EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 21st day of March,
2005 between Commodity Express Transportation, Inc., a Delaware corporation with
its principal place of business at 000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx XX 00000
(the "Company"), and W.A. Xxxxxx, who resides at 000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000 (the "Employee"), together the parties (the "Parties").
WHEREAS, the parties hereto wish to enter into an employment agreement to
employ the Employee as the President of the Company and to set forth certain
additional agreements between the Employee and the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the parties hereto agree as follows:
1. Employment Period. The Company will employ the Employee, and the
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Employee will serve the Company, under the terms of this Agreement for a term of
one (1) year (the "Initial Term") commencing as of the date first above written
(the "Commencement Date"), and such Initial Term shall be extended for two
additional one (1) year periods thereafter (each a "Renewal Term") unless
otherwise terminated by the Company or the Employee at least 60 days before the
expiration of the Initial Term or any Renewal TermThe Initial Term plus any
Renewal Term is referred to hereinafter as the "Term." Notwithstanding the
foregoing, the Employee's employment hereunder may be earlier terminated,
subject to Section 4 hereof.
2. Duties and Status. The Company hereby engages the Employee as the
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General Manager for the Company on the terms and conditions set forth in this
Agreement. During the Term, the Employee shall exercise such authority, perform
such duties and functions and discharge such responsibilities as are reasonably
associated with the President position. The Employee shall report directly to a
designee of the Board of Directors of the Company and shall perform his duties
at the direction of the Company's Board of Directors. The Employee's duties
shall include, but are not limited to, overseeing the daily operations of the
Company, marketing, sales, managing customer service, dealing with vendors and
suppliers, building alliances and partnerships, and directing other employees as
necessary. The Employee shall also act as, and perform the duties of, President
of Commodity Express Brokerage ("CEB"). During the Term, the Employee shall
devote his full business time, skill and efforts to the business of the Company,
except as provided below. However, nothing shall prohibit the Employee from
engaging in charitable and civic activities and managing his personal passive
investments, provided that such passive investments are not in a company which
competes in a business similar to that of the Company's business.
(a) Without limiting the generality of the foregoing, the Employee
covenants to perform the employment duties called for hereby in good faith,
devoting substantially all business time, energies and abilities thereto
and will not engage in any other business or commercial activities for any
person or entity without the prior written consent of the Company. The
Company hereby acknowledges and consents to Employee's devoting time and
services associated with work for TPS Logistics, Inc., Xxxxxx Logistics
Consulting and Commodity Express Transportation, Incorporated of South
Carolina during the Term of this Agreement.
(b) The Employee shall not take any action which would in any way
adversely affect the reputation, standing or prospects of the Company or
its parent or affiliated companies, including Power2Ship, Inc. and
Power2Ship Holdings, Inc. (as defined below) or which would cause the
Company to be in violation of applicable laws.
3. Compensation; Benefits and Expenses.
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(a) Salary. During the Term, the Company shall pay to the Employee, as
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compensation for the performance of his duties and obligations under this
Agreement, a base salary at the rate of $150,000.00 per annum ("Base
Salary"), payable in arrears not less frequently than twice monthly in
accordance with the normal payroll practices of the Company.
(b) Bonus. In addition to the Base Salary payable to the Employee
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hereunder, the Employee also shall be entitled to receive a fee equal to
.25% of the gross revenue Employee is responsible for acquiring for the
Company derived from Amcor PET Packaging, Incorporated ("Amcor") for
freight hauled other than to and from Amcor's Blythewood, SC, facility
("the Bonus"). Such bonus shall be paid to Employee quarterly, which
frequency may be adjusted at a future date upon mutual agreement of the
Parties.
(c) Other Benefits. During the Term, the Employee shall be entitled to
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participate in all of the employee benefit plans, programs and arrangements
of the Company in effect during the Term which are generally available to
employees of the Company (including, without limitation, group life
insurance and group medical insurance plans), subject to and on a basis
consistent with the terms, conditions and overall administration of such
plans, programs and arrangements.
(d) Expenses. In addition to any amounts payable to the Employee
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pursuant to this Section 3, the Company shall reimburse the Employee upon
production of accounts and vouchers or other reasonable evidence of payment
by the Employee, all in accordance with the Company's regular procedures in
effect from time to time, all reasonable, ordinary and necessary expenses,
including the expenses for a business, as shall have been be incurred by
him in the performance of his duties hereunder.
