EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into this 8th day of February, 1999 ("Effective
Date"), by and between XATA Corporation ("XATA" or "Company") and Xxxxxx X.
Xxxxxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed by XATA in the
position of President and Chief Executive Officer and is experienced in the
business of XATA; and
WHEREAS, the Employee is leaving the position of President and Chief
Executive Officer, but will continue as an employee of XATA to assist in the
transition to new management; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of XATA and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed by to assist management of XATA
and, in particular, such person or persons who may from time to time occupy the
role of President and Chief Executive Officer ("President/CEO") of XATA. The
Employee shall perform such executive duties (i.e. duties customarily associated
with the office of president or chief executive officer) as may be reasonably
requested by the Board of Directors of XATA (the "Board of Directors" or
"Board") and the President/CEO.
2. Base Compensation. XATA agrees to pay the Employee during the term
of this Agreement a salary (the "Salary"), payable at the times and in the
manner as XATA payroll generally, with each payment equal to the regular salary
payment amount received by Employee immediately prior to the execution of this
Agreement. Total salary paid under this Agreement shall be limited to $250,000.
No payment shall be due or payable by XATA for any period during which Employee
is in breach of this Agreement.
3. Prior Agreement. XATA and the Employee hereby agree that the payment
(the "Separation Payment") due Employee under his letter agreement with XATA
dated January 24, 1995 (the "Prior Agreement") in connection with the
termination of his employment as President/CEO of XATA shall be due and payable
in equal installments over a period of twenty (20) months at the times when
payroll is customarily paid to the employees of XATA, and that any amounts paid
as Salary under the terms of this Agreement shall offset and fully discharge an
equal then-payable amount of the Separation Payment. No payment shall be due or
payable by
XATA for any period during which Employee is in breach of this Agreement. This
Section shall survive termination of this Agreement, except as provided in
Section 10(a).
4. Other Benefits.
(a) Participation in Retirement and Medical Plans. The
Employee shall be entitled to participate in any plan of XATA relating
to compensation, profit sharing, or other retirement benefits and
medical coverage or reimbursement plans as XATA may adopt for the
benefit of its employees.
(b) Expenses. XATA shall reimburse Employee for all reasonable
out-of-pocket expenses which Employee shall incur in connection with
his service for XATA which are documented with XATA's policies as set
forth from time to time.
(c) Options. Employee's existing options under the XATA 1991
Long-Term Incentive and Stock Option Plan shall not be affected by
Employee's change in duties and shall continue in accordance with their
terms while this Agreement is in effect.
5. Term. The term of employment of Employee under this Agreement shall
commence on the Effective Date and shall be terminable upon notice, with or
without cause, by XATA; provided, however, that in no event shall the term of
this Agreement extend for a period of more than twenty (20) months.
6. Loyalty. The Employee shall devote such time and attention to the
performance of his employment under this Agreement as shall be reasonably
requested from time to time by the Board of Directors and President/CEO. During
the term of Employee's employment under this Agreement, the Employee shall not
engage in any business or activity which is detrimental to the business affairs
or interests of XATA; provided, however, that this is not intended to restrict
Employee in seeking, obtaining, and carrying out the duties associated with,
other employment with any other person except (a) CADEC Corporation, Xxxxx
Corporation, or Meritor (as to each, a "Named Competitor"), (b) any affiliate of
any Named Competitor, or (c) any person who acquires or succeeds to the business
of any Named Competitor.
7. Standards. [INTENTIONALLY OMITTED]
8. Vacation and Sick Leave. The Employee shall not accrue any vacation
leave or sick leave during the term of this Agreement. All paid vacation accrued
by Employee prior to the Effective Date which has not been used by Employee as
of the Effective Date shall be paid to Employee in cash not later than February
26, 1999.
