EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into as of June 1, 2006 by and
between X.X.X. Transportation Services, Inc. ("XXX") and Xxxxx Xxxxxx
("EMPLOYEE"), and the parties therefore agree as follows:
Subject to the terms and conditions contained in this Agreement and during
the Term of this Agreement (as defined below), XXX hereby employs EMPLOYEE in
the position of "Chief Operations Officer," with such duties and
responsibilities as are commensurate with such office and may from time-to-time
be assigned to EMPLOYEE by PAM's Board of Directors.
EMPLOYEE hereby accepts such employment as a full time employee, and while
employed, shall devote his full business time, skills, energy and attention to
the business of XXX, shall perform his duties in a diligent, loyal, businesslike
and efficient manner, all for the sole purpose of enhancing the business of XXX,
and in a manner consistent with all XXX policies, resolutions and directives
from time to time stated or made by the Board of Directors. Moreover, EMPLOYEE
shall perform such services and duties as are consistent with EMPLOYEE's
position, are necessary or appropriate for the operation and management of XXX,
and as are normally expected of persons appointed to XXX executive positions in
the business in which EMPLOYER is engaged.
1. Term of Employment
The initial term of EMPLOYEE'S employment under this Agreement shall
commence per the schedule in Section 2 and shall expire per said schedule or
such earlier date as EMPLOYEE's employment relationship is terminated pursuant
to Section 10 (the "Initial Term"). The extended term of EMPLOYEE'S employment
under this Agreement shall commence at the beginning of the first one-year
extension elected by XXX pursuant to section 3 and end on the last day of the
last one-year extension period elected by XXX pursuant to Section 3 or such
earlier date as Employee's employment relationship is terminated pursuant to
Section 3 or such earlier date as Employee's employment relationship is
terminated pursuant to Section 10 (the Extended Term", and together with the
Initial Term, the "Term").
2. Compensation for Services
During the Initial Term, XXX shall pay to EMPLOYEE annual base salary
("Base Salary") as their Chief Operations Officer at the following rate:
Period Base Salary
------ -----------
June 1, 2006 - June 1, 2007 $300,000
June 1, 2007 - June 1, 2008 $310,000
June 1, 2008 - June 1, 2009 $335,000
June 1, 2010 - June 1, 2010 $355,000
Base Salary shall be payable in equal installments pursuant to PAM'S payroll
system in effect from time to time, less all applicable taxes required to be
withheld by XXX pursuant to federal, state or local law.
XXX may also pay to EMPLOYEE a bonus or other incentive compensation as
approved by the Board of Directors or Compensation and Stock Option Committee of
XXX from time to time. Any existing or past bonus plans will not be impacted by
this agreement.
3. Option to Extend.
XXX shall have the option to extend this Agreement for an additional one
(1) year. The EMPLOYEE's Base salary for the one-year option period shall be
$370,000 payable in equal installments pursuant to PAM's payroll system in
effect from time to time, less all applicable taxes required to be withheld by
XXX pursuant to federal, state or local law. XXX may elect to exercise this
extension option at any time at least 45 days prior to the beginning of the
one-year period.
4. Benefits
EMPLOYEE shall be entitled to fringe benefits provided by XXX for its
employees in the normal course of business.
5. Business Expenses
XXX shall reimburse EMPLOYEE for all reasonable and necessary business
expenses incurred by him in the performance of his duties hereunder with respect
to travel, entertainment and other business expenses, subject to PAM's business
expense policies in effect from time to time, including its procedures with
respect to the manner of incurring, reporting and documenting such expenses
2
6. Proprietary Information
a. EMPLOYEE shall forever hold in the strictest confidence and not disclose
to any person, firm, corporation or other entity any of PAM's Proprietary
Information (as defined below) or any of PAM's Records (as defined below) except
as such disclosure may be required in connection with EMPLOYEE's work for XXX
and as expressly authorized by PAM's Board of Directors in writing.