(e) Withholding of Taxes. All payments required to be made by the
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Company to the Employee under this Agreement shall be subject to the
withholding of such amounts, if any, relating to tax, excise tax and other
payroll deductions as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation.
(f) Vacation. The Employee shall be entitled to two (2) weeks paid
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vacation annually, to be taken at such time(s) as shall not, in the
reasonable judgment of the Company's Chief Executive Officer, interfere
with the fulfillment of the Employee's duties under this Agreement. The
Employee shall be entitled to as many holidays, sick days and personal days
in accordance with the Company's policies in effect from time to time.
(g) Automobile Allowance. The Employee shall be entitled to receive an
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automobile allowance in an amount of $600.00 per month.
4. Termination of Employment.
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(a) Termination for Cause. The Company may terminate this Agreement
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and its obligations to the Employee hereunder at any time for "cause",
which shall mean: (i) any willful and continued breach by the Employee of
the performance of his duties pursuant to this Agreement or of the written
policies of the Company, (ii) any material breach by the Employee of this
Agreement, (iii) the continued failure by the Employee to devote a
substantial amount of his working time to the affairs of the Company and
CEB or (iv) the active engagement by the Employee in any business, other
than those specified in section 2(a) of this Agreement, which interferes
with the performance of his duties hereunder, provided that in any such
case the Employee has not cured such failure within ten (10) days after the
receipt by the Employee of written notice thereof from the Company
specifying with reasonable particularity such alleged failure.
In addition, the following shall also constitute "Cause" hereunder for
which the Company may terminate this Agreement without any cure period: (i)
the violation by the Employee of any of the provisions of Section 6
hereafter, (ii) the commission by the Employee of an act of fraud or theft
against the Company, CEB or any of its affiliates or subsidiaries, or the
Employee's willful misfeasance or willful malfeasance in the performance of
his duties to the Company or CEB, or (iii) the conviction of the Employee
of (or the plea by the Employee of nolo contenderes to) any criminal act.
(b) Termination for Good Reason. The Employee shall have the right at
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any time to terminate his employment with the Company for good reason. For
purposes of this Agreement and subject to the Company's opportunity to cure
any of the following, within ten (10) days after the Employee's written
notice of any such occurrence, the Employee shall have "good reason" to
terminate his employment hereunder if such termination shall be the result
of a breach by the Company of the compensation and benefits provisions set
forth in Section 3 hereof.
(c) Termination Upon Death or Disability. This Agreement and the
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Employee's employment hereunder shall be terminated by the death of the
Employee. This Agreement and the Employee's employment hereunder may be
terminated by the Company if the Employee shall be rendered incapable of
performing his duties to the Company by reason of any medically determined
physical or mental impairment for a period of either (i) sixty (60)
consecutive days from the first date of the Employee's absence due to the
disability or (ii) ninety (90) days during any twelve-month period (a
"Disability"). During such period of disability, the Company shall continue
to pay to the Employee the compensation set forth in Section 3 hereof;
provided, however, that to the extent that the Employee receives payments
pursuant to any disability insurance policy, the Company may deduct the
amounts received by the Employee pursuant to that policy from the
compensation payable to him. If this Agreement is terminated by reason of
Disability of the Employee, the Company shall give 30 days advance written
notice to that effect to the Employee.
(d) Deterioration or Discontinuance of Business: In the event that the
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Company discontinues operating its business, this Agreement shall terminate
as of the last day of the month on which it ceases operation with the same
force and effect as if such last day of the month were originally set as
the termination date hereof; provided, however, that a reorganization or
merger of the Company shall not be deemed a termination of its business.
5. Consequences of Termination.
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(a) Without Cause or for Good Reason. In the event of a termination of
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the Employee's employment during the Term by the Company other than for
"cause" (as provided for in Section 4(a) hereof) or by the Employee for
"good reason" (as provided for in Section 4(b) hereof) the Company shall
pay the Employee and provide him with the following:
(i) Severance. The Company shall continue to pay to the Employee,
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after the termination of this Agreement, on the regular dates for
payment of Base Salary, the Employee's Base Salary for a period of
time (the "Severance Period") equal to the remainder of the Initial
Term of this Agreement, provided that the Company, in its sole
discretion may pay such total amount in one (1) lump sum payment upon
the termination of this Agreement.
(ii) Earned but Unpaid Amounts. Upon termination, the Company
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shall pay to the Employee any previously earned but unpaid salary
through the Employee's final date of employment with the Company.
