Exhibit 10.2
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SEPARATION AGREEMENT AND GENERAL RELEASE
Aircastle Advisor LLC, a Delaware limited liability company ("Aircastle"),
and Mark Zeidman ("Employee") have entered into this Separation Agreement and
General Release (this "Agreement") as of this 12th day of April, 2007
(collectively referred to as the "Parties"). Aircastle Limited, a Bermuda
exempted company ("Parent"), is a signatory to this Agreement solely with
respect to obligations herein related to its shares. In consideration of the
mutual promises contained herein, the Parties agree as follows:
1. Last Day of Employment. Employee and Aircastle agree that Employee's
employment with Aircastle shall terminate on April 30, 2007, or such
earlier date as may be agreed upon by Employee and Aircastle (the date on
which such a qualifying termination occurs being called the "Termination
Date"). If Employee's employment is terminated in accordance with the
preceding sentence, Aircastle will pay Employee all earned but unpaid
salary and all accrued but unused paid time off (including vacation time)
earned by Employee (or which would have been earned if employment had
continued) through the Termination Date, less applicable withholdings and
deductions, as soon as practicable after the Termination Date. In
addition, Aircastle will reimburse Employee for all business expenses
incurred on behalf of Aircastle through the Termination Date, in
accordance with Aircastle's policies with respect to the reimbursement of
expenses. Employee hereby confirms that effective on the Termination Date
(or any other termination of employment), Employee will no longer hold any
positions as an officer, director or employee of Aircastle (including its
parents, subsidiaries and affiliates at any level), and Employee agrees to
promptly execute such customary documents and take such customary actions
as may be necessary or reasonably requested by Aircastle to effectuate or
memorialize the termination of such positions. Employee and Aircastle
agree that Employee shall serve as Aircastle's Chief Financial Officer
until the Termination Date, or such earlier date as Aircastle may hire
another individual to serve as Chief Financial Officer (the "Transition
Date"). If a Transition Date occurs, then, effective as of such date,
Employee hereby resigns his position as Chief Financial Officer and any
positions as an officer or director of Aircastle (and its parents,
subsidiaries and affiliates at any level), and agrees to promptly execute
such customary documents and take such customary actions as may be
necessary or reasonably requested by Aircastle to effectuate or
memorialize the termination of such positions. Employee shall continue to
serve as a key employee of Aircastle after the Transition Date, assisting
in the transition until the Termination Date.
2. Special Payments
(a) Separation Payment I. Subject to this Agreement having been
completely executed and not revoked during the revocation period
described in Section 17 hereof, and if (and only if) Employee's
employment is terminated in accordance with the first sentence of
Section 1 hereof, 30,000 of the shares subject to the terms of the
Restricted Share Agreement dated as of March 8, 2006, between
Employee and Aircastle (the "Restricted Share Agreement") under the
Amended and Restated Aircastle Limited 2005 Equity and Incentive
Plan, shall become
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fully vested on, or as of, the Termination Date. Such vested shares
shall be delivered to Employee as soon as practicable after their
vesting (such vesting and delivery being called the "Separation
Payment I"). Employee acknowledges that this Separation Payment I is
in addition to any amounts to which Employee is already entitled and
that the payment is adequate and satisfactory consideration for the
assurances made by Employee in this Agreement, including, without
limitation, the general release of claims given in Section 3 hereof.
(b) Separation Payment II and Final Separation Agreement. A form of
"Final Separation Agreement" is attached hereto as Exhibit A. If
(and only if) Employee's employment is terminated in accordance with
the first sentence of Section 1 hereof, Employee will be asked to
execute a Final Separation Agreement substantially in the form
attached hereto on or after the Termination Date; however, the
provisions of this Agreement are not contingent upon Employee's
execution of the Final Separation Agreement. Subject to the Final
Separation Agreement having been completely executed by Employee and
not revoked during the revocation period described therein, 20,000
of the shares subject to the Restricted Share Agreement shall become
fully vested in accordance with the provisions of the Final
Separation Agreement and shall be delivered as soon as practicable
after such vesting (such vesting and delivery being called the
"Separation Payment II").
(c) Possible Forfeiture of Shares. Employee agrees that those 50,000
restricted shares described in Sections 2(a) and 2(b) hereof shall
vest only in accordance with those Sections and shall otherwise be
forfeited upon a termination of employment.
