EXHIBIT 4.4
ATLAS AIR, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Including First Amendment)
1. Purposes of the Plan
The Atlas Air, Inc. Employee Stock Purchase Plan (the "Plan") is
intended to provide a suitable means by which eligible employees of At1as Air,
Inc. (the "Company") and participating subsidiaries may accumulate, through
voluntary, systematic payroll deductions, amounts regularly credited for their
account to be applied to the purchase of shares of the common stock, par value
$0.01, of the Company (the "Common Stock") pursuant to the exercise of options
granted from time to time hereunder. The Plan provides employees with
opportunities to acquire proprietary interests in the Company, and will also
provide them with additional incentives to continue their employment and promote
the best interests of the Company. Options granted under the Plan are intended
to qualify under Section 423 of the Internal Revenue Code of 1986, as amended
(the "Code"). The term "subsidiary" as used in the Plan shall mean a subsidiary
corporation of the Company within the meaning of Section 424(f) of the Code. For
purposes of the Plan, masculine terminology shall also be construed to include
the feminine.
2. Shares of Stock Subject to the Plan
Subject to the provisions of Section 12, the maximum number of shares of
Common Stock which may be issued on the exercise of options granted under the
Plan is 1,500,000 shares of the Company's Common Stock. Any shares subject to an
option under the Plan, which option for any reason expires or is terminated
unexercised as to such shares, shall again be available for issuance on the
exercise of other options granted under the Plan. Shares delivered on the
exercise of options may, at the election of the Board of Directors of the
Company, be authorized but previously unissued Common Stock or Common Stock
reacquired by the Company, or both.
3. Administration
The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"), which shall be composed of
not less than two members of the Board of Directors of the Company, all of whom
shall be ineligible to participate in this Plan and shall otherwise qualify as
disinterested persons for purposes of Rule l6b-3(c)(2)(i) promulgated by the
Securities and Exchange Commission. Subject to the provisions of the Plan, the
Committee shall have full discretion and the exclusive power (i) to determine
the terms and conditions under which shares shall be offered and corresponding
options shall be granted under the Plan for any Purchase Period (as defined in
Section 6) consistent with the provisions of the Plan, and (ii) to resolve all
questions relating to the administration of the Plan.
The interpretation and application by the Committee of any provision of
the Plan shall be final and conclusive on all employees and other persons
having, or claiming to have, an interest under the Plan. The Committee may in
its discretion establish such rules and guidelines relating to the Plan as it
may deem desirable.
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The Committee may employ such legal counsel, consultants and agents as
it may deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counsel or consultant and any computation
received from any such consultant or agent. The Committee shall keep minutes of
its actions under the Plan.
No member of the Board of Directors or the Committee shall be liable for
any action or determination made in good faith with respect to the Plan or any
options granted hereunder.
4. Eligibility to Participate
The persons eligible to participate in this Plan shall be all employees
(including officers) of the Company who have completed at least 1 year of
employment with the Company and its subsidiaries, but excluding employees whose
customary employment is for not more than five months in any calendar year or 20
hours or less per week. The Board of Directors of the Company may designate any
subsidiary of the Company as a participating subsidiary for purposes of the Plan
in which event employees of such subsidiary meeting the foregoing requirements
shall also be eligible persons for the applicable Purchase Period(s). An
employee who is eligible to participate in this Plan pursuant to the foregoing
sentence is hereinafter referred to as an "Employee."
On or before the beginning of each Purchase Period, the Company will
furnish to each Employee a notice (hereinafter called a "Notice of Shares
Offered") stating the maximum number of shares which such Employee shall be
eligible to purchase for such Purchase Period in accordance with the provisions
of clause (ii) in the first paragraph of Section 5.
Nothing contained in the Plan shall confer upon any Employee any right
to continue in the employ of the Company or any of its subsidiaries, or
interfere in any way with the right of the Company or any of its subsidiaries to
terminate his employment at any time.