b. For the purposes of this Agreement, the term "Proprietary Information"
shall mean inter company publications, unpublished works, plans, policies,
computer and information systems, software and other information and knowledge
relating or pertaining to the products, services, sales or other business of XXX
or its successor, affiliates and customers in any way which is of a confidential
or proprietary nature, the prices it obtains or has obtained from the sale of
its services, its manner of operation, its plans, processes or other data,
contracts, information about contracts, contract forms, business applications,
costs, profits, tax information, marketing information, advertising methods,
customers, potential customers, brokers, potential brokers, employees, matters
of a technical nature (including inventions, computer programs, concepts,
developments, contributions, devices, discoveries, software and documentations,
secret processes or machines, including any improvements thereto and know-how
related thereto, and research projects, etc.), and other information not
generally available to the public, without regard to whether all of the
foregoing matters will be deemed confidential, material or important. Anything
to the contrary notwithstanding, the parties hereto stipulate that any and all
knowledge, data and information gathered by the EMPLOYEE through this Agreement,
his employment with XXX and the operation of the business of XXX is deemed
important, material or confidential, and gravely affects the effective and
successful conduct of the business of XXX and XXX 's good will; could not
without great expense and difficulty be obtained or duplicated by others who
have not been able to acquire such information by virtue of employment with XXX;
and that any breach of the terms of this Paragraph 6 shall be deemed a material
breach of this Agreement.
c. EMPLOYEE agrees that all creative work, including without limitation,
designs, drawings, specifications, techniques, models, processes and software
prepared or originated by EMPLOYEE during or within the scope of employment
whether or not subject to protection under the federal copyright or other law
constitutes work made for hire all rights to which are owned by XXX. Moreover,
EMPLOYEE hereby assigns to XXX all right, title and interest whether by way of
copyright, trade secret, patent or otherwise, and all such work whether or not
subject to protection by copyright or other law.
d. Upon termination of employment with XXX or at any other time requested
by XXX, EMPLOYEE shall immediately return to XXX and not retain any copies of,
any records, data, lists, plans, policies, publications, computer and
information systems, files, diagrams and documentation, data, papers, drawings,
memos, customer records, reports, correspondence, note books, service listing
and any other business record of any kind or nature (including without
limitation records in machine-readable or computer-readable forms) relating to
Proprietary Information ("Records").
3
7. Covenant Not To Compete
a. As a material part of the consideration for this Agreement, EMPLOYEE
agrees to the following covenants not to compete with XXX, and with all of its
affiliated companies listed in Exhibit A to this Agreement ("Affiliated
Companies") during his employment and for a one (1) year period following the
termination of EMPLOYEE's employment with XXX for any reason. EMPLOYEE agrees
not to work for any Truck Load Carrier or contact customers for a period of one
year. This restriction shall apply to all XXX Customers and Customers of
Affiliated Companies. EMPLOYEE further agrees not to solicit, retain, employ or
accept business from any XXX employees, agents or owner operators, or the
employees, agents or owner operators of any Affiliated Companies for a period of
one year. Anything contrary notwithstanding, this Paragraph 7 shall survive
after the termination or the earlier cancellation of this Agreement.
b. Both parties agree that the restrictions in this section are fair and
reasonable in all respects including the length of time that they shall remain
in effect and that PAM's employment of EMPLOYEE upon the terms and conditions of
this Agreement is fully sufficient consideration for EMPLOYEE's obligations
under this section.
c. If any provisions of this section are ever held by a Court to be
unreasonable, the parties agree that this section shall be enforced to the
extent it is deemed to be reasonable.
8. No Interference With Employment Relationships
EMPLOYEE agrees that he will not, either before or after termination of his
employment with XXX, encourage, solicit or otherwise attempt to persuade any
other employee of XXX to leave the employment of XXX, regardless of the fact
Employee recruited said individuals to XXX and knew them from past
relationships. In the event EMPLOYEE hires an employee of XXX, XXX shall be
compensated at a fee equal to 30% of the employee's first year's gross
compensation. This paragraph 8 also applies to employees of companies on Exhibit
A.
9. Equitable Relief And Remedies At Law
EMPLOYEE acknowledges that XXX would suffer unique and irreparable injury
in the event of a breach of the covenants contained in Sections 6, 7 and 8 of
this Agreement, which breach could not be adequately compensated by the payment
of damages alone. Accordingly in the event of any such breach by EMPLOYEE,
EMPLOYEE agrees that this Agreement may be enforced by a decree of specific
performance or an injunction without the necessity of posting a bond in addition
to any remedies available at law, including damages arising out of or relating
to a breach of those covenants, and that any remedy which XXX might have at law
would be inadequate by itself.
