Exhbiti 10.14
SETTLEMENT AGREEMENT
PREAMBLE
This Settlement Agreement is made and entered into as of the 18th day of
October, 2004 (the "Agreement Date") by and among: Xxxxx X. Xxxx, an adult
individual ("Wing"); ATA Holdings Corp., an Indiana corporation ("ATAH"); J.
Xxxxxx Xxxxxxxxx, an adult individual ("Mikelsons"); and Xxxxxxx X. Xxxxx, an
adult individual ("Xxxxx").
RECITALS
WHEREAS:
(A) Wing was formerly employed by ATAH as its Executive Vice President
and Chief Financial Officer and was formerly a member of ATAH's board of
directors.
(B) Wing ceased to be an ATAH employee on or about June 24, 2004, and
also subsequently ceased to be member of ATAH's board of directors.
(C) Mikelsons is ATAH's Chief Executive Officer and President, the
Chairman of ATAH's board of directors, and the majority owner of ATAH.
(D) Xxxxx is currently ATAH's Executive Vice President and Chief
Financial Officer and a member of ATAH's board of directors.
(E) A dispute has arisen between Wing, on the one hand, and ATAH,
Mikelsons and Xxxxx, on the other hand, regarding the circumstances under
which Wing ceased to be an ATAH employee and a member of ATAH's board of
directors. Specifically, Wing has filed a complaint with the United States
Department of Labor ("DOL") against ATAH's wholly owned subsidiary, ATA
Airlines, Inc. ("ATA Airlines"), Mikelsons and Xxxxx, currently pending
before the DOL's Occupational Safety and Health Administration as Case No.
5-2210-04-017 (the "DOL Proceeding"), in which Wing contends that he was
terminated in retaliation for exercising his rights and obligations under
the Xxxxxxxx-Xxxxx Act (the "SOX Claim"). ATAH (for itself and for its
subsidiary, ATA Airlines), Mikelsons and Xxxxx dispute Wing's contentions
in the DOL Proceeding and contend that Wing voluntarily resigned from his
employment with ATAH.
(F) ATAH desires that Wing return to employment with ATAH as its
Executive Vice President and Chief Financial Officer. To that end, on
October 1, 2004, ATAH extended to Wing an unconditional offer of
reinstatement to his prior position as ATAH's Executive Vice President and
Chief Financial Officer.
(G) Wing desires to return to employment with ATAH as its Executive
Vice President and Chief Financial Officer, but does not desire to become a
member of ATAH's board of directors.
(H) ATAH and Wing have entered into a written Employment Agreement
dated October 18, 2004 (the "Employment Agreement"), with the approval by
ATAH's board of directors.
(I) In connection with, and in consideration of, Wing's resumption of
employment with ATAH, the parties desire to settle with prejudice and
forever resolve all claims and controversies of every kind and nature
existing as of the Agreement Date between Wing, on the one hand, and ATAH
(including its subsidiaries and other affiliates), Mikelsons and Xxxxx, on
the other hand, including all claims and contentions asserted in the DOL
Proceeding.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and releases set forth below, the parties agree as follows:
Section 1. Nullification Event. In the event ATAH or any ATAH
subsidiary or affiliate becomes subject to a voluntary or involuntary
petition for bankruptcy under Title 11 of the United States Code (a
"Bankruptcy Proceeding") with the result that this Settlement Agreement or
the Employment Agreement is rejected, rescinded or otherwise disapproved in
connection with the Bankruptcy Proceeding (which will constitute a
"Nullification Event"), then this Settlement Agreement will be null and
void and will have no force or effect whatsoever. The effect of a
Nullification Event is to void all provisions of this Settlement Agreement
except this Section 1. Without limitation, but by way of emphasis, a
Nullification Event voids all releases set forth in Sections 4 and 5 of
this Settlement Agreement. If a Nullification Event occurs, the parties
agree to toll and waive any applicable statutes of limitations or other
procedural barrier to the refiling of Wing's complaint with the DOL for a
period of 30 days after such Nullification Event occurs. If a Nullification
Event occurs in the context of a Bankruptcy Proceeding with the effect that
the release set forth in Section 4 of this Settlement Agreement becomes
unenforceable or otherwise ineffective, and with the effect that Wing is
restored to his SOX Claim against any ATAH-Related Party (as hereinafter
defined in Section 4), including ATAH, ATA Airlines, Mikelsons or Xxxxx,
Wing agrees that the amount of the signup bonus paid to Wing pursuant to
Section 1 of the Employment Agreement, if retained by Wing, will be applied
as a credit against the amount of any liability that might be imposed in
Wing's favor against any ATAH-Related Party (as hereinafter defined in
Section 4), including ATAH, ATA Airlines, Mikelsons or Xxxxx.
