EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of the 7th
day of September, 2004, between UTi Services, Inc., a California corporation
(the "Company"), and Xxxxx Xxxxxxxxxxx ("Employee").
WHEREAS, the Company and Employee entered into a certain Employment Agreement
(the "Prior Agreement") dated September 25, 2000 and the Prior Agreement
terminated on August 15, 2004; and
WHEREAS, since August 15, 2004 Employee has been employed as a special advisor
and the Company and Employee now desire to enter into this Agreement in order to
memorialize Employee's employment as a special advisor in accordance with the
terms set forth herein.
In consideration of the promises and covenants set forth below, the parties
hereto agree as follows:
1. Employment.
The Company hereby agrees to employ Employee, and Employee
hereby agrees to accept such employment with the Company, on
the terms and conditions set forth herein. Employee agrees to
act as a special advisor to UTi Worldwide Inc. (UTi
Worldwide") and the related group of companies (such group is
referred to herein as the UTi Group") without receiving
separate consideration for such services.
2. Term.
The term of employment of Employee as provided in this
Agreement commences on the date hereof and ends on August 31,
2006, unless sooner terminated as hereafter provided.
3. Position and Duties.
Employee shall perform his duties and obligations which shall
be determined jointly between the Company and the Employee
from time to time and he shall then perform such duties and
obligations faithfully and diligently and shall devote the
agreed upon time, attention and efforts to UTi Worldwide and
the UTi Group. Employee agrees not to work for any competitor
of UTi Group. Employee shall industriously perform Employee's
duties and coordinate the performance of such services and
duties with the Chief Executive Officer of the Company.
Employee shall adhere to the policies and procedures generally
applicable to employees of the Company and UTi Group.
4. Place of Performance.
In connection with Employee's employment by the Company and
except for required travel on Company business, Employee shall
be based at the Company's executive offices, or such other
location agreed to by Employee and the Company.
5. Compensation and Related Metrics.
(a) Salary. During the term of Employee's employment
hereunder, the Company shall pay to Employee a salary
of $125,000 per annum. Such salary shall be paid in
equal semi-monthly installments (or such shorter
intervals as the Company may elect and shall accrue
from day to day).
(b) Performance Bonus. During the term of Employee's
employment hereunder, Employee shall not be eligible
to participate in any bonus programs.
(c) Vacations. During the term of Employee's employment
hereunder, Employee shall not be entitled to accrue
or earn paid vacation days.
(d) Expenses. During the term of Employee's employment
hereunder, Employee shall be entitled to receive
reimbursement for reasonable out of pocket travel and
other expenses (excluding ordinary commuting
expenses) incurred by Employee in performing
Employee's services hereunder, provided that:
i. Such expenditure qualifies as a proper
business expenditure; and
ii. Employee furnishes adequate documentary
evidence for the substantiation of such
expenditures and Employee complies with
applicable policies with respect to expense
reimbursement.
(e) Medical Insurance and Other Benefits. During the term
of Employee's employment hereunder, Employee will be
entitled to participate in applicable medical, dental
and disability insurance plans, life insurance plans,
retirement and 401(k) plans and other employee
welfare and benefit plans or programs made available
to the Company's employees generally, in accordance
with the terms of such plans and programs as may be
in effect from time to time.
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6. Termination.
(a) Termination by the Company for "Cause."
(1) The Company may at any time terminate
Employee's employment hereunder, for
"Cause," pursuant to the provisions of this
Section 6(a). Employee shall be given notice
by the Company of its intention to terminate
Employee for "Cause."
For purposes of this Agreement, the Company
shall have "Cause" to terminate Employee's
employment hereunder upon (a) the breach by
Employee of any material provision of this
Agreement (and if such breach is susceptible
to cure by Employee, the failure to effect
such cure by Employee within thirty (30)
days after written notice of such breach is
given to Employee), (b) an act or acts of
dishonesty on the part of Employee which are
intended to result in Employee's substantial
personal enrichment at the expense of the
Company, UTi Worldwide or the UTi Group, or
(c) Employee engaging or participating in a
violation of law which results in a material
liability or penalty to the Company, UTi
Worldwide or the UTi Group.
(2) If Employee is terminated by the Company for
"Cause" pursuant to this Section 6(a), the
Company shall have no further obligation or
liability to Employee, except that Employee
shall be entitled to receive (i) the portion
of Employee's salary which has been earned
up to the Date of Termination and (ii)
reimbursement for business expenses properly
incurred up to the Date of Termination
(collectively, the "Minimum Payments").
