AMENDMENT TO EMPLOYMENT
AGREEMENT
This amendment
(this “Amendment”) is entered into as of this 31st day
of December, 2008, by and between Atlas Air, Inc., a Delaware
corporation (“Atlas”), and John W. Dietrich (the
“Employee”).
WHEREAS, the
parties hereto previously entered into an amended and restated
employment agreement dated as of September 8, 2006 (the
“Employment Agreement”); and
WHEREAS, in order
to, among other things, comply with Section 409A of the
Internal Revenue Code of 1986, as amended
(“Section 409A”), the parties hereto wish to amend
the Employment Agreement in accordance with the terms set forth
herein;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. A new
sentence is added to the end of Section 1.3 of the Employment
Agreement to read as follows:
“Notwithstanding the foregoing, in the
event that, as a result of an absence because of mental or physical
incapacity or other impairment, the Employee incurs an earlier
“separation from service” within the meaning of
Section 409A, the Employee shall on such date automatically be
terminated from employment with Atlas, and the Employment Period
will terminate, as a result of Permanent
Disability.”
2. Section 1.4
of the Employment Agreement is amended in its entirety to read as
follows:
“1.4
“Change of Control” means the acquisition by any
person, entity, or “group” (within the meaning of Final
Treasury Regulation § 1.409A-3(i)(5)(v)(B), excluding for this
purpose any employee benefit plan of Atlas or its affiliates) of
beneficial ownership (applying the attribution rules set forth in
Final Treasury Regulation § 1.409A-3(i)(5)(iii)) of greater
than fifty percent (50%) of the total voting power of the
outstanding voting securities of either Atlas or of Atlas Air
Worldwide Holdings, Inc. (“Holdings”) entitled to vote
generally in the election of directors.”
3. The first
sentence of Section 3.1 of the Employment Agreement is amended
in its entirety to read as follows:
“Atlas will
pay Employee a base annual salary (the “Base Annual
Salary”) of USD $467,500.00 per annum, payable in
semi-monthly installments.”
4. The
penultimate sentence of Section 3.2 of the Employment
Agreement is amended in its entirety to read as follows:
“Any
bonus paid under the Annual Incentive Plan will be paid no later
than two weeks following the completion of the year-end audit for
the applicable year, but in no event later than March 15 of
the year following the applicable year.”
5. The second
sentence of Section 3.4 of the Employment Agreement is amended
in its entirety to read as follows:
“Atlas
reserves the right to discontinue participation in any health
insurance plan at any time, provided that Atlas will reimburse the
Employee for his cost of obtaining comparable health care benefits
for him and his dependents during the Employment Period, which
reimbursement will be made by Atlas no later than March 15 of
the year following the year in which the expense being reimbursed
is incurred, provided that the Employee timely submits any such
reimbursement request to Atlas in accordance with procedures
established by Atlas from time to time.”
6. Section 4.2(a)
of the Employment Agreement is amended in its entirety to read as
follows:
“(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, and subject to the Employee’s execution of a
general release upon terms and conditions consistent with this
Agreement and acceptable to Atlas and Employee, which release must
be presented to Employee upon or promptly after termination of the
Employment Period, fully executed and become effective before the
six-month anniversary of the date on which the Employment Period
terminates, then the Employee shall be entitled to
receive:
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(i)
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an
amount equal to eighteen (18) months of the Employee’s
then-current monthly Base Salary, payable in a lump-sum on the
first day of the seventh month following the date on
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which the Employment Period
terminates (the “Lump-Sum Payment Date”);
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(ii)
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in
accordance with Atlas’ Relocation Policy for Executive
Homeowners/Renters in effect as of January 1, 2009 (or any
subsequent Atlas Relocation Policy that offers essentially the same
(or better) benefits as those provided for in the Relocation Policy
in effect as of January 1, 2009), (I) reimbursement for
reasonable moving expenses actually incurred by the Employee in
relocating back to the Chicago, Illinois area, such reimbursement
to be made by Atlas no later than the end of the third year
following the year in which the Employment Period terminates, and
(II) tax gross-up payments that reimburse the Employee for any
income taxes that the Employee incurs as a result of the
reimbursements made by Atlas under the preceding clause (I), with
any such gross-up payment to be made by Atlas no later than the end
of the year following the year in which the Employee remits the
income taxes that are being grossed up by the applicable payment;
and
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(iii)
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continued coverage for a period of
twelve months immediately following the date on which the
Employment Period terminates under the health (medical, dental, and
vision) and life insurance programs of Atlas (or, if continued
coverage under such Atlas programs is not available or
practica
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