Exhibit 10.2


 


FOURTH AMENDED AND RESTATED


EMPLOYMENT
AGREEMENT


 


FOURTH AMENDED AND RESTATED EMPLOYMENT
AGREEMENT dated as of October 25, 2004 (the “Agreement”) among
Atlantic Express Transportation Group Inc., a New York corporation (“Group”),
Atlantic Express Transportation Corp., a New York corporation (the “Company”),
and Nathan Schlenker (the “Executive”).


 


WHEREAS, the Executive is presently employed
by the Company, a wholly owned subsidiary of Group, under the Third Amended and
Restated Employment Agreement dated as of March 31, 2003, as amended by
the letter agreement dated March 2, 2004 (as amended, the “Prior
Agreement”);


 


WHEREAS, the Company desires to secure the
continued services of the Executive, and the Executive desires to continue in
the employment of the Company and, in connection therewith, the Company, Group
and the Executive desire to amend and restate the terms and provisions of the
Prior Agreement to, among other things, set forth the terms of such continued
employment.


 


NOW, THEREFORE, in consideration of the
foregoing and the respective covenants and agreements hereinafter set forth and
for other good and valuable consideration, the Company, Group and the Executive
hereby agree to amend and restate the Prior Agreement in its entirety, as
follows:


 


1. EMPLOYMENT AND DUTIES


 


1.1. General. Commencing on November 1,
2004 (the “Effective Date”), the Company shall employ the Executive, and
the Executive agrees to serve, as Director of Finance of the Company, upon the
terms and conditions herein contained during the Initial Term (as defined
below), and in such capacity the Executive agrees to serve the Company
faithfully and to the best of his ability under the direction of the Board of
Directors (the “Board”).


 


1.2. Exclusive Services. During the
Initial Term, the Executive shall devote his full-time working hours, four (4) days
a week, to his duties hereunder and shall not, directly or indirectly, render
services to any other person or organization or otherwise engage in activities
which would interfere significantly with his faithful performance of his duties
hereunder without the consent of the Board.


 


1.3. Term of Employment. The “Initial
Term” of Executive’s employment under this Agreement shall commence as of
the Effective Date and shall terminate on the earlier of (a) October 31,
2005 or (b) on the last day of the month a written notice of termination
is delivered by either party, which notices shall be delivered not less than 10
business days prior to such termination date.


 

















 


Upon the termination of the Initial Term, the
Company shall employ the Executive until October 31, 2005 (the “Second
Term”, and together with the Initial Term, the “Employment Term”) on
a part-time basis. During the Second Term, the Executive shall devote his
full-time working hours, ten (10) day days a month, to his duties. The
Company shall not have any obligation to employ the Executive for the Second
Term (a) if the Executive resigns, (b) if the Executive has been
disloyal to Group, the Company or any of their respective affiliates by
assisting transportation competitors of Group, the Company or any of their
respective affiliates to the disadvantage of Group, the Company or any of their
respective affiliates by a breach of Section 6 or by otherwise actively
assisting such competitors to the disadvantage of Group, the Company or any of
their respective affiliates (a “Disloyalty Event”) or (c) if the
Initial Term is not terminated prior to October 31, 2005.


 


2. SALARY


 


2.1. Base Salary. During the Initial
Term, the Executive shall be entitled to receive a base salary (“Base Salary”)
at a rate equal to eighty percent (80%) of the Executive’s then Base Salary
under the Prior Agreement, payable monthly on or about the 15th day
of each month in equal installments in accordance with the Company’s payroll
practices.


 


2.2. Second Term Compensation. During
the Second Term, the Executive shall be entitled to receive (a) a salary
of $8,333 per month and (b) additional compensation of $800 per day for
each day the Executive is required to work in excess of ten (10) days for
any month.


 


3. EMPLOYEE BENEFITS


 


3.1. General Benefits. The Executive
shall receive the following benefits during the Initial Term:


 


(a)                                  the
Executive will be eligible to participate in benefit programs of the Company
consistent with those benefit programs provided from time to time to other
senior executives of the Company;


 


(b)         an annual life insurance
premium allowance of $2,500 payable annually in February of each year;


 


(c)                                  an automobile
allowance of $250 per month and the exclusive use of a company car;


 


(d)                                 a travel allowance not
to exceed $15,000 annually; and


 


(e)                                  participation in any
executive incentive plan which might be implemented by the Board during the
Employment Term.


 


3.2. Vacation. During the Initial
Term, the Executive shall be entitled to 20 days paid vacation each year in
accordance with the applicable policies of the Company.


