation
Committee"). Employee's annual bonus payment may range from 50
percent to 100 percent of his base salary per Article 3.1 beginning
with the year 1997. Employee shall be guaranteed no less than 50
percent for calendar years 1997 and 1998.
3.4 Stock Options. Employee will be entitled to a stock
option grant of 50,000 Atlas Air, Inc. shares. The shares will vest
starting on the first anniversary of this Agreement and for four years
thereafter in five (5) equal portions at the rate of 10,000 options
per year. The option price shall be $ 38.25 per share which was the
NASDAQ closing price on November 18, 1996. All other terms of this
grant are contained in the Stock Option Grant which in incorporated
herewith and made a part hereof.
3.5 Profit Sharing. Employee will be entitled to
participate in the Company's profit sharing plan beginning in calendar
year 1998.
3.6 401K Plan. Employee will be eligible to participate
in the Company's 401K Plan which provides for a 50% match by the
Company of your contribution up to a maximum employee contribution of
10% of your base salary.
3.7 Stock Purchase Plan. After one year of service,
Employee will be eligible to participate in the Company's stock
purchase plan wherein Employee may purchase company stock at a 15%
discount up to 15% of Employee's base pay.
5
6
3.8 Sale of Home. On the sale of Employee's home in San
Francisco, the Company will reimburse Employee for the real estate
brokerage commission and related sales costs and, in addition
compensate Employee for a loss on the sale of the house against what
you paid for the house to a maximum of $100,000. Also, the Company
will reimburse Employee for the moving costs and closing costs
associated with the purchase of another home.
3.9 Health Care. 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 shall also 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.
3.10 Corporate Automobile. Employee 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. The
decision to lease or purchase is at the discretion of the Company.
Title to the automobile shall be in the Company's name. 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.
6
7
3.11 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.
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 it the Employment Period is terminated by
the Employee for Good Reason, the Employee shall receive, in a single
lump sum payment within 10 business days after such termination, an
amount equal to twice Base Annual Salary.
(b) Upon the death or Permanent Disability of the
Employee, the Employment Period shall terminate and the Employee's
Base Annual Salary
7
8
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
by unpaid as of the date of termination.
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
five 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, deal with 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, to the
extent that Employee learns of or is introduces to any such
person by virtue of his performance as an employee of Atlas;
or
(b) solicit, accept, deal with or otherwise interfere
with any of Atlas' 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, at any time, to the
extent
8
9
that Employee learns of or is introduced to any such person by
virtue of his performance as an employee of Atlas.
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 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
9
10
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, 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 be written notice to Atlas to appoint
another nationally recognized accounting fir 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
10
11
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"), 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
11
12
date that any payment of taxes 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 requesting
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 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
12
13
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.
(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
13
14
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, the 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.
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. Employee shall submit to
jurisdiction in the state of Colorado (state or federal as is
applicable).
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 of 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 had never been 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.
14
15
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 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
15
16
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/ R. XXXXXXXX XXXXXXXXX /s/ XXXXXX XXXXX
_____________________________ _____________________________
R. Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxx
16