3. Employee General Release of Claims. Employee for Employee, Employee's
estate, Employee's heirs, family members, successors and assigns hereby
voluntarily, knowingly and willfully forever releases and discharges
Aircastle and its Parent, affiliates, successors, assigns, employees,
officers, directors, representatives, shareholders, agents and all persons
acting by, through, under or in concert with Aircastle in both their
official and personal capacities (the "Releasees") from any and all
claims, whether or not known, accrued, vested or ripe, that Employee has
or may have against the Releasees arising from or in any way related to
Employee's employment with Aircastle up to and including the date of
execution of this Agreement or related to the termination of that
employment relationship in accordance with the contractual provisions of
this Agreement, including, but not limited to, any such claim for an
alleged violation of the following statutes and court-made legal
principles:
o Title VII of the Civil Rights Act of 1964, as amended;
o The Civil Rights Act of 1991;
o Any claim arising under the provisions of the False Claims Act,
31 U.S.C.A. ss. 3730, including, but not limited to, any right
to personal gain with respect to any claim asserted under its
"qui tam" provisions;
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o Sections 1981 through 1988 of Title 42 of the United States
Code, as amended;
o The Employee Retirement Income Security Act of 1974, as amended;
o The Immigration Reform and Control Act, as amended;
o The Americans with Disabilities Act of 1990, as amended;
o The Age Discrimination in Employment Act of 1967, as amended;
o The Older Workers' Benefit Protection Act of 1990, as amended;
o The Workers Adjustment and Retraining Notification Act, as
amended;
o The Occupational Safety and Health Act, as amended;
o The Connecticut Fair Employment Practices Act;
o Connecticut labor laws, as contained in Title 31 of the General
Statutes of Connecticut;
o any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or ordinance;
o any claims arising out of or related to an express or implied
employment contract (including, without limitation, the letter
agreement between Employee and Aircastle Investment Limited
dated February 3, 2005, and the letter agreement between
Employee and Aircastle Advisor LLC dated March 8, 2006,
together, the "Employment Letter") or a covenant of good faith
and fair dealing;
o any public policy, contract, tort, or common law; or
o any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
Notwithstanding the foregoing, nothing in this Agreement shall
release or waive any rights or claims Employee may have: (i) under
this Agreement; (ii) for indemnification under any written
indemnification agreement by and between Employee and Aircastle
and/or under applicable law or Aircastle's charter or bylaws; (iii)
under any applicable insurance coverage(s); or (iv) with respect to
any accrued and vested benefits under any tax-qualified retirement
plans.
4. Aircastle Release. Aircastle also agrees to waive all known claims against
Employee, but such waiver shall exclude, whether known or unknown: (a) any
claims arising out of alleged criminal, fraudulent or willful conduct by
Employee in connection with his activities as an employee of Aircastle,
(b) any violation by Employee of any policies of Aircastle relating to the
performance of his duties which results in a claim against
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Aircastle or any affiliate or a loss to Aircastle or any affiliate arising
out of such violation, (c) a violation of any securities or other
governmental laws, rules or regulations relating to Employee's duties as
an employee of Aircastle, and (d) claims initiated by any third parties or
claims for indemnification and/or contribution arising from any claims
initiated by third parties. Notwithstanding the foregoing, Aircastle does
not release its right to have Employee perform his obligations under this
Agreement (including, without limitation, his obligations under Section 9
hereof with respect to the restrictive covenants section of the Employment
Letter).
5. Affirmations. Employee and Aircastle each affirm that neither has filed,
caused to be filed, or presently is a party to any claim, complaint, or
action against the other in any forum or form. Employee furthermore
affirms that Employee has no known workplace injuries or occupational
diseases, and has been provided and has not been denied any leave
requested under the Family and Medical Leave Act. Employee disclaims and
waives any right of reinstatement with Aircastle. Aircastle and Parent
affirm that, in accordance with the terms of the Restricted Share
Agreement, Employee is entitled to receive all dividends declared, with a
record date prior to any forfeiture of such shares, on the shares subject
to the Restricted Share Agreement, without regard to any restrictions on
dividend receipt under the award's governing documents which might
otherwise apply. Aircastle and Parent further affirm that, after the
Termination Date has passed and vesting has occurred as provided in this
Agreement, the vested shares granted pursuant to the Restricted Share
Agreement will be freely transferable by Employee, without restriction
under (i) any agreement to which Aircastle or Parent is a party and (ii)
any policy of Aircastle or Parent (other than any applicable provision of
the Amended and Restated Insider Trading compliance Program of Aircastle
Limited adopted as of February 22, 2007). The vested shares granted
pursuant to the Restricted Share Agreement will be subject to certain
requirements under state or federal securities law.