4
10. Termination of Agreement
a. Without limitation of any other remedy available to XXX, whether in law
or in equity, EMPLOYEE's employment relationship shall terminate immediately
without any further liability of XXX to EMPLOYEE, upon written notice from XXX
to EMPLOYEE, for just cause: conviction of a crime, moral turpitude, gross
negligence in the performance of duties, intentional failure to perform duties,
insubordination or dishonesty. In the event of EMPLOYEE's termination pursuant
to this Section 10(a), XXX shall have no obligation to pay Base Salary and
benefits beyond last day worked.
b. EMPLOYEE's employment relationship shall terminate immediately upon
death of EMPLOYEE.
c. EMPLOYEE agrees to submit to a medical examination at any time at XXX 's
request and expense. The medical examination will be related to EMPLOYEE's job
and consistent with the business necessity of XXX. This Agreement may be
terminated by XXX immediately upon written notice to EMPLOYEE if the examination
reveals that EMPLOYEE is unable to perform the essential functions of EMPLOYEE'S
job even with a reasonable accommodation. The Agreement may also be terminated
if, for a period of three (3) consecutive months, EMPLOYEE is unable to perform
the essential functions of EMPLOYEE's job even with a reasonable accommodation.
Upon such termination due to medical disability, EMPLOYEE's compensation shall
be continued for twelve (12) months from the date of disability.
d. Upon the determination by PAM's Board of Directors that the best
interests of XXX would be served, XXX shall have the further right to terminate
EMPLOYEE's employment relationship immediately or at any time, at its option
upon written notice to EMPLOYEE, without just cause. If EMPLOYEE is terminated
pursuant to this Section 10(d), EMPLOYEE shall be entitled to receive only Base
Salary and benefits and any earned but unpaid bonus for a period of twelve (12)
months following such termination. If this decision is driven by a new
President, the executive bonus will be paid in the normal course of the plan
until all monies due are paid. These payments shall not constitute employment
for purpose of Section 7.
e. Upon three months' prior written notice to XXX at any time, EMPLOYEE
shall have the right to terminate his employment relationship with XXX at his
option. Upon receipt of such notice XXX shall have the option to terminate
EMPLOYEE's employment relationship immediately upon written notice to EMPLOYEE.
In the event of termination pursuant to this Section 10(f), EMPLOYEE shall be
entitled to receive Base Salary and benefits only through the three month period
following EMPLOYEE's notice of termination. The time period on the covenant not
to compete shall commence at the end of the three (3) month period, and EMPLOYEE
shall also be bound by the covenant not to compete during the three (3) month
period. EMPLOYEE shall be liable for all costs and expenses incurred by XXX for
the failure to give three (3) months' notice.
5
f. Upon termination of this Agreement by XXX EMPLOYEE shall, without a
claim for compensation, provide XXX with written resignations from any and all
offices held by him in or at the request of XXX, and in the event of his failure
to do so, XXX is hereby irrevocably authorized to be, or designated as
EMPLOYEE's attorney in fact, to act in his name and in his behalf to execute
such resignations.
g. This Agreement shall terminate upon expiration of the Term unless
otherwise agreed to by the parties in writing prior thereto.
11. Exclusive Consulting Contract
Upon termination of EMPLOYEE's employment with XXX for any reason
whatsoever, XXX shall have the right at its option, to retain EMPLOYEE as an
independent consultant under an exclusive consulting contract, for the
performance by EMPLOYEE of such duties as may be reasonably assigned by XXX
consistent with the position of an independent consultant. The specific terms
regarding the actual services to be performed, length of service, restrictions
on competition and other contractual terms not set forth in this paragraph,
shall be mutually agreeable to EMPLOYEE and XXX. Services as an independent
contractor shall not constitute employment for purposes of Section 7.
12. No Restriction on Performance of Services Contemplated by Agreement
EMPLOYEE represents and warrants to XXX that: (i) he is under no
contractual or other restriction which would give a third party a legal right to
assert that he would not be legally permitted to perform the services
contemplated by this Agreement; and (ii) by entering into this Agreement he has
not breached, and by performing the services contemplated by this Agreement, he
would not breach, any Agreement or duty relating to proprietary information of
another person or entity.