 

















 


3.3. Reimbursement of Expenses. The
Company will reimburse the Executive for reasonable, ordinary and necessary business
expenses incurred by him in the fulfillment of his duties hereunder upon
presentation by the Executive of an itemized account of such expenditures in
accordance with the Company practices consistently applied.


 


3.4. Second Term Travel Reimbursement.
During the Second Term, the Executive shall be reimbursed for his travel
expenses between his home and the Company’s offices in Staten Island, New York.


 


3.5. Benefits upon Termination. Upon
the termination of the Executive’s employment, the Company shall provide the
Executive with two (2) years of medical coverage under the same terms as
medical coverage is offered to other executives of the Company.


 


3.6. Non-Renewal Severance Pay. The
Company hereby acknowledges that the Executive is entitled to receive the
Non-Renewal Severance Pay on November 1, 2004 in accordance with the Section 3.4
of Prior Agreement.


 


4. [intentionally deleted]


 


5. [intentionally deleted]


 


6. NON COMPETITION/NON SOLICITATION AND
CONFIDENTIALITY


 


6.1. Noncompetition/Nonsolicitation.
The Executive shall not, directly or indirectly, as a sole proprietor, member
of a partnership, stockholder or investor, officer or director of a
corporation, or as an employee, associate, consultant or agent of any person,
partnership, corporation or other business organization or entity other than
the Company: (a) engage in, or acquire an interest in any entity or
enterprise which engages in, any business that is in competition with any
business actively conducted by Group, the Company or any of their respective
subsidiaries within (i) the counties then served by Group, the Company or
their respective subsidiaries as well as adjacent counties, and (ii) any
other counties in which Group, the Company or their respective subsidiaries has
made a bid within 36 months prior to the Executive’s termination and any
adjacent counties in which Group, the Company or their respective subsidiaries
conducts business; (b) solicit or endeavor to entice away from Group, the
Company or any of their respective subsidiaries any person who is, or was
during the then most recent 36-month period, employed by or associated with
Group, the Company or any of their respective subsidiaries, or (c) solicit
or endeavor to entice away from Group, the Company or any of their respective subsidiaries,
or otherwise interfere with the business relationship of Group, the Company or
any of their respective subsidiaries with, any person or entity who is, or was
within the then most recent 36-month period, a customer, client or prospect of
Group, the Company or any of their respective subsidiaries. The obligations of
this Section 6.1 shall apply for 18 months, or a period of 24 months if,
as of termination of the employment of the Executive, more than a majority of
the Common Stock of Group is then owned by the current shareholders of Group,
after termination of employment of the Executive as well as during employment
and shall be extended by a period of time equal to any period during which the
Executive shall be in breach of such obligations.


 

















 


6.2. Confidentiality. The Executive
covenants and agrees with the Company that he will not at any time, except in
performance of his obligations to the Company hereunder or with the prior
written consent of the Company, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with Group, the Company or any of their respective subsidiaries and
affiliates. The term “confidential information” includes information not
previously disclosed to the public or to the trade by the Company’s or Group’s
management, or otherwise in the public domain, with respect to the Company’s or
Group’s or any of their respective affiliates’ or subsidiaries’ products,
services, facilities, applications and methods, trade secrets and other
intellectual property, systems, procedures, manuals, confidential reports,
product or service price lists, customer lists, technical information,
financial information (including the revenues, costs or profits associated with
any of the Company’s or Group’s products), business plans, prospects or
opportunities.


 


6.3. Exclusive Property. The Executive
confirms that all confidential information is and shall remain the exclusive
property of Group and the Company. All business records, papers and documents
kept or made by the Executive relating to the business of Group, the Company or
their respective subsidiaries shall be and remain the property of Group and the
Company.


 


6.4. Injunctive Relief. Without
intending to limit the remedies available to Group and the Company, the
Executive acknowledges that a breach of any of the covenants contained in this Section 6
may result in material and irreparable injury to Group, the Company or
their respective affiliates or subsidiaries for which there is no adequate
remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat thereof,
Group and the Company shall be entitled to obtain a temporary restraining order
and/or a preliminary or permanent injunction restraining the Executive from
engaging in activities prohibited by this Section 6 or such other relief
as may be required specifically to enforce any of the covenants in this Section 6.
If for any reason a final decision of any court determines that the
restrictions under this Section 6 are not reasonable or that consideration
therefor is inadequate, such restrictions shall be interpreted, modified or
rewritten by such court to include as much of the duration and scope identified
in this Section 6 as will render such restrictions valid and enforceable.


