Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into on this 1st day of July, 2000, by
and between NATIONS EXPRESS INC., a North Carolina corporation ("Employer"),
and XXXXX X. XXXXXX, an individual residing in Cornelius North Carolina
("Employee"). The purpose of this Agreement is to set forth the terms and
conditions upon which the Employer and the Employee have agreed to create an
employer-employee relationship.
ARTICLE I EMPLOYMENT OF EMPLOYEE
1.01 Employment. In consideration of a proposed Initial Public Offering of
the common stock of the Company, the Employer and Employee have each agreed to
the terms outlined in the following employment agreement. The Employee is
hereby employed as the President, and Chief Executive Officer of the Employer.
The Employee shall perform such duties commensurate with his position and
responsibilities as the Board of Directors of the Employer shall direct. All
services to be rendered by the Employee shall be performed to the best of his
ability and in furtherance of the welfare and development of the Employer. The
Employee shall work at the main office of the Employer and at such other place
or places as may be reasonably required from time to time to fulfill his
obligations hereunder.
1.02 Hours of Employment. The Employee shall work such hours as may be
necessary to properly conduct the duties and functions of the Employee
hereunder.
1.03 Fulfillment of Duties. The Employee agrees to devote such productive
time, ability, and attention to the business of the Employer during the term of
this Agreement as may be required for the efficient performance of his duties
set forth in Section 1.01 herein. The Employee shall not directly or indirectly
render any services of a business, commercial, or professional nature to any
individual, corporation, partnership, joint venture or other entity, if and to
the extent that such services are in conflict with Employee's duties to
Employer under this Agreement.
1.04 Nepotism Policy. Employee acknowledges that Employer is concerned about
the potential personnel problems and/or conflicts of interest that could
develop if employees with hiring responsibility hire family members and/or
relatives. Accordingly, Employee will not hire as an employee of Employer any
family member or relative of (i) Employee, (ii) any officer of Employer or
(iii) any member of the Board of Directors of Employer, unless approved in
advance by the Board of Directors Compensation Committee of Employer.
ARTICLE II TERM OF EMPLOYMENT
2.01 Basic Term. The term of the employment of the Employee pursuant to the
terms of this Agreement shall commence on the date initially set forth above
and shall continue until December 31, 2004. This Agreement may be terminated
earlier as herein provided in Section 6.01 of this Agreement.
2.02 Extended Term. On the fourth anniversary date of this contract, and on
or before the anniversary date of the contract each year thereafter, the term
of this contract will automatically extend by twelve months, unless the
Employer notifies the Employee in writing that the Company does not intend to
extend the contract beyond the next twelve month period.
ARTICLE III COMPENSATION
3.01 Basic Compensation. As compensation for services rendered under this
Agreement, the Employer shall pay to Employee an annual salary of $150,000
payable in accordance with the regular payroll practices of the Employer. The
Employee shall be entitled to an annual review by the Compensation Committee in
accordance with the Company's normal performance review practices.
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3.02 Executive Bonus Compensation. In addition to the basic compensation set
forth in Section 3.01 above, the Employee shall be entitled to participate in
the Executive Bonus Plan. Such bonus will be payable within sixty (60) days
after the audit report is formally issued regarding each applicable fiscal year
end commencing with the June 30, 2000, fiscal year end. Payment of the bonus
upon termination of Employee's employment is governed by the Compensation
Committee and Section 6.02(c).
3.03 n/a
3.04 Annual Review. The Employer agrees that it will review the basic
compensation (and the criteria therefor) for the Employee at the conclusion of
twelve months of employment, and not less than once each twelve months
thereafter.
3.05 Other Benefits. The Employer shall provide to the Employee, in addition
to the foregoing compensation, the following benefits:
(a) The Employee shall participate in the Company's executive auto
allowance. If the employee receives a auto allowance, the auto allowance
shall be applied by the Employee to the purchase, and maintenance
(including insurance) or lease of a car of the Employee's choice;
(b) The Employee shall participate in the Company's Executive Vacation
Plan, for which the Employee shall be entitled to paid vacation of not less
than three (3) weeks per calendar year.