9. Covenants of Employee.
(a) Competing Employment. [INTENTIONALLY OMITTED]
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(b) Non-Solicitation Agreement. [INTENTIONALLY OMITTED]
(c) Confidential Information. Employee acknowledges that
during the term of his employment he will have access to confidential
information of the Company, the Company's affiliates, and the Company's
customers, including without limitation, information about business
plans, costs, products, research and development, funding, alliances,
customers, profits, markets, key personnel, operational methods, other
business affairs and methods and other information not available to the
public or in the public domain (collectively, "Confidential
Information"). Employee covenants and agrees that, except as required
by his duties to the Company, Employee will keep secret all
Confidential Information and will not, directly or indirectly, disclose
or disseminate Confidential Information to any other person, nor shall
he make use of any Confidential Information for any purpose whatsoever
except as permitted by the Company. Such covenant shall apply during
the term of his employment hereunder and for a period of six (6) months
after termination or expiration of this Agreement; provided, however,
that with respect to Confidential Information which constitutes a
"trade secret" under Minnesota Statutes Chapter 325C, such covenant
shall apply during the term of his employment hereunder and at all
times thereafter. Employee will promptly upon termination of this
Agreement deliver to the Company all tangible materials and objects
containing Confidential Information (including all copies thereof,
whether prepared by Employee or others) which he may possess or have
under his control. The term "Confidential Information" shall not
include any information which Employee can demonstrate (i) to be
generally known in the industry or to the public other than through
breach of Employee's obligations hereunder or (ii) to have been
disclosed to Employee by a source which is not connected or related in
any way to his employment with the Company and which is not under any
obligation of confidentiality.
(d) Reasonableness of Covenants. Employee acknowledges and
agrees that the geographic scope and period of duration of the
restrictive covenants contained in this Section are fair and reasonable
and that the interests sought to be protected by the Company are
legitimate business interests entitled to be protected.
(e) Injunctive Relief; Attorneys' Fees. The parties agree that
the remedy of damages at law for the breach by Employee of any of the
covenants contained in this Section 9 is an inadequate remedy. In
recognition of the irreparable harm that a violation by Employee of any
of the covenants, agreements or obligations arising under this
Agreement would cause XATA, Employee agrees that in addition to any
other remedies or relief afforded by law, an injunction against an
actual or threatened violation or violations may be issued against him
and every other Person concerned thereby, it being the understanding of
the parties that both damages and an injunction shall be proper modes
of relief and are not to be considered alternative remedies. In the
event of any such an actual violation, Employee agrees to pay the
costs, expenses and reasonable attorneys' fees incurred by the Company
in pursuing any of its rights with respect to such violation, in
addition to the actual damages sustained by the Company as a result
thereof. The provisions of Sections 9(c), (d) and (e) shall survive
termination of this Agreement.
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(f) Compensation. [INTENTIONALLY OMITTED]
(g) [INTENTIONALLY OMITTED]
10. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be
binding upon any corporation or other successor of XATA which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of XATA;
provided, however, that in the event that this Agreement is to be
acquired by any such successor in interest of XATA, Employee, at his
option, given within ten (10) business days after notice by XATA of
such proposed event, may elect (i) to terminate this Agreement,
effective with the effective date of the succession in interest and
(ii) to receive all payments remaining under Section 3 of this
Agreement in one lump sum, payable not later than thirty (30) days
after the effective date of the succession in interest.
(b) Since XATA is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning
or delegating his rights or duties hereunder without first obtaining
the written consent of XATA.
11. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
12. Applicable Law. This Agreement shall be governed by all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Minnesota, except to the extent that Federal law shall be
deemed to apply.
13. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the American
Arbitration Association ("AAA") nearest to the home office of XATA, and judgment
upon the award rendered may be entered in any court having jurisdiction thereof,
except to the extent that the parties may otherwise reach a mutual settlement of
such issue. XATA shall incur the cost of all fees and expenses associated with
filing a request for arbitration with the AAA, whether such filing is made on
behalf of XATA or the Employee, and the costs and administrative fees associated
with employing the arbitrator and related administrative expenses assessed by
the AAA. If the parties cannot mutually agree on an arbitrator, each party shall
select an arbitrator and those two arbitrators shall select a third arbitrator
and the third arbitrator shall conduct the arbitration. Otherwise, each party
shall pay its own costs and expenses, including reasonable attorneys' fees,
arising from such dispute, proceedings
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or actions, notwithstanding the ultimate outcome thereof, upon delivery of a
final judgment or settlement of the dispute.
15. Entire Agreement. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto with respect to the
Separation Payment and the Prior Agreement, and shall supersede all prior
understandings in writing or otherwise between the parties as to such matters.
XATA CORPORATION
By:
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Its:
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Xxxxxx X. Xxxxxxx
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