5. Participation in the Plan
An Employee may participate in the Plan only as of the beginning of a
Purchase Period. If an individual becomes eligible to participate in the Plan
after the commencement of a Purchase Period, he may not participate in the Plan
until the beginning of the next Purchase Period. A copy of the Plan will be
furnished to each Employee prior to the beginning of the first Purchase Period
during which he may participate in the Plan. To participate in the Plan an
Employee must deliver (or cause to be delivered) to the Company, prior to the
commencement of the first Purchase Period during which he wishes to participate
in the Plan, a contingent subscription for Common Stock and authorization for
payroll deductions to effect the purchase of Common Stock (hereinafter called a
"Participation Election"). In his Participation Election an Employee must:
(i) authorize payroll deductions within the limits prescribed in
Sections 8 and 9 and specify the percentage to be deducted
regularly from his Compensation (as defined in Section 8);
(ii) elect and authorize the purchase by him for each Purchase
Period of a number of shares of Common Stock on the Exercise
Date (as defined in Section 7) with respect to the applicable
Purchase Period which shall not exceed the number of shares
which may be purchased at a price equal to 85% of the Fair
Market Value (determined in accordance with Section 7) of the
Common Stock on the first day of such Purchase Period with
the anticipated aggregate amount of payroll deductions
authorized for the Purchase Period (based on the
participant's Compensation in effect on the first day of the
Purchase Period);
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(iii) furnish the exact name or names and address or addresses in
which stock certificates for Common Stock purchased by him
under the Plan are to be issued; and
(iv) agree to notify the Company if he should dispose of Common
Stock purchased through the Plan within two years of the
commencement of the Purchase Period in which he purchased
such Common Stock.
Stock certificates for shares of Common Stock purchased under the Plan
may be issued in the Employee's name or, if so designated by the Employee, in
his name and the name of another person who is a member of his family, with
right of survivorship; for this purpose the "family" of an Employee shall
include only his spouse, his ancestors and lineal descendants and his brothers
and sisters.
An Employee need not, and may not, make any down payment in order to
participate in the Plan.
Participation in the Plan is entirely voluntary, and a participating
Employee may withdraw from participation as provided in Section 15 during any
Purchase Period at any time prior to the Exercise Date for such Purchase Period.
The Committee may establish a maximum number of shares of Common Stock
which any Employee may purchase under the Plan for a Purchase Period, which
amount need not be the same for each Purchase Period.
6. Purchase Periods; Grant of Options
Each Purchase Period under the Plan shall commence on the first day of a
calendar quarter (or, for the first Purchase Period, such date established by
the Committee following the effective date specified in Section 20) and end on
the last day of such calendar quarter, and shall include all pay periods ending
within it. For this purpose, calendar quarters begin on January 1, April 1, July
1 and October 1. During each Purchase Period participating Employees shall
accumulate credits to a bookkeeping account maintained by the Company
(hereinafter referred to as a "Stock Purchase Account") through payroll
deductions to be made at the close of each pay- period for the purchase of
shares of Common Stock under the Plan. For each Purchase Period the Company
shall grant options to participating Employees with respect to the number of
shares of Common Stock (subject to the provisions of Sections 2, 5, 11 and 12)
which shall be purchasable through the application of amounts credited to each
such Employee's Stock Purchase Account at the purchase price per share
determined on the Exercise Date for the Purchase Period (such number of shares
to be subject to reduction in the event of a pro rata apportionment provided for
in Section 17).
7. Exercise Dates and Purchase Prices
The last business day of each Purchase Period shall constitute the
"Exercise Date" for such Purchase Period. Subject to the Provisions of Section
12, the purchase price per share of Common Stock to be purchased on an Exercise
Date pursuant to the exercise or options granted for the Purchase Period,
through the application of amounts credited during such Purchase Period to the
Stock Purchase Accounts of participating Employees, shall be the lesser of:
(A) an amount equal to 85% of the Fair Market Value of the Common
Stock at the time such option is granted (i.e., the first day of the
Purchase Period), or
(B) an amount equal to 85% of the Fair Market Value of the Common
Stock at the time such option is exercised (i.e., the Exercise Date).