(c) The Employer shall provide such other and further benefits to the
Employee as are generally provided to other Executive employees of the
Employer.
ARTICLE IV REIMBURSEMENT OF EMPLOYEE EXPENSES
Section 4.01 Business Expenses. The Employer shall reimburse the Employee
for normal and reasonable documented business expenses incurred in the
performance of his duties hereunder upon the presentation of vouchers or
receipts for such expenses, using Company approved expense reports.
ARTICLE V PROPERTY RIGHTS
5.01 Trade Secrets. The Employee during the term of employment under this
Agreement will have access to and develop knowledge regarding various trade
secrets, consisting of formulas, methods, processes, and compilations of
information, records, and specifications concerning customers, potential
customers, services, business methods, training methods, proprietary
information, computer programs, marketing strategies and other corporate data
which are owned by, or which will be developed on behalf of, the Employer and
which are regularly used in the operation of the business of the Employer (the
"Trade Secrets"). The Employee shall not divulge publish, disclose, or
otherwise reveal any of the aforesaid Trade Secrets, either directly or
indirectly, to any person, firm, corporation or any third party, nor use them
in any way, either during the term of this Agreement or at any time thereafter,
except as required in the course of his employment. All files, records,
documents, specifications, memoranda, notes and similar items relating to the
business of the Employer shall remain the exclusive property of the Employer.
5.02 Records. All files, records, documents, drawings, specifications,
equipment, and similar items relating to the business of the Employer
("Records"), whether prepared by the Employee or otherwise coming into his
possession, shall remain the exclusive property of the Employer. All such
Records shall immediately be placed in the possession of the Employer upon the
termination of this Agreement, or at any other time specified by the Employer.
The retention and use of duplicates in any form of such Records by the Employee
is prohibited after the termination of this Agreement, unless agreed to in
writing by a majority of the Board of Directors of the Employer.
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5.03 Restrictive Covenant.
(a) The Employee covenants and agrees that the Employee shall not enter
into or engage generally in direct competition with the Employer either as
an individual on his own or as a partner or joint venturer, or as an
employee, consultant or agent for any family member, relative, person,
firm, corporation or other third party, or as an officer, director,
shareholder or otherwise, for the period of two years after this contract
is terminated. Further, the Employee covenants and agrees not to contact,
on behalf of the Employee or any other person, any customer or potential
customer of the Employer, other than for a valid business purpose of the
Employer and for the benefit of the Employer for the period beginning with
the execution of this contract, and for a period of two years after this
contract is terminated. The term "potential customer" shall mean any person
or entity contacted by the Employee, the Employer, or any of its
affiliates, officers, directors, employees, shareholders or representatives
during the term of the Employee's employment for purposes of soliciting
their business.
(b) The covenant on the part of the Employee contained in Section
5.03(a) shall be independent and shall continue for its term in the event
and from the date this Agreement is breached or terminated by the Employee
or Employer. The covenants on the part of the Employee shall be construed
as agreements independent of any other provision of this Agreement, and the
existence of any claim or cause of action of the Employee against the
Employer, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Employer of such covenants.
The Employee recognizes that such covenants on the part of the Employee are
an important inducement to the Employer in executing this Agreement.
ARTICLE VI TERMINATION
6.01 Termination by Employer for Cause. This Agreement may be terminated by
the Employer for good cause upon ten (10) days written notice to Employee. Such
termination shall be without prejudice to any right or remedy to which the
Employer may be entitled either at law, in equity, or under this Agreement.
