EXHIBIT 10.163
EMPLOYMENT AGREEMENT
This Employment Agreement(hereinafter referred to as the
"Agreement") is made and entered into as of the 1st day of November, 2001 by and
between Xxxxxxx X. Xxxxx, an individual (hereinafter referred to as "Employee"),
and Atlas Air, Inc., a Delaware corporation (hereinafter referred to as
"Atlas").
WHEREAS, Atlas believes that Employee has proven his ability and
value to Atlas and it is in the best interests of Atlas to continue to retain
the services of Employee, and Employee desires to continue an affiliation with
Atlas, on the terms and subject to the conditions set forth in this Agreement;
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 mutual covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound hereby, covenant and agree as follows:
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1. DEFINITIONS
1.1 "Cause", as used herein, means (i) any act or acts of
material dishonesty taken by the Employee, (ii) the failure of Employee to
comply with any of Employee's material obligations within ten (10) days of
written notice from Atlas, (iii) any material violations by Employee 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 violations, 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 November 1, 2004, subject to
earlier termination as set forth in Section 4 below and extension as provided in
the next succeeding sentence. On November 1, 2004 and on each anniversary date
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
November 1, 2004 or such anniversary, as the case may be, that the Employment
Period is not 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 (6) consecutive calendar
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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 Atlas, Atlas
Worldwide Holdings, Inc. ("Holdings") 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
(c) information disclosed to Employee with Atlas' prior written
approval for public dissemination.
1.5 "Good Reason", as used herein, means (i) a reduction
during the term of this Agreement in Employee's Base Annual Salary, (ii) a
substantial reduction in the Employee's title or job responsibilities from the
Employee's title or job responsibilities on the date 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 on the date of this Agreement and (iv) a requirement by Atlas,
within twelve (12) months following a Change of Control, that Employee relocate
his principal residence from the Purchase, New York 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 Sec-
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tion 13(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 (50%) of the
combined voting power of the outstanding voting securities of Atlas or Holdings
entitled to vote generally in the election of directors.
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 Senior Vice President - Human Resources of Atlas and
Employee agrees to serve as Senior Vice President - Human Resources of Atlas.
The scope of Employee's responsibilities shall be as determined by the Board of
Directors of Atlas, consistent with the duties of the senior human resources
officer of Atlas. If the Board of Directors of Holdings appoints a Senior Vice
President - Human Resources of Holdings, the Board of Directors shall appoint
Employee to such position and Employee agrees that he shall serve as Senior Vice
President - Human Resources of Holdings, without any additional compensation.
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2.2 Obligations of Employee. During the Employment Period,
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 the duties contemplated
hereunder.
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 of $205,000 per annum (the "Base Annual Salary"), payable in
semi-monthly installments.
3.2 Incentive Bonus Payments. 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 Holdings (the "Compensation Committee"). Such incentive
bonus, if any, is targeted to be an amount not to exceed 75% of Employee's Base
Annual Salary and 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 restricted
stock of Holdings, as determined by the Compensation Committee. Employee agrees
to abide by the stock ownership guidelines as approved by Holdings' Board of
Directors.
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3.3 Mortgage Buy Down Program. Employee shall be eligible to
continue to participate in the Colorado mortgage buy down program administered
by one of Atlas' two preferred lending institutions.
3.4 Benefits. Employee and his dependents shall be entitled
to continue 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, including the Colorado transferee mortgage buy-down program.
3.5 Fringe Benefits. Employee also will be entitled to
professional and personal use of a company vehicle initially blue-book valued at
up to, or purchase price not to exceed, $40,000.00. Atlas will be responsible
for all expenses related to the vehicle, including gross up to cover associated
taxes, except for the costs of fuel and maintenance. In the event Employee's
employment terminates, with or without Cause, Employee shall, within three (3)
days of the date of termination, return the company vehicle to Atlas together
with all keys, owners manual(s) and maintenance records.
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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. 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 (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, Employee shall be entitled to receive an amount equal to the Base Annual
Salary, payable on a lump sum basis on the date which is the next regular
payroll date following the date of Employee's termination. In addition, if
Employee's employment terminates for the reasons and subject to the condition
contained in the preceding sentence, the Company shall continue to pay
Employee's monthly health insurance premium payments for the 12 month period
following the date of Employee's termination on the same basis as the
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Company would have made such payments had the Employee continued to be an
employee of the Company during such 12 month period.
(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 (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 his
Base Annual Salary which is accrued but unpaid as of the date of termination.
4.3 Non-Competition Provision. (a) Employee covenants and
agrees that he 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 Holdings, Atlas or any of their
subsidiaries or affiliates (collectively, the "Atlas Companies" and each, an
"Atlas Company") which is not in the public domain.
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(b) 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:
(i) solicit, employ or otherwise interfere with any of the
Atlas Companies' contracts or relationships with any
client, employee, 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, accept or otherwise interfere with any of the
Atlas Companies' 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 an Atlas
Company.
(c) In addition, Employee agrees that, at no time before two
years after Employee's termination of employment with Atlas, will Employee
directly or indirectly, for any reason, whether for Employee's own account or
for the account of any other person, firm, corporation or other organization,
accept employment with, or give advice to, (i) any air cargo carrier, (ii) any
air cargo division or affiliate of any other airline, or (iii) any company that
leases cargo aircraft on an ACMI, wet lease, charter or dry lease basis.
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.
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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 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
divided equally between the Parties.
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 agree-
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ment 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") 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.
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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 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 proceeding and related legal 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 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 any other covenant or provision of this
Agreement. In the
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event a court of competent jurisdiction of 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 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.
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.
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7.5 Confidentiality of Terms. Atlas and Employee each 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 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 and represents that 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.
EMPLOYEE ATLAS AIR, INC.
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