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For purposes of the Plan, the Fair Market Value of a share of the Common Stock
on any date shall be (1) if the Common Stock is traded on an established
securities market, the mean between the high and low prices of such Common Stock
for such date, and (2) if the Common Stock is not so traded, an amount
determined by the Committee in good faith and based upon such factors as it
deems relevant to such determination.
8. Payroll Deductions - Authorization and Amount
Employees shall authorize in their Participation Elections from 1% to
15% (in whole percentage increments) of their Compensation to which such
election relates (subject to the limitations of Section 9). For purposes of the
Plan, the "Compensation" of an Employee for any Purchase Period shall mean the
gross amount of his base pay on the basis of his regular, straight-time hourly,
weekly or monthly rate for the number of hours normally worked, exclusive of
overtime, bonuses, shift premiums or other compensation.
By delivering to the Company at least seven days prior to the
commencement of the next Purchase Period a revised Participation Election, a
participating Employee may change the amount to be deducted from his
Compensation during the next Purchase Period and any subsequent Purchase Period
subject to the limitations of this Section 8 and Section 9.
A participating Employee's authorization for payroll deductions will
remain in effect for the duration of the Plan, subject to the provisions of
Sections 11 and 14, unless his election to purchase Common Stock shall have been
terminated pursuant to the provisions of Section 13, the amount of the deduction
is changed as provided in this Section 8 or the Employee withdraws or is
considered to have withdrawn from the Plan under Section 15 or 16.
All amounts credited to the Stock Purchase Accounts of participating
Employees shall be held in the general funds of the Company but shall be used
from time to time in accordance with the provisions of the Plan.
9. Limitations on the Granting of Options
Anything in the Plan to the contrary notwithstanding, no participating
Employee may be granted an option which permits his rights to purchase Common
Stock under all employee stock purchase plans of the Company and its parent and
subsidiary corporations (if any) to accrue at a rate which exceeds $25,000 of
Fair Market Value of such Common Stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
For purposes of this Section 9:
(i) the right to purchase stock under an option accrues when the
option (or any portion thereof) first becomes exercisable
during the calendar year;
(ii) the right to purchase stock under an option accrues at the
rate provided in the option, but in no case may such rate
exceed $25,000 of fair market value of such stock (determined
at the time such option is granted) for any one calendar
year; and
(iii) a right to purchase stock which has accrued under one option
granted pursuant to the Plan may not be carried over to any
other option.
No participating Employee may be granted an option hereunder if such
Employee, immediately after the option is granted, owns (within the meaning of
Section 423(b)(3) of the Code) stock possessing five percent or more of the
total combined voting power or value of all classes of stock of the Company or
of its parent or subsidiary corporation. For purposes of the Plan, the terms
"parent corporation" and "subsidiary corporation" shall have the respective
meanings set forth in Section 424 of the Code.
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10. Stock Purchase Accounts
The amounts deducted from the Compensation of each participating
Employee shall be credited to his individual Stock Purchase Account. Employees
participating in the Plan may not make direct cash payments to their Stock
Purchase Accounts.
Following the close of each Purchase Period the Company will furnish to
each participating Employee a statement of his individual Stock Purchase
Account. This statement shall show (i) the total amount of payroll deductions
for the Purchase Period just closed, (ii) the number of full shares (and the
purchase price per share) of Common Stock purchased pursuant to the provisions
of Section 11 by the participating Employee for the Purchase Period, and (iii)
any remaining balance of his payroll deductions which is to be refunded to the
Employee following the close of the Purchase Period (or carried forward to the
next Purchase Period in the case of amounts representing fractional shares).
11. Issuance and Purchase of Common Stock
Shares of Common Stock may be purchased by participating Employees only
on the Exercise Date for each Purchase Period; and the options which the Company
grants to participating Employees to purchase Common Stock for a Purchase Period
may be exercised only on the Exercise Date, and their elections to purchase
Common Stock pursuant to the exercise of such options shall not become
irrevocable until the close of business on the day prior to the Exercise Date.
No fractional shares of Common Stock may be purchased hereunder. The purchase
price per share shall be determined as set forth in Section 7.