(b) Death.
(1) Employee's employment hereunder shall
terminate automatically upon Employee's
death.
(2) If Employee's employment is terminated
because of Employee's death pursuant to this
Section 6(b), the Company shall have no
further obligation or liability to Employee,
except that Employee shall be entitled to
receive (i) the Minimum Payments, and (ii)
and life insurance proceeds Employee is
otherwise entitled to under any applicable
life insurance then in effect.
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(c) Disability.
(1) If Employee becomes disabled during
Employee's employment hereunder, Employee's
employment hereunder shall terminate on the
date of the determination of the disability
by the Board of Directors of the Company of
such disability. As used herein,
"disability" shall mean any condition that
qualifies as a disability under the
Company's long-term disability plan as in
effect on the date of determination or which
renders Employee incapable of performing
substantially all of his services hereunder
for one hundred twenty (120) days or more in
the aggregate during any calendar year, and
which at any time after such one hundred
twenty (120) days the Company's Board of
Directors shall determine continues to
render Employee incapable of performing his
services hereunder.
(2) If Employee's employment is terminated
because of Employee's disability pursuant to
this Section 6(c), Employee shall be
entitled to receive (i) the Minimum
Payments, and (ii) any benefits to which
Employee is entitled under the Company's
long-term disability plan as in effect on
the Date of Termination.
(d) Resignation by Employee.
(1) Employee shall be entitled to terminate
Employee's employment hereunder for any
reason, or no reason, at any time on thirty
(30) days prior written notice delivered by
Employee to the Company.
(2) If Employee's employment is terminated by
Employee pursuant to this Section 6(d), the
Company shall have no further obligation or
liability to Employee, except that Employee
shall be entitled to receive the Minimum
Payments.
7. Exclusivity of Payments.
Upon termination of Employee's employment hereunder, Employee
shall not be entitled to any severance payments or severance
benefits from the Company, UTi Worldwide or the UTi Group,
other than the payments and benefits explicitly provided in
Section 6, except for any benefits which may be due to
Employee in the normal course under any employee benefit plan
or program of the Company or UTi Worldwide which provides for
benefits after termination of employment in accordance with
the terms of such plan or program. Employee's right to receive
payments or benefits
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under this Agreement upon termination of employment will cease
if Employee breaches any provision of Sections 8 or 9 below.
8. Proprietary Information.
(a) Definition. Employee hereby acknowledges that
Employee possesses and may make use of, acquire,
create, develop or add certain confidential and/or
proprietary information regarding the Company, UTi
Worldwide and UTi Group and their businesses and
affiliates (whether in existence prior to, as of or
after the date hereof, collectively, "Proprietary
Information"), which Proprietary Information shall
include, without limitation, all of the following
materials and information (whether or not reduced to
writing and whether or not patentable or protected by
copyright): trade secrets, inventions, processes,
formulae, programs, technical data, "know-how",
procedures, manuals, confidential reports and
communications, marketing methods, product sales or
cost information, new product ideas or improvements,
new packaging ideas or improvements, research and
development programs, identities or lists of
suppliers, vendors or customers, financial
information and financial projections or any other
confidential or proprietary information relating to
the UTi Group and/or its business. The term
"Proprietary Information" does not include any
information that (i) at the time of disclosure is
generally available to and known by the public (other
than as a result of its disclosure by Employee), (ii)
becomes available to Employee on a lawful,
non-confidential basis from a person other than the
UTi Group or its representatives, provided that the
source of such information was not known by Employee
to be subject to an obligation of confidentiality to
the UTi Group.
(b) Nondisclosure. During the term of this Agreement and
thereafter, Employee will not, without the prior
express written consent of the Board of Directors of
UTi Worldwide, disclose or make any use of
Proprietary Information except as may be required in
the course of the performance of Employee's services
under this Agreement.
(c) Agreement Not to Solicit Employees and Customers. To
protect the Proprietary Information and trade secrets
of the UTi Group, Employee agrees, during the term of
this Agreement and for a period of two (2) years
after termination of this Agreement, not to, directly
or indirectly, either on Employee's own behalf or on
behalf of any other person or entity, solicit or
employ any person who is an employee of the UTi Group
or attempt to persuade any customer of the UTi Group
to cease to do business or to reduce the amount of
business which any customer of the UTi Group has
customarily done or contemplates doing with the UTi
Group.
