EX-10.19.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (hereinafter referred
to as the "Agreement") is made and entered into as of the 1st day of April, 2005
by and between John W. Dietrich (hereinafter referred to as "Employee") and
Atlas Air, Inc., a Delaware corporation (hereinafter referred to as "Atlas").
This Agreement amends and restates in its entirety that certain Employment
Agreement between the parties dated as of March 19, 2003, as amended to date.
WHEREAS, Atlas believes that it is in the best interests of Atlas to
retain the services of the Employee and the Employee desires an affiliation with
Atlas, on the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, Employee warrants that Employee 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 receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. DEFINITIONS
1.1 For purposes of this Agreement, "CAUSE" as used herein means
(i) any act or acts of material dishonesty taken by the Employee, (ii) the
failure of the Employee to comply with any of the Employee's material
obligations within ten (10) days of written notice from
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Atlas, (iii) any material violations by Employee of Atlas corporate policies as
set forth in the Employee Compliance Manual, Employee Handbook or related
corporate policies; provided that, if such violation is subject to cure,
Employee shal1 have ten (10) days within which to cure such- violation, 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 this Agreement is terminated by either
party in accordance with Section 4.
1.3 "PERMANENT DISABILITY" as used herein shall be deemed to have
been sustained by Employee if Employee shall have been continuously disabled
from performing the duties assigned to Employee during the Employment Period for
a period of six (6) consecutive calendar 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.
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1.5 "GOOD REASON" as used herein means either of (i) a reduction
during the term of this Agreement in the Employee's Base Annual Salary or
eligibility to receive a bonus, and (ii) a reduction in the Employee's then
current title or job responsibilities.
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, General Counsel and Chief Human
Resources Officer of Atlas and of Holdings. The scope of Employee's
responsibilities shall be as determined by the Boards of Directors of Atlas
and/or Holdings, and/or appropriate officers of Atlas and/or Holdings. If the
Board of Directors of Holdings requests Employee to serve in any capacity for
Holdings, Employee agrees that Employee shall serve in such capacity, without
any additional compensation. In addition, Employee shall not be entitled to any
additional compensation for serving in any other office for Atlas, or Holdings
or any subsidiary or affiliate of Atlas or Holdings.
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 Employee's business
time and attention to the good faith performance of the duties contemplated.
2.3 PRINCIPAL RESIDENCE OF EMPLOYEE. During the Employment Period,
Employee shall maintain Employee's principal residence in the Purchase, New York
area.
3. COMPENSATION
During the Employment Period, Atlas will pay Employee as follows:
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3.1 BASE ANNUAL SALARY. Atlas will pay Employee a base annual
salary (the "Base Annual Salary") of USD $292,000 per annum, payable in
semi-monthly installments. The parties acknowledge that $12,000 of the Base
Annual Salary is in partial consideration for the elimination of the automobile
allowance previously provided to Employee. The Company shall review Base Annual
Salary not less frequently than annually for increases, including among other
considerations, Employee's performance, it being understood that any increases
shall be at the discretion of the Company.
3.2 INCENTIVE BONUS PAYMENTS. Employee will be eligible to
participate in Holdings' Annual Incentive Plan. The level of the bonus available
to Employee will be set forth in the Annual Incentive Plan and will be awarded
in consideration of individual and corporate performance based on performance
goals and objectives determined by the Holdings Compensation Committee. A fuller
description of how corporate and individual performance operate in tandem to
determine the calculation of bonuses will be described in the Annual Incentive
Plan. The Annual Incentive Plan document will be developed by the Holdings
Compensation Committee and is subject to amendment from time to time with
changes as adopted by the Compensation Committee or full Board of Directors of
Holdings. As further described in the Annual Incentive Plan, corporate and
individual performance in combination may permit the Employee to earn a target
bonus equal to 50% of Base Annual Salary. Lesser corporate or individual
performance may cause bonus payments to be in an amount less than 50% of Base
Annual Salary or result in no bonus being payable. Greater corporate and
individual performances may result in the bonus being more than 50% of Base
Annual Salary. When the bonus payment reaches more than 50% of Base Annual
Salary, Atlas reserves the right to pay some or all of the portion of the bonus
that is above 50% of Base
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Annual Salary in Holdings unrestricted company stock payable under the Atlas Air
Worldwide Holdings, Inc. 2004 Long Term Incentive and Share Award Plan. 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.