6. Benefits and COBRA. Except as otherwise provided in this Section 6,
effective as of the Termination Date, Employee will cease all Aircastle
health benefit coverage and (except as provided in this Agreement) other
benefit coverage. Employee acknowledges that Aircastle has advised
Employee that pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA), Employee has a right to elect continued coverage
under the Aircastle group health plan for a period of eighteen (18) months
from the Termination Date.
7. Non-Disparagement. Employee agrees not to make critical, negative or
disparaging remarks about Aircastle, including, but not limited to,
comments about any of its products, services, management, business or
employment practices, and not to voluntarily aid or voluntarily assist any
person in any way with respect to any third party claims pursued against
Aircastle. Aircastle agrees to cause its "executive officers" (as defined
in Rule 3b-7 under the Securities Exchange Act of 1934, as amended) not to
engage in, conduct or make statements or representations that are
critical, negative or disparaging with respect to Employee, Employee's
business or personal reputation. If called to provide information to any
actual or prospective subsequent employer of Employee, Aircastle will only
disclose those matters covered in public filings, and that Employee's
departure was amicable. Any description of Employee's departure from
Aircastle in any public
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filing or document (or otherwise) by or on behalf of Aircastle shall be
accurate and fully consistent with that contained herein and shall be
fully agreed to by Employee except to the extent that Aircastle in good
faith views its disclosure requirements under applicable law to require
disclosure which is not so agreed to. Aircastle will attempt in good faith
to provide Employee with an opportunity to review and comment on any such
filing or document (or any written internal or external announcement of
his departure) before it is publicly disclosed (or announced). Nothing in
this Section will prevent the Employee or Aircastle from responding fully
and accurately to any question, inquiry or request for information when
required by applicable law or legal process.
8. '34 Act Filing. Aircastle will disclose the existence and terms and will
file this Agreement with the Securities and Exchange Commission in
satisfaction of its reporting obligations under the Securities and
Exchange Act of 1934, as amended. The Form 8-K to be filed to which this
Agreement shall be attached as an exhibit and any press release issued in
connection with Employee's departure from Aircastle shall first be
furnished to Employee with an opportunity for Employee to comment, and
Aircastle will attempt in good faith to provide Employee with an
opportunity to review any changes or additions to any such disclosure in
any other public filings or disclosure in advance.
9. Continuing Obligations to Aircastle. The Parties' rights and obligations
under the provisions of the restrictive covenants section of the
Employment Letter relating to non-competition, non-solicitation of
employees, clients and others, and confidentiality are unaffected by the
execution of this Agreement and are incorporated by reference herein;
provided, however, that the Parties agree that the non-competition
covenant of the Employment Letter shall apply for six (6) months following
a termination of Employee's employment in accordance with the first
sentence of Section 1 hereof and that the non-solicitation covenant of the
Employment Letter shall apply for eighteen (18) months following a
termination of Employee's employment in accordance with the first sentence
of Section 1 hereof, except as is otherwise mutually agreed by the
Parties. Commencing on the Termination Date, Employee will cooperate in
all reasonable respects with Aircastle and its affiliates in connection
with any and all existing or future litigation, actions or proceedings
(whether civil, criminal, administrative, regulatory or otherwise) brought
by or against Aircastle or any of its affiliates, to the extent Aircastle
reasonably deems Employee's cooperation necessary. Employee shall be
reimbursed for all out-of-pocket expenses incurred by Employee as a result
of such cooperation. With respect to any and all existing or future
litigation, actions or proceedings (whether civil, criminal,
administrative, regulatory or otherwise) brought against Employee in
connection with his employment by Aircastle, Aircastle will honor, and
proceed in accordance with, its bylaws.
10. Return of Personal Property. Aircastle has promised to return to Employee
all items of personal property located at Employer's business premises
prior to the Termination Date. Employee promises to return to Aircastle
all items of Aircastle property in Employee's possession no later than the
Termination Date.
11. Notices. All notices, demands, consents or communications required or
permitted hereunder shall be in writing. Any notice, demand or other
communication given under this Agreement shall be deemed to be given if
given in writing (including facsimile or similar transmission) addressed
as provided below (or at such other address as the addressee shall have
specified by notice actually received by the sender) and if either (a)
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actually delivered in fully legible form to such address or (b) in the
case of a letter, five (5) days shall have elapsed after the same shall
have been deposited in the United States mail, with first-class postage
prepaid and registered or certified:
To Employer Corporation: Aircastle Limited.
c/o Aircastle Advisor LLC
300 First Stamford Place, 5th
Stamford, Connecticut 06902
Attention: General Counsel
With a copy to:
Skadden Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY, 10036-6522
Fax: (212) 735-2000
Attention: Joseph A. Coco, Esq.