Section 2. Withdrawal of Wing's Complaint in DOL Proceeding. As
promptly as practicable after execution of this Settlement Agreement, Wing,
by and through his attorney of record in the DOL Proceeding, will file a
written withdrawal of his complaint in the DOL Proceeding pursuant to 29
C.F.R. ss. 1980.111. In connection with the withdrawal of Wing's complaint
in the DOL Proceeding, Wing, by and through his attorney of record in the
DOL Proceeding, will provide a copy of this Settlement Agreement to the
appropriate DOL personnel and seek approval of the settlement pursuant to
29 C.F.R. ss. 1980.111. If requested by DOL personnel, or if otherwise
necessary to obtain DOL approval of this settlement, Wing will also
promptly provide a copy of the Employment Agreement to the appropriate DOL
personnel. The parties to this Settlement Agreement, by their respective
attorneys of record in the DOL Proceeding, will exercise their best efforts
in good faith to obtain DOL approval of this settlement as promptly as
possible. Wing agrees that, in the event DOL does not issue a final
decision approving this settlement within 180 days from the date Wing filed
his complaint in the DOL Proceeding, Wing, by and through his attorney of
record in the DOL Proceeding, will: (i) file pursuant to 29 C.F.R. ss.
1980.114(b) a notice of intention to bring an action for de novo review in
the appropriate district court of the United States pursuant to 29 C.F.R.
ss. 1980.114(a) and 18 U.S.C. ss. 1514A(b)(1)(B) (a "District Court
Action"); (ii) file the District Court Action as soon thereafter as
permitted by law; and (iii) as promptly as possible after filing the
District Court Action, voluntarily dismiss the District Court Action with
prejudice. Notwithstanding the foregoing, if for any reason liability is
imposed under the Xxxxxxxx-Xxxxx Act in favor of Wing against any
ATAH-Related Party (as hereinafter defined in Section 4), including ATAH,
ATA Airlines, Mikelsons or Xxxxx, Wing agrees that the amount of the signup
bonus paid to Wing pursuant to Section 1 of the Employment Agreement will
be applied as a credit against the amount of any such liability.
Section 3. DOL Approval. Except for the obligations, responsibilities
and duties set forth in Section 1 of this Settlement Agreement (which are
absolute and unconditional) and the obligations, responsibilities and
duties set forth in Section 2 of this Settlement Agreement (which are
subject only to the conditions set forth in the foregoing Section 1), all
provisions of this Settlement Agreement are subject to, and conditioned
upon, approval by appropriate DOL personnel pursuant to 29 C.F.R. ss.
1980.111. The parties to this Settlement Agreement mutually acknowledge and
agree that, with the exception of the foregoing Sections 1 and 2, this
Settlement Agreement will become effective only upon DOL approval pursuant
to 29 C.F.R. ss. 1980.111.
Section 4. Release by Wing. Wing hereby RELEASES AND FOREVER
DISCHARGES the ATAH-Related Parties (as hereinafter defined), and each of
them, of and from all claims, demands, damages, liabilities, costs,
expenses, causes of action and rights of action of every kind and nature,
whether accrued or unaccrued, whether suspected or unsuspected, and whether
known or unknown, that Wing now has, may have or may hereafter acquire
against the ATAH-Related Parties, or any of them, arising out of or related
to, in whole or in part, any actual or alleged act, omission, event,
transaction, fact or circumstance of any kind or nature that existed or
occurred at or prior to the Agreement Date, including (without limitation)
all claims arising under the common law or any other federal, state or
local statute, regulation or ordinance, including (without limitation)
Title VIII, Section 806 of the Xxxxxxxx-Xxxxx Act of 2002 (18 U.S.C. ss.
1514A). As used in this Settlement Agreement, the term "ATAH-Related
Parties" means ATAH and each of its subsidiaries and affiliates, including
(without limitation) ATA Airlines, all of their respective predecessors,
successors and assigns, and all of the present and former partners,
officers, directors, shareholders, employees, attorneys and other agents
and representatives of ATAH, its subsidiaries and affiliates, and their
respective predecessors, successors and assigns, including (without
limitation) Mikelsons and Xxxxx, in both their representative and
individual capacities.
Section 5. Release by ATAH-Related Parties. The ATAH-Related Parties,
including (without limitation) ATAH, ATA Airlines, Mikelsons and Xxxxx,
hereby RELEASE AND FOREVER DISCHARGE Wing of and from all claims, demands,
damages, liabilities, costs, expenses, causes of action and rights of
action of every kind and nature, whether accrued or unaccrued, whether
suspected or unsuspected, and whether known or unknown, that the
ATAH-Related Parties, or any of them, now have, may have or may hereafter
acquire against Wing arising out of or related to, in whole or in part, any
actual or alleged act, omission, event, transaction, fact or circumstance
of any kind or nature that existed or occurred at or prior to the Agreement
Date, including (without limitation) claims arising under the common law
and claims alleging violation of any federal, state or local statute,
regulation or ordinance.