A participating Employee who purchases Common Stock pursuant to the
exercise of options granted under the Plan shall purchase as many full shares as
shall be provided in his Participation Election, subject to the limitations set
forth in Sections 8, 9, 12 and 17; provided that in no event may shares be
purchased other than by application of the balance in his Stock Purchase Account
on the Exercise Date and that in no event may a participating Employee purchase
a greater number of shares than would be purchasable at the purchase price
determined in accordance with Section 7 through the application of the balance
in his Stock Purchase Account on the Exercise Date for the Purchase Period to
which the option relates. Any balance remaining in such a participating
Employee's Stock Purchase Account following an Exercise Date shall be refunded
to the Employee as soon as practicable thereafter; provided, however, that a
participating Employee may elect to carry over any such balance representing a
fractional share to the next succeeding Purchase Period.
Certificates for Common Stock so purchased shall be delivered to the
Employee as soon as practicable.
All rights as an owner of shares of Common Stock purchased under the
Plan shall accrue to the participating Employee who purchased the shares
effective as of the Exercise Date on which amounts credited to his Stock
Purchase Account were applied to the purchase of the shares; and such Employee
shall not have any rights as a stockholder prior to such Exercise Date by reason
of his having elected to purchase such shares.
12. Issuance and Purchase of Common Stock
If the Company is a party to any merger or consolidation, or undergoes
any separation, reorganization or liquidation, the Committee shall have the
power to make arrangements, which shall be binding upon the Employees then
participating in the Plan, for (i) the purchase of shares subject to outstanding
Participation Elections for the Purchase Period occurring at such time, (ii) for
the assumption of the Company's undertakings with respect to the Plan by another
corporation, or (iii) for the cancellation of outstanding Participation
Elections and options to purchase shares and the payment by the Company of an
amount (not less than the amount then credited to Employees' respective Stock
Purchase Accounts) determined by the Committee in consideration therefor. In
addi-
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tion, in the event of a reclassification, stock split, combination of
shares, separation (including a spin-off), dividend on shares of the Common
Stock payable in stock, or other similar change in capitalization or in the
corporate structure of shares of the Common Stock of the Company, the Committee
shall conclusively determine the appropriate adjustment in the purchase price
and other terms of purchase for shares subject to outstanding Participation
Elections for the Purchase Period occurring at such time in the number and kind
of shares or other securities which may be purchased for such Purchase Period
and in the aggregate number of shares which may be purchased under the Plan. Any
such adjustment in the shares or other securities subject to the outstanding
options granted to such Employees (including any adjustment in the option price)
shall be made in such manner as not to constitute a modification as defined by
Section 424(h)(3) of the Code and only to the extent permitted by Sections 423
and 424 of the Code.
13. No Assignment of Plan Rights or of Purchased Stock
An Employee must promptly advise the Company if a disposition shall be
made of any shares of Common Stock purchased by him under the Plan if such
disposition shall have occurred within two years of the commencement of the
Purchase Period in which he purchased such shares.
A participating Employee's privilege to purchase Common Stock under the
Plan can be exercised only by him; and he cannot purchase Common Stock for
someone else, although he may designate (in accordance with the provisions of
Section 5) that stock certificates for Common Stock purchased by him be issued
in the joint names of himself and a member of his family.
An Employee participating in the Plan may not sell, transfer, pledge or
assign to any other person any interest, privilege or right under the Plan or in
any amounts credited to his Stock Purchase Account; and if this provision shall
be violated, his election to purchase Common Stock shall terminate, and the only
right remaining thereunder will be to have paid to the person entitled thereto
the amount then credited to the Employee's Stock Purchase Account.
14. Suspension of Deductions
A participating Employee's payroll deductions under the Plan shall be
suspended if on account of a leave of absence, layoff or other reason a
participating Employee does not have sufficient Compensation in any payroll
period to permit his payroll deductions authorized under the Plan to be made in
full. The suspension will last until the participating Employee again has
sufficient Compensation to permit such payroll deductions to be made in full;
but if the suspension shall not have been removed by the Exercise Date for the
Purchase Period in which it began, the participating Employee will be considered
to have withdrawn from the Plan as provided for in Section 15.