13. Confidentiality of Agreement
EMPLOYEE shall not disclose any of the terms of this Agreement to any
person with the exception of his spouse or attorneys or as required by law,
provided the spouse or attorneys agree to be bound by this Section.
14. Severability
In case any one or more of the provisions hereof shall be held to be
invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. To the extent possible, there shall
be
6
deemed substituted such other provision as will most nearly accomplish the
intent of the parties, to the extent permitted by applicable law.
15. Entire Agreement
This Agreement embodies all the representations, warranties, covenants and
agreements of the parties in relation to the subject matter hereof, and no
representations, warranties, covenants, understandings, or agreements, unless
expressly set forth herein or in an instrument in writing signed by the party to
be bound thereby which makes reference to this Agreement, shall be considered
effective.
16. No Rights in Third Parties
Nothing herein expressed or implied is intended to, or shall be construed
to confer upon, or give to any person, firm or other entity other than the
parties hereto any rights or remedies under this Agreement, except as provided
in Section 17.
17. Assignment
XXX may assign its rights and delegate its responsibilities under this
Agreement to any affiliated company or to any corporation which acquires all or
substantially all of the operating assets of XXX by merger, consolidation,
dissolution, liquidation, combination, sale or transfer of assets or stock or
otherwise. EMPLOYEE shall not be entitled to assign his rights or delegate his
responsibilities under this Agreement to any person.
18. Payment to Estate
No person, firm or entity shall have any right to receive any payments
owing to EMPLOYEE hereunder, except that EMPLOYEE's estate shall be entitled to
receive a final payment of installment of Base Salary for services rendered to
XXX through date of death and reimbursement for any business expenses previously
incurred by EMPLOYEE for which he would have been entitled to reimbursement
hereunder.
19. Amendment
No modification or amendment of this Agreement shall be binding unless
executed in writing by each of the parties hereto.
20. Survival of Covenants
7
Without limitation of any other provisions of this Agreement, all
representations and warranties set forth in this Agreement and the covenants set
forth in Sections 6, 7, 8 and 13 shall survive the termination of this Agreement
for any reason for the maximum period permitted by law.
21. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws (and not the law of conflicts) of the State of Arkansas. The
parties agree that should any litigation arise out of, in connection with, or
relating to this Agreement, such litigation will be commenced in the Circuit
Court for Washington County Michigan or in the United States District provided
such court has subject matter jurisdiction. The parties specifically agree,
however, that either of these courts has personal jurisdiction and venue.
22. Notices.
Service of all notices under this Agreement must be given personally to the
party involved at the address set forth below or at such other address as such
party shall provide in writing from time to time.
COMPANY: Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
EMPLOYEE: Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
23. Paragraph Headings
The titles to the paragraphs of this Agreement are for convenience of the
parties only and shall not affect in any way the meaning or construction of any
Paragraph of this Agreement.
24. Non-Waiver.
No covenant or condition of this Agreement may be waived except by the
written consent of XXX Board of Directors. Forbearance or indulgence by XXX in
any regard whatsoever shall not constitute a waiver of the covenants or
conditions to be performed by EMPLOYEE to which the same may apply, and, until
complete performance by EMPLOYEE of said covenant or condition, XXX shall be
entitled to invoke any remedy available to XXX under this Agreement or by law or
in equity, despite said forbearance or indulgence.
8
25. Construction
Although this Agreement was drafted by XXX the parties agree that it
accurately reflects the intent and understanding of each party and should not be
construed against XXX if there is any dispute over the meaning or intent of any
provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
X.X.X. Transportation Services Inc.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ------------------------------------
(Witness) Its: Director - Compensation Committee
/s/ Xxxxxx X. Xxxxxx By: /s/ W. Xxxx Xxxxxx
------------------------------------- ------------------------------------
(Witness) EMPLOYEE
9
EXHIBIT A
1. Central Transport International, Inc.
2. Central Transport, Inc.
3. Logistics Insights Corporation, Inc.
4. X.X.X. Transportation Services, Inc.
5. Universal Truckload Services, Inc.
10