3.3 BENEFITS. Employee and Employee's dependents shall be entitled
to participate in the Atlas health insurance plan, provided that the Employee
and Atlas will each contribute to Employee's monthly premium as provided by such
plan. Atlas reserves the right to discontinue participation in any health
insurance plan at any time, provided that Atlas will reimburse Employee for
Employee's cost of obtaining comparable health care benefits for Employee and
his dependents. 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.
3.4 FRINGE BENEFITS. (a) Employee will receive a one-time cash
payment of $19,000 in lieu of the tax gross-up related to the previously
provided automobile allowance.
(b) In consideration of the reduction of the severance payment
described in Section 4.2(a)(i) from the eighteen (18) months previously provided
to twelve (12) months, Employee will receive a one-time cash payment of
$119,000.
(c) The payments described in subsections (a) and (b) above shall
be payable within ten (10) days after the signing of this Agreement. Such
payments shall be subject to required tax withholding.
(d) The Employee will be entitled to four (4) weeks of paid
vacation per year.
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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 and Employee expressly understand
and agree that the employment relationship is at-will. Either party may
terminate the Employment Period and the employment relationship upon written
notice to the other at any time and for any reason. Employee will make every
reasonable effort to give Atlas at least three months prior, written notice of
Employee's voluntary termination of employment for other than Good Reason.
4.2 RIGHTS FOLLOWING TERMINATION.
(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 Employee's execution of a release upon terms and
conditions mutually acceptable to the Employee and Atlas, the Employee shall be
entitled to: (i) receive, in a single lump sum payment within 10 business days
after such termination, an amount equal to twelve (12) months of Employee's
monthly Base Salary; (ii) reimbursement of Employee's relocation expenses back
to the Chicago, Illinois area in accordance with the Company's relocation
policies and practices (including gross up for taxes); and (iii) continued
coverage and rights and benefits available under the employee benefit programs
of Atlas as provided in Section 3.3 above for a period of 12 months from the
date of termination; PROVIDED, HOWEVER, that any such continued coverage shall
cease in the event Employee obtains comparable coverage in connection with
subsequent employment, 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.
(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 for the current pay period but unpaid as of the date of such death or
Permanent Disability shall be paid to the
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Employee or Employee's personal representative. In addition, upon the Permanent
Disability of the Employee, Employee shall be entitled to the compensation and
benefits set forth in Section 4.2 (a) (i), (ii) and (iii) above, and upon the
death of Employee, Employee's immediate family shall be entitled to the
compensation and benefits set forth in Section 4.2 (a) (i), (ii) and (iii)
above.
(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 Employee's Base Annual Salary which is accrued for the current pay
period but unpaid as of the date of termination.
4.3 NON-COMPETITION PROVISION. (a) Employee covenants and agrees
that except when required to do so in the ordinary course of his duties,
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 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.
(b) In addition, Employee covenants and agrees that, at no time
before the first anniversary of Employee's termination of employment with Atlas,
will Employee engage in any of the following activities 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:
(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
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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 covenants and agrees that, in the event
that immediately before his termination of employment with Atlas he is employed
in an exclusively non-attorney position which he has undertaken voluntarily, at
no time before the first anniversary of such 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 in a non-attorney capacity with, or
give non-legal advice to, Evergreen International, Gemini Air Cargo, World
Airways, Air Atlanta, Kalitta Air or Southern Air. The parties agree and intend
that breach of this non-competition clause shall subject Employee to the full
measure of contract and equitable damages.
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, the parties may proceed to ("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
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request, by written notice to the other party, that Negotiation be facilitated
by a single mediator, to be selected by the parties (the "Mediator"). The other
party may, but is not required to, agree to such a process.
If the parties agree to pursue Mediation, 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 agreement during this period, the Mediator shall be
discharged.
5.3 ARBITRATION. 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, may be 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.
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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.
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; provided,
however, that Employee shall, if successful, be entitled to recover all his
costs and expenses including attorneys fees. 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 the validity or enforceability of any other
covenant or provision of this Agreement. In the event a court of competent
jurisdiction or an Arbitrator would otherwise hold any part hereof unenforceable
by reason of its geographic or business scope or duration, said part
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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 to 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.
7.5 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.
7.6 FULL UNDERSTANDING. Employee declares and represents that
Employee 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 Employee's own free will, without any duress,
being fully informed and after due deliberation, voluntarily
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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 (except for any prior indemnity agreements, restricted stock
agreements or stock option agreements) supersedes all prior agreements,
arrangements, and understandings between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
the date, and year first above written.
EMPLOYEE ATLAS AIR, INC.
/s/ John W. Dietrich /s/ Illegible
- -------------------------------- --------------------------------
John W. Dietrich
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