To Employee:
Mark Zeidman
At address currently on Aircastle's
records
With a copy to:
Pearl Zuchlewski
500 Fifth Avenue, Suite 5100
New York, New York 10110-5197
Fax: (212) 869-4648
12. Governing Law and Interpretation. This Agreement shall be governed and
controlled by and in accordance with the laws of the State of Connecticut
without regard to its conflict of laws provision. In the event Employee or
Aircastle breaches any provision of this Agreement, Employee and Aircastle
affirm that either may institute an action to specifically enforce any
term or terms of this Agreement. Venue for any action brought to enforce
the terms of this Agreement or for breach thereof shall lie in any court
of competent jurisdiction in Stamford, Connecticut. Should any provision
of this Agreement be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, excluding
the general release language, such provision shall immediately become null
and void, leaving the remainder of this Agreement in full force and
effect. The Parties affirm that this Agreement is the product of
negotiation and agree that it shall not be construed against either Party
on the basis of sole authorship.
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13. Nonadmission of Wrongdoing. The Parties agree that neither this Agreement
nor the furnishing of the consideration for same shall be deemed or
construed at anytime for any purpose as an admission by either party of
any liability, wrongdoing or unlawful conduct of any kind.
14. Amendment. This Agreement may not be modified, altered or changed except
upon express written consent of both Parties wherein specific reference is
made to this Agreement.
15. Entire Agreement. This Agreement sets forth the entire agreement between
the Parties hereto and fully supersedes any prior agreements or
understandings between the Parties, except as certain provisions of other
prior agreements are specifically incorporated by reference herein. Each
Party acknowledges that such Party has not relied on any representations,
promises, or agreements of any kind made to such Party in connection with
the other Party's decision to enter into this Agreement, except for those
set forth in this Agreement.
16. Payments and Withholding. In accordance with Section 10 of the Restricted
Share Agreement, Employee shall pay Parent promptly upon request, and in
any event at the time he recognizes taxable income in respect to the
restricted shares which vest pursuant to this Agreement or the Final
Separation Agreement, an amount equal to the taxes Parent determines it is
required to withhold. Employee shall make such payment in cash.
17. Revocation. Employee may revoke this Agreement for a period of seven (7)
calendar days following the day that Employee executes this Agreement. Any
revocation within this period must be submitted, in writing, to Aircastle
Limited, c/o Aircastle Advisor LLC, 300 First Stamford Place, 5th Floor,
Stamford, Connecticut 06902, as follows: "I hereby revoke my acceptance of
our Agreement." The revocation must be personally delivered to Aircastle's
General Counsel or mailed to his office at the above address and
postmarked within seven (7) calendar days of execution of this Agreement.
This Agreement shall not become effective or enforceable until the
revocation period has expired without this Agreement having been revoked.
If the last day of the revocation period is a Saturday, Sunday, or legal
holiday, then the revocation period shall not expire until the next
following day which is not a Saturday, Sunday, or legal holiday.
EMPLOYEE HAS BEEN ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR
DAYS TO REVIEW THIS AGREEMENT AND THE GENERAL RELEASE CONTAINED HEREIN AND
HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION
OF THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO
THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL
TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES
CONTAINED HEREIN AND TO RECEIVE THE CONSIDERATION SET
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FORTH HEREIN, EMPLOYEE KNOWINGLY AND VOLUNTARILY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed
this Agreement as of the date first written above:
AIRCASTLE ADVISOR LLC
By: /s/ Ron Wainshal
------------------------------
Name:
Title:
EMPLOYEE
By: /s/ Mark Zeidman
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Mark Zeidman
Solely as to obligations contained herein with
respect to its shares:
AIRCASTLE LIMITED
By: /s/ Ron Wainshal
------------------------------------
Name:
Title:
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Exhibit A
Final Separation Agreement
This will confirm the understanding of "Employee" and "Aircastle" (as
defined in the Separation Agreement and General Release entered into between
them as of April 12, 2007 (the "Separation Agreement") and their final agreement
(this "Final Separation Agreement") with respect to the termination of
Employee's employment with Aircastle. Aircastle Limited, a Bermuda exempted
company ("Parent"), is a signatory to this Final Separation Agreement solely
with respect to obligations herein related to its shares.