Section 6. No Admission of Violation or Liability. The parties to this
Settlement Agreement mutually acknowledge and agree that this Settlement
Agreement does not constitute an admission by ATAH, ATA Airlines,
Mikelsons, Xxxxx or any of the other ATAH-Related Parties that he, she or
it (as the case may be) has violated any federal, state or local statute,
regulation or ordinance or committed any other wrongful or unlawful act or
omission. The parties to this Settlement Agreement likewise mutually
acknowledge and agree that this Settlement Agreement does not constitute an
admission by Wing that he has violated any federal, state or local statute,
regulation or ordinance or committed any other wrongful or unlawful act or
omission. Rather, it is expressly understood and mutually agreed by all
parties to this Settlement Agreement that this Settlement Agreement is
being entered into solely for the purpose of settling and forever resolving
disputed claims.
Section 7. Enforcement. In the event of a material breach of this
Settlement Agreement, the non-breaching party will be entitled to all
available remedies at law and equity, including recovery of damages, as
well as reasonable attorneys' fees and expenses in connection with any
action or proceeding to enforce or otherwise seek redress for any material
breach of this Settlement Agreement.
Section 8. Entire Agreement. The parties to this Settlement Agreement
mutually agree and acknowledge that this Settlement Agreement, the
Employment Agreement and the letter agreement dated October 8, 2004, a copy
of which is attached hereto as Exhibit A (the "Non-Disclosure Agreement"),
set forth the entire agreement among the parties with respect to the
subject matter of this Settlement Agreement. Except for the Employment
Agreement and the Non-Disclosure Agreement, which survive execution of this
Settlement Agreement, this Settlement Agreement fully supersedes and
extinguishes all prior negotiations, representations and agreements,
whether written or oral, between or among the parties with respect to the
subject matter of this Settlement Agreement. Wing acknowledges that, prior
to executing this Settlement Agreement, Wing and his attorney were advised
on a confidential basis, pursuant to the Non-Disclosure Agreement, of
material non-public information concerning ATAH, ATA Airlines and their
businesses, including non-public information concerning the competitive
situation and strategic plans of ATAH, ATA Airlines and their affiliates.
Wing represents, acknowledges and agrees, however, that he does not rely
on, and has not relied on, any representation or statement by any of the
ATAH-Related Parties (including ATAH, Mikelsons, Xxxxx) or their respective
attorneys as a basis or inducement for entering into this Settlement
Agreement.
Section 9. Modification or Amendment. This Settlement Agreement may
not be modified or amended orally, but may be modified or amended only in
writing signed by or on behalf of all parties to this Settlement Agreement.
Section 10. Binding Effect. The terms and conditions of this
Settlement Agreement extend to, are binding upon, and inure to the benefit
of Wing, Mikelsons, Viets, ATAH and the ATAH-Related Parties, and each of
their respective heirs, administrators, representatives, executors,
successor and assigns.
Section 11. Governing Law. The parties agree that this Settlement
Agreement and the Non-Disclosure Agreement are governed in all respects
(including matters of enforceability, construction and interpretation) by
the internal laws of the State of Indiana, without regard to conflict of
laws principles, except to the extent that state law is preempted by
federal law, in which case the laws of the United States of America apply
to the extent they have preemptive effect.
Section 12. Counterparts. This Settlement Agreement may be executed in
counterparts, each of which will be deemed an original and all of which
together constitute a single, complete instrument.
Section 13. Headings. The parties mutually agree and acknowledge that
the section headings in this Settlement Agreement are for convenience only
and do not constitute a substantive part of this Settlement Agreement.
Section headings shall not be considered when interpreting or construing
any provision of this Settlement Agreement.
IN WITNESS WHEREOF the parties have executed this Settlement Agreement on
the date(s) set forth below.
Dated: October 18, 2004 /s/Xxxxx X. Xxxx
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Xxxxx X. Xxxx
ATA HOLDINGS CORP.,
an Indiana corporation
Dated: October __, 2004 By:/s/Xxxxx X. Xxxx
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Printed: Xxxxx X. Xxxx
Title: Vice President &
General Counsel
Dated: October __, 2004 /s/J. Xxxxxx Xxxxxxxxx
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J. Xxxxxx Xxxxxxxxx
Dated: October __, 2004 /s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