Without prejudice to the generality of the right to terminate for good cause,
each of the following contingencies will be good cause:
(a) Should the Employee by reason of injury or illness fail to perform
his duties as an employee under this Agreement for more than 180
consecutive days;
(b) Should the Employee, for reasons other than (i) vacation leave in
accordance with the Employer's policies existing from time to time and in
accordance with this Agreement, (ii) illness or (iii) injury, absent;
(c) Absent himself from his duties without the consent of the Board of
Directors of the Employer for more than ten (10) consecutive business days;
(d) Should the Employee be convicted of a felony or a crime involving
moral turpitude or a crime which, in the sole judgment of the Employer,
materially adversely affects the utility of the services of the Employee to
the Employer in its business;
(e) Should the Employee engage in any activity related to the business
of the Employer that would constitute a material conflict of interest with
the Employer without the consent of the Board of Directors of Employer,
(f) Should the Employee be grossly negligent in the performance of his
duties hereunder, or other-wise fail to comply with the material terms and
conditions of this Agreement, unless waived in writing by the Board of
Directors of Employer; or
(g) Should the Employee's conduct constitute material willful
misconduct; or
(h) The death of the Employee.
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Any decision to terminate this Agreement pursuant to this Section 6.01 shall
be made by the affirmative vote of a majority of the members of the Board of
Directors other than Employee if Employee is a member of the Board of Directors
at the time the vote is taken.
6.02 Effect of Termination on Compensation.
(a) In the event this agreement is terminated by the Employer for reasons other
than good cause, prior to the completion of the initial term of employment
specified herein, or any extensions of the agreement, the Employee shall be
entitled to the remainder of the unearned basic compensation as provided
for in this Agreement.
ARTICLE VII GENERAL PROVISIONS
7.01 Notices. Any notices to be given hereunder by either party to the other
may be effected either by hand delivery, in writing, with evidence of receipt
or by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the Employee at the addresses
latest appearing on the Employer's personnel records, but the Employee may
change his address by written notice in accordance with this paragraph. Mailed
notices to Employer shall be addressed to: Mr. The Company's Chief Financial
Officer at the office of the Employer. (which may be changed upon written
notification to Employee). Notices delivered personally shall be deemed
communicated as of the date of actual receipt and mailed notices shall be
deemed communicated as of the date three (3) days after mailing in accordance
herewith.
7.02 Inclusion of Entire Agreement Herein. This Agreement supersedes any and
all other agreements, either oral or in writing, between the parties hereto
with respect to the employment of the Employee by the Employer and contains all
of the covenants and agreements between the parties with respect to such
employment in any manner whatsoever.
7.03 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
7.04 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which such party may be
entitled.
7.05 Payment of Moneys Due Deceased Employee. If the Employee dies prior to
the expiration of the employment term, any moneys that may be due him from the
Employer under this Agreement as of the date of his death shall be paid to his
designated beneficiary, executors, administrators, heirs, personal
representative, successors, or assigns, as the case may be.
7.06 Amendment. This Agreement may be amended from time to time only by the
mutual consent in writing signed by both the Employee and the Employer.
7.07 Benefit and Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their respective heirs, executors,
administrators, successors, and permitted assigns and shall be read with all
changes of number and gender as may be required by the context, save and except
the agreement to employ is personal to the Employee.
7.08 Effect of Waiver. The failure of any party to seek redress for
violation of or to insist upon the performance of any provision of this
Agreement does not constitute a waiver of seeking redress if that violation
continues or occurs again.
7.09 Illegality; Invalidity. Every provision in this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the legality
or validity of the remainder of this Agreement, and such illegal or invalid
provision shall be modified to the extent necessary to make it legal, valid,
and enforceable.
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7.10 Rights and Remedies Cumulative. The rights and remedies provided in
this Agreement are cumulative and the use of any one right or remedy by a party
shall not preclude or waive its right to use any or all of the remedies. Said
right and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
7.11 Headings. Headings are included for ease of reference only and shall
not be considered in the interpretation or meaning of any provision of this
Agreement.
EXECUTED as of the date first written above.
EMPLOYER:
NATIONS EXPRESS INC.
By: XXXX X. XXXXX
Its: CHAIRMAN OF THE BOARD OF DIRECTORS
EMPLOYEE:
XXXXX X. XXXXXX
DATE:
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