15. Withdrawal from, and Reparticipation in, the Plan
During any Purchase Period a participating Employee may withdraw from
the Plan at any time prior to the Exercise Date for the Purchase Period; and,
subject to, and in accordance with, the provisions of Sections 5 and 8, he may
again participate in the Plan at the beginning of any Purchase Period subsequent
to the Purchase Period in which he withdrew. Withdrawal of a participating
Employee shall be effected by written notification prior to such Exercise Date
to the Company on a form which the Company shall provide for this purpose
("Notice of Withdrawal"). In the event a participating Employee shall withdraw
from the Plan, all amounts then credited to his Stock Purchase Account shall be
returned to him as soon as practicable after his Notice of Withdrawal shall have
been received.
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If an Employee's payroll deductions shall be interrupted by any legal
process, a Notice of Withdrawal will be considered as having been received from
him on the day the interruption shall occur.
16. Termination of Participation
A participating Employee's right to continue participation in the Plan
will terminate upon the earliest to occur of (i) the Company's termination of
the Plan, (ii) his transfer to ineligible employment status, or (iii) his
retirement, disability, death or other termination of employment with the
Company and its subsidiaries. Upon the termination of an Employee's right to
continue participation in the Plan on account of the occurrence of any of the
foregoing events, all amounts then credited to his Stock Purchase Account not
already used for the purchase of Common Stock will be repaid as soon as
practicable. Such repayment shall be made to the participating Employee unless
the termination of participation occurred by reason of such Employee's death, in
which event such repayment shall be made to such Employee's beneficiary. For
this purpose, an Employee's beneficiary shall be the person, persons or entity
designated by the Employee on a form prescribed by and delivered to the
Committee or, in the absence of an effective beneficiary designation, the
Employee's estate; provided, however, that the determination of the Employee's
beneficiary hereunder shall be subject to any applicable community property or
other laws.
17. Apportionment of Stock
If at any time shares of Common Stock authorized for the purposes of the
Plan shall not be available in sufficient number to meet the purchase
requirements under all outstanding Participation Elections, the Committee shall
apportion the remaining available shares among participating Employees on a pro
rata basis. In no case shall any apportionment of shares be made with respect to
a participating Employee's election to purchase unless such election is then in
effect (subject only to any suspension provided for in the Plan). The Committee
shall give notice of any such apportionment and of the method of apportionment
used to each participating Employee to whom shares shall have been apportioned.
18. Government Regulations
The Plan and the obligation of the Company to issue, sell and deliver
Common Stock under the Plan are subject to all applicable laws and to all
applicable rules, regulations and approvals of government agencies.
19. Amendment or Termination
The Board of Directors of the Company may at any time amend, suspend or
terminate the Plan; provided, however, that no amendment (other than an
amendment authorized by Section 12) may be made increasing the aggregate number
of shares of Common Stock which may be issued pursuant to the Plan, reducing the
minimum purchase price at maximum period during which shares may be purchased
hereunder or changing the class of employees eligible to participate hereunder,
without the approval of the holders of a majority of the outstanding voting
shares of the Company.
20. Effective Date
The Plan shall become effective on the later of (i) the IPO Date (as
hereinafter defined) or (ii) the date of its adoption by the Board of Directors
of the Company, subject to approval of the Plan by the holders of a majority of
the outstanding voting shares of the Company within 12 months after the date of
the Plan's adoption by said Board of Directors. In the event of the failure to
obtain such shareholder approval, the Plan shall be null and void and the shares
of Common Stock may be issued under the Plan until such shareholder approval has
been
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obtained. For purposes of this Section 20, the "IPO Date" shall mean the
date on which shares of Common Stock of the Company are first sold to the
public.
21. Termination
Subject to earlier discontinuance in accordance with Section 19, the
Plan shall terminate on June 10, 2010. Any unexpired Purchase Period that
commenced prior to such termination date shall forthwith expire on such
termination date, which shall be deemed the Exercise Date for such Purchase
Period.
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