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Employee agrees that the covenants contained in this
paragraph are reasonable and desirable.
9. Protection of Property.
All records, files, manuals, documents, specifications, lists
of customers, forms, materials, supplies, computer programs
and other materials furnished to the Employee by the UTi
Group, used on its behalf or generated or obtained during the
course of the performance of the Employee's services
hereunder, shall at all times remain the property of the
Company. Upon termination of Employee's employment with the
UTi Group, Employee shall immediately deliver to the UTi
Group, or its authorized representative, all such property,
including all copies, remaining in Employee's possession or
control.
10. Notice.
For purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when
personally delivered, or if sent by overnight, commercial air
courier service, o n the second business day after being
delivered to the air courier service, or if mailed, on the
fifth day after being sent by first class, certified, or
registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employee: At Employee's address as indicated on the
books and records of the company.
If to Company: At the Company's executive headquarters
(with a copy to UTi Worldwide Inc. at its
executive headquarters).
Or to such other address as any party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt thereof.
11. Entire Agreement.
This Agreement, together with the documents referenced herein,
contains the entire agreement of the parties hereto with
respect to the subject matter hereof. It supersedes any and
all other agreements, either oral or in writing, between the
parties here to with respect to the employment of Employee by
the Company. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, written,
oral or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise not
contained in this agreement shall be valid or binding.
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12. Amendment; Waiver; Governing Law.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is
agreed to in writing signed by Employee and by such officer of
the Company. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with
any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be
governed by the laws of jurisdiction where Employee is
employed by the Company.
13. Validity.
The invalidity or unenforceability of any provision or
provisions of the Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
14. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of
which together will constitute one and the same instrument.
15. Survivability.
The provisions in Sections 8, 9, 16 and 17 of this Agreement
shall survive any termination of this Agreement.
16. Specific Performance.
In the event of the breach by Executive of any of the
provisions of Sections 8 or 9, the Company and the UTi Group,
in addition to all other rights and remedies they may have,
may apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive or
other relief to the extent authorized by law in order to
enforce or prevent any violations of the provisions thereof.
17. Arbitration.
The parties hereto acknowledge that it is in their best
interests to facilitate the informal resolution of any
disputes arising out of this Agreement or otherwise by mutual
cooperation and without resorting to litigation. As a result,
if either party has a legally recognized claim or dispute
arising hereunder or otherwise, including but not limited to
any claim for breach of any contract or covenant (express or
implied), any dispute regarding Executive's termination of
employment from the Company, tort claims, claims for
harassment or discrimination (including, but not limited to,
race, sex, religion, national origin, age, handicap or
disability), claims for
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compensation or benefits (except where a benefit plan or
pension plan or insurance policy specifies a different claims
procedure) and claims for violation of public policy or, any
federal, state or other governmental law, statute, regulation
or ordinance (except for claims involving workers'
compensation benefits), and the parties are unable to reach
agreement among themselves within thirty (30) days, then the
parties agree to submit the dispute to JAMS for binding
arbitration in accordance with its then-current employment
rules and applicable law. If the parties are unable to agree
to an arbitrator, JAMS will provide the names of seven
potential arbitrators, giving each party the opportunity to
strike three names. The remaining arbitrator will serve as the
arbitration panel. The parties agree that the arbitration must
be initiated within the time period of the statute of
limitations applicable to the claim(s) if the claim(s) had
been filed in Court. Arbitration may be initiated by the
aggrieved party by sending written notice of an intent to
arbitrate by registered certified mail to all parties and to
JAMS. The notice must contain a description of the dispute,
the amount involved and the remedies sought. All fees and
expenses of the arbitration will be borne by the Company. Each
party will pay for the fees and expenses of its own attorneys,
experts, witnesses, and preparation and presentation of proofs
and post-hearing briefs, unless the party prevails on a claim
for which attorneys' fees are recoverable by statute, in which
case the arbitrator may award attorneys' fees and costs to the
prevailing party.
18. Withholding of Taxes; Tax Reporting.
The Company may withhold from any amounts payable under this
Agreement all such taxes, and may file with appropriate
governmental authorities all such information, returns or
other reports with respect to the tax consequence of any
amount payable under this Agreement, as may in its reasonable
judgment, be required by law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company" UTi Services Inc.,
a California corporation
By: /s/ Xxxxx XxxXxxxxxx
-------------------------------------
Name: Xxxxx XxxXxxxxxx
Title: Chief Executive Officer
"Employee" /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Special Advisor
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