1. A form of this Final Separation Agreement was attached to the Separation
Agreement. The Separation Agreement (including, but not limited to the
release of all Claims, as set forth and defined in Section 3 of the
Separation Agreement) is hereby incorporated and made a part of this Final
Separation Agreement. Employee affirms that Employee has been paid and has
received all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and benefits to which Employee may be entitled (other than
payments to be provided after the Termination Date in accordance with the
Separation Agreement and this Final Separation Agreement) and that no
other leave (paid or unpaid), compensation, wages, bonuses, commissions
and benefits are due to Employee (other than payments to be provided after
the Termination Date in accordance with the Separation Agreement and this
Final Separation Agreement). Employee agrees that, with Employee's
execution of this Final Separation Agreement (and upon the provisions of
this Final Separation Agreement becoming effective and enforceable after
the revocation period described in Section 3 hereof has passed without
this Final Separation Agreement having been revoked), the release of
Claims in Section 3 of the Separation Agreement shall cover any and all
Claims associated with Employee's entire employment with Aircastle and
Employee's actual separation from such employment, including, but not
limited to, any Claims arising from the date on which Employee initially
signed the Separation Agreement through Employee's last day of employment
with Aircastle. Aircastle also agrees to waive all known claims against
Employee, but such waiver shall exclude, whether known or unknown: (a) any
claims arising out of alleged criminal, fraudulent or willful conduct by
Employee in connection with his activities as an employee of Aircastle,
(b) any violation by Employee of any policies of Aircastle relating to the
performance of his duties which results in a claim against Aircastle or
any affiliate or a loss to Aircastle or any affiliate arising out of such
violation, (c) a violation of any securities or other governmental laws,
rules or regulations relating to Employee's duties as an employee of
Aircastle, and (d) claims initiated by any third parties or claims for
indemnification and/or contribution arising from any claims initiated by
third parties. Notwithstanding the foregoing, Aircastle does not release
its right to have Employee perform his obligations under the Separation
Agreement and this Final Separation Agreement (including, without
limitation, his obligations under Section 9 of the Separation Agreement
with respect to the restrictive covenants section of the Employment
Letter).
2. Subject to this Final Separation Agreement having been completely executed
and delivered and the revocation period described in Section 3 hereof
having passed without this Final Separation Agreement having been revoked,
20,000 of the restricted shares
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subject to the Restricted Share Agreement shall become fully vested as of
the Termination Date. Such vested shares shall be delivered to Employee as
soon as practicable after their vesting (such vesting and delivery being
called the "Separation Payment II"). This vesting shall be in addition to
the vesting provided in Section 2(a) of the Separation Agreement. Employee
agrees that the Separation Payment II is consideration in addition to any
amounts to which Employee is already entitled and that this consideration
is adequate and satisfactory in exchange for the assurances Employee makes
in this Final Separation Agreement.
3. Employee acknowledges Employee has been given more than twenty-one (21)
days to consider entering into this Final Separation Agreement and that
Employee has seven (7) days after Employee's execution of this Final
Separation Agreement to revoke such execution. Any revocation within this
period must be submitted, in writing, to Aircastle Limited, c/o Aircastle
Advisor LLC, 300 First Stamford Place, 5th Floor, Stamford, Connecticut
06902, "I hereby revoke my acceptance of our Final Separation Agreement."
The revocation must be personally delivered to Aircastle's General Counsel
or mailed to his office at the above address and postmarked within seven
(7) calendar days of execution of this Final Separation Agreement. This
Final Separation Agreement shall not become effective or enforceable until
the revocation period has expired without this Final Separation Agreement
having been revoked. If the last day of the revocation period is a
Saturday, Sunday, or legal holiday, then the revocation period shall not
expire until the next following day which is not a Saturday, Sunday, or
legal holiday. No provision of this Final Separation Agreement, including
Aircastle's obligations under Section 2 hereof, shall become effective or
enforceable, until Employee's right of revocation has been fully
extinguished.
[Remainder of Page Intentionally Left Blank]
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4. Employee acknowledges Employee's last day of employment with Aircastle
coincided with or preceded Employee's signing of this Final Separation
Agreement.
5. In the event of Employee's death prior to the execution of this Final
Separation Agreement, it may be executed by a representative of Employee's
estate.
EMPLOYEE AIRCASTLE ADVISOR LLC
By:
- --------------------------------- -----------------------------
Mark Zeidman
Date: Date:
--------------------------- ---------------------------
Solely as to obligations contained herein with
respect to its shares:
AIRCASTLE LIMITED
By:
----------------------------------------
Name:
Title:
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