This Employment
Agreement (hereinafter referred to as the “ Agreement
”) is made and entered into as of the 27th day of March, 2008
by and between Ronald A. Lane (hereinafter referred to as the
“ Employee ”) and Atlas Air, Inc., a Delaware
corporation (hereinafter referred to as “ Atlas
” or the “ Company ”).
WHEREAS,
the Employee had been previously employed by the Company as Senior
Vice President and Special Advisor pursuant to that Amended
Restated Employment Agreement dated as of March 21, 2007, (the
“ Original Employment Agreement ”);
WHEREAS,
the Company wishes to now engage Employee pursuant to the terms and
conditions hereof; and
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, covenant and agree as
follows:
1.1
“Employment Period ” shall mean the period
commencing as of the date hereof and extending until
December 31, 2009, subject to earlier termination as set forth
in Section 4.1 below.
1.2 “
Confidential or Proprietary Information ” 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 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 the Employee with Atlas’ prior approval for
public dissemination.
2.
OBLIGATIONS OF THE EMPLOYEE
Atlas and the
Employee agree to the following rights, obligations and
duties:
2.1 Obligations
of the Employee . During the Employment Period, Atlas agrees to
retain the Employee as a Special Advisor. The scope of the
Employee’s responsibilities shall be determined by the Board
of Directors, the Chief Executive Officer, the Chief Operating
Officer,
the Chief
Financial Officer and such other officers of Atlas as the Chief
Executive Officer shall deem appropriate. The Employee shall,
except when prevented by illness or permanent disability or during
a period of vacation, devote sufficient Employee business time to
ensure accomplishment of the projects similar to those projects set
forth in Exhibit A which are assigned to him and attention to
the good faith performance of the other duties contemplated by this
Agreement. The Employee shall be able to work a minimum of four
(4) days per month, and shall report to the Company’s
Chief Financial Officer.
2.2 Principal
Residence of the Employee . The Employee shall maintain his
principal residence in the Long Beach, California area unless
otherwise agreed.
2.3 New
Position Provisions . Upon execution of this Agreement, the
parties’ respective rights and obligations under the Original
Employment Agreement shall be superseded by this Agreement. The
Employee hereby affirms his resignation of his prior position as
Senior Vice President of the Company and its affiliates as of
December 31, 2007.
During the
Employment Period, Atlas will pay the Employee as
follows:
3.1
Compensation . Employee acknowledges receipt of $74,819.50
from the Company prior to the execution of this Agreement, which
amount, together with an additional payment on March 31, 2008
of $14,963.90, shall be applied against amounts due for the months
of January, February and March, 2008. Starting April 15, 2008,
Atlas will pay Employee a monthly minimum commitment of four days
per month in two equal monthly installments on the 15
th and last day of each month. Atlas will pay
Employee at the rate of $5,000 per diem for a minimum or four days
per month and additional days (or fractions thereof) worked above
the four day minimum. Notwithstanding the minimum commitment of
four days per month, the parties agree that the target number of
days the Company intends to employ Employee is 100 days
annually. Days in excess of the four days per month are not
guaranteed. Payments for days worked over and above the four day
minimum will be reconciled at month end and paid in the next
mid-month payroll. The Company will not be obligated to pay
Employee an annual incentive bonus, whether in accordance with the
Company’s annual incentive plan or otherwise.
3.2
Benefits . During the Employment Period, the Employee and
the Employee’s dependents shall be entitled to participate in
the Atlas health insurance plans (major medical, dental and
vision), and Atlas will contribute to the Employee’s monthly
premium as provided by such plan. 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. The Employee also
shall to the same extent and at a level commensurate with other
employees of Atlas, be entitled to participate in any other benefit
plans or arrangements of Atlas.
3.3 Restricted
Shares and Options . During the Employment Period, all Company
restricted shares and stock options, if any, will continue to vest
in accordance with their terms.
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4.
TERMINATION OF THE EMPLOYMENT PERIOD
4.1
Termination . Employment hereunder shall be through the
Employment Period; provided , however, that the Company may
immediately terminate the Employment Period with Cause (as defined
below). “Cause” shall be defined as (i) a breach
by the Employee of a material term of this Agreement; (ii) any
act of misconduct or dishonesty by the Employee; or, (ii) the
Employee’s failure to perform work as assigned to him from
time to time by Atlas. Provisions of this Agreement shall survive
any termination if so provided herein or if necessary or desirable
to accomplish the purposes of other surviving provisions, including
without limitation the obligations of the Company under
Section 4.2 and the obligations of the Employee under
Section 4.3.
4.2 Rights
Following Termination . (a) Upon Employee’s
execution and delivery of this Agreement and the Release included
in the Original Employment Agreement (“EA Release”)
(Which EA Release shall not release the Company of its payment
obligation to the Company as provided in the first sentence of
Section 3.1), Employee shall receive severance of $426,080
paid in a lump sum within ten (10) days (provided that the
Employee does not revoke the EA Release).
(b) Upon
(x) termination of the Employment Period by the Company
without Cause, (y) expiration of the Employment Period or
(z) termination by the Employee for any reason, including
death or disability, subject to the Employee’s execution of a
separation agreement and general release (a true and correct copy
of which is attached hereto as Exhibit B ) (the “
Release ”), the Employee shall be entitled to:
(i) receive the Employee’s base salary and accrued
benefits through December 31, 2009, except in the case of a
termination by the Employee for any reason, including death or
disability, the Employee shall be entitled only to base salary and
accrued benefits through the date the Employee’s employment
terminates; (ii) subject to the Employee’s fulfillment
of all of his obligations under Section 4.3, continued
coverage and rights and benefits available under the Atlas health
insurance plans as provided in Section 3.2, above, for a
period of twenty-four (24) months immediately following the
date of termination subject to the Employee paying the same portion
for the premiums for such coverage as he paid during the Employment
Period; provided , however , that any such continued
coverage shall cease in the event the Employee obtains comparable
coverage in connection with subsequent consulting or employment
arrangements, 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;
(iii) subject to the Employee’s fulfillment of all of
his obligations under Section 4.3, receive any retired
employee benefits available to retired Company employees for which
he is eligible pursuant to the terms of any applicable policies or
plan documents, as amended from time to time; and (iv) subject
to the Employee’s fulfillment of all of his obligations under
Section 4.3 hereof, supplemental severance compensation in the
amount of $100,000.00, paid in a lump sum within ten (10) days
of the one-year anniversary of the Employee’s separation from
employment hereunder. Upon termination of the Employment Period for
any other reason (including, without limitation, by the Company
with Cause), the Employee shall be entitled only to base salary and
accrued benefits through the date the Employee’s employment
terminates.
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4.3 Restrictive
Covenants .
(a) The
Employee covenants and agrees that the Employee 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 Atlas or any of its subsidiaries or affiliates
(collectively the “Atlas Companies” and each, an
“ Atlas Company ”) which is not in the public
domain.
(b)
(i) Acknowledging his duty of loyalty to the Atlas Companies,
the Employee agrees that, while he is employed by the Company, he
will not, directly or indirectly, whether as owner, partner,
investor, consultant, agent, employee, co-venturer or otherwise,
compete with any of the Atlas Companies anywhere in the world or
undertake any planning for any business competitive with any of the
Atlas Companies with any of the following companies. Specifically,
the Employee agrees that, during his employment with the Company,
he will not provide advice, services or other assistance of any
kind, whether with or without compensation, to the following
companies and their subsidiaries and affiliates: Federal Express,
United Parcel Service, Southern Air Holdings, Inc., World Airways,
Inc
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