 


7. GUARANTEES


 


7.1. Indemnification. Group, the
Company and each of their subsidiaries, jointly and severally, shall indemnify
the Executive and his spouse, heirs, estate, executors and administrators
(collectively, the “Indemnitees”) and hold such Indemnitees harmless
from and against, and pay and reimburse the Indemnitees for, any and all
demands, payments, claims, actions, losses, damages, liabilities, obligations,
fines, taxes, deficiencies, costs and expenses (including reasonable attorneys’
fees), whether or not resulting from third-party claims, including interest and
penalties with respect thereto, asserted against or incurred or sustained by an
Indemnitee in connection with or arising out of any personal guaranty or
undertaking by the Executive of any obligation of Group, the Company or any of
their subsidiaries (collectively a “Guaranty”).


 

















 


7.2. Future Subsidiaries. In the
event, Group, the Company or any of their subsidiaries acquires or forms a
subsidiary after the date hereof, Group and the Company shall cause such newly
acquired or formed subsidiary to execute and deliver a supplement to this
Amendment, which supplement shall provide that such newly acquired or formed
subsidiary will indemnify the Indemnitees in accordance with Section 7.1
hereof.


 


8. MISCELLANEOUS


 


8.1. Notices. All notices or
communications hereunder shall be in writing, addressed as follows:


 


To the Company or Group, to it at:


 


Atlantic Express Transportation Corp.


7 North Street


Staten Island, NY 10302


Attention: Corporate Secretary


 


with a copy to:


 


GSCP III Holdings (AE), LLC


c/o Greenwich Street Capital Partners, Inc.


12 E. 49th Street


Suite 3200


New York, New York  10017


Fax: (212) 884-6184


Attention: Matthew Kaufman


 


and:


 


To the Executive:


 


Nathan Schlenker


347 Horning Road


Palatine Bridge, NY 13428


Fax: 
(518) 673-5071


 


Any such notice or communication shall be
sent certified or registered mail, return receipt requested, or by facsimile,
addressed as above (or to such other address as such party may designate
in writing from time to time), and the actual date of receipt shall determine
the time at which notice was given.


 


8.2. Severability. If a court of
competent jurisdiction determines that any term or provision hereof is invalid
or unenforceable, (a) the remaining terms and provisions hereof shall be
unimpaired and (b) such court shall have the authority to replace such
invalid or


 

















 


unenforceable term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.


 


8.3. Assignment. This Agreement shall
inure to the benefit of the heirs and representatives of the Executive and the
assigns and successors of the Company, but neither this Agreement nor any
rights hereunder shall be assignable or otherwise subject to hypothecation by
the Executive. Each of Group and the Company may assign this Agreement
without prior written approval of the Executive upon the transfer of all or
substantially all of its business and/or assets (whether by purchase, merger,
consolidation or otherwise), provided that the successor to such business
and/or assets shall expressly assume and agree to perform this Agreement.


 


8.4. Entire Agreement; Amendment. This
Agreement represents the entire agreement of the parties with respect to the
subject matter hereof and shall supersede any and all previous contracts,
arrangements or understandings between or among Group, the Company and the
Executive, including the Prior Agreement. The Agreement may be amended at
any time by mutual written agreement of the parties hereto.


 


8.5. Withholding. The Company shall be
entitled to withhold, or cause to be withheld, from payment any amount of
withholding taxes required by law with respect to payments made to the
Executive in connection with his employment hereunder.


 


8.6. Governing Law. This Agreement
shall be construed, interpreted, and governed in accordance with the laws of
the State of New York without reference to principles of conflict of laws.


 


8.7. Survival. Section 3.4
(relating to benefits upon termination), Article 6 (relating to
noncompetition, nonsolicitation and confidentiality) and 8.6 (relating to
governing law) shall survive the termination hereof.


 


8.8. Headings. Headings to sections in
this Agreement are for the convenience of the parties only and are not intended
to be a part of or to affect the meaning or interpretation hereof.


 


8.9. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.


 


[signature page follows]


 

















 


IN WITNESS WHEREOF, the Company and Group
have caused this Agreement to be duly executed by their authorized
representatives and the Executive has hereunto set his hand, in each case
effective as of the day and year first above written.


 


	
   

  	
  ATLANTIC EXPRESS

  
	
   

  	
  TRANSPORTATION GROUP INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Domenic Gatto

  	
   

  
	
   

  	
   

  	
  Name: Domenic Gatto

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
  ATLANTIC EXPRESS

  
	
   

  	
  TRANSPORTATION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Domenic Gatto

  	
   

  
	
   

  	
   

  	
  Name: Domenic Gatto

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Nathan Schlenker

  	
   

  
	
   

  	
  Nathan Schlenker