(b) Other Termination of Employment. In the event that the Employee's
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employment with the Company is terminated during the Term by the Company
for "cause" (as provided for in Section 4(a) hereof), by the Employee other
than for "good reason" (as provided for in Section 4(b) hereof) or as a
result of the Employee's death or Disability (as provided for in Section
4(c) hereof), (i) the Company shall pay the Employee (or his legal
representative) any earned but unpaid salary amounts through the Employee's
final date of employment with the Company, and (ii) in the case of any such
termination, the Company shall have no further obligations to the Employee.
(c) Withholding of Taxes. All payments required to be made by the
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Company to the Employee under this Section 5 shall be subject to the same
withholding requirements as provided in subsection 3(e) hereof.
(d) No Other Obligations. The benefits payable to the Employee under
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this Agreement are not in lieu of any benefits payable under any employee
benefit plan, program or arrangement of the Company, except as provided
specifically herein, and upon termination the Employee will receive such
benefits or payments, if any, as he may be entitled to receive pursuant to
the terms of such plans, programs and arrangements. Except for the
obligations of the Company provided by the foregoing and this Section 5,
the Company shall have no further obligations to Employee upon his
termination of employment.
(e) Other Agreements. Termination by Employee other than for good
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reason within the Initial Term may constitute a breach under the agreements
between the Company and other parties with whom Employee is associated,
specifically, without limitation, those enumerated in Section 2(a) of this
Agreement, otherwise termination of this Agreement for any reason shall, in
and of itself, have no effect on other agreements between the Company and
other parties with whom Employee is associated, specifically, without
limitation, those enumerated in Section 2(a) of this Agreement.
6. Restrictive Covenants.
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(a) Restrictions On The Employee: During the period commencing on the
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date hereof and ending two (2) years after the termination of the
Employee's employment by the Company for any reason, the Employee shall not
directly or indirectly induce or attempt to induce any of the employees of
the Company to leave the employ of Company.
(b) Covenant Not To Compete: During the period commencing on the date
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hereof, and ending two (2) years after the termination of the Employee's
employment for any reason, the Employee shall not, except as a passive
investor in publicly held companies, engage in, or own or control any
interest in, or act as principal, director, officer or employee of, or
consultant to, any firm or corporation which is in competition with the
Company or any subsidiary or affiliate of the Company. Company acknowledges
that Employee may continue serving in those companies specified in Section
2(a) of this Agreement.
(c) Covenant not to Disparage. The Employee hereby irrevocably
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covenants and agrees that during the Term of this Agreement and after its
termination, he will refrain from making any remarks that could be
construed by anyone, under any circumstances, as disparaging, directly or
indirectly, specifically, through innuendo or by inference, whether or not
true, about the Company, its constituent members, or their officers,
directors, stockholders, employees, agent or affiliates, whether related to
the business of the Company, to other business or financial matters or to
personal matters.
(d) Proprietary Information: For purposes of this Agreement,
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"proprietary information" shall mean any proprietary information relating
to the business of the Company or any parent, subsidiary or affiliate of
the Company that has not previously been publicly released by duly
authorized representatives of the Company and shall include (but shall not
be limited to) information encompassed in all proposals, marketing and
sales plans, financial information, costs, pricing information, computer
programs (including without limitation source code, object code, algorithms
and models), customer information, customer lists, and all methods,
concepts, know-how or ideas in or reasonably related to the business of the
Company or any subsidiary or affiliate of the Company. The Employee agrees
to regard and preserve as confidential all proprietary information, whether
he has such information in his memory or in writing or other tangible or
intangible form. The Employee will not, without written authority from the
Company to do so, directly or indirectly, use for his benefit or purposes,
nor disclose to others, either during the Term of his employment hereunder
or thereafter, any proprietary information except as required by the
conditions of his employment hereunder or pursuant to court order (in which
case Employee shall give the Company prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. The Employee agrees
not to remove from the premises of the Company or any parent, subsidiary or
affiliate of the Company, except as an employee of the Company in pursuit
of the business of the Company or any of its subsidiaries, affiliates, or
except as specifically permitted in writing by the Company, any document or
object containing or reflecting any proprietary information. The Employee
recognizes that all such documents and objects, whether developed by him or
by someone else, are the exclusive property of the Company. Proprietary
information shall not include information which is presently in the public
domain or which comes into the public domain through no fault of the
Employee or which is disclosed to the Employee by a third party lawfully in
possession of such information with a right to disclose same.
(e) All proprietary information and all of the Employee's interest in
trade secrets, trademarks, computer programs, customer information,
customer lists, employee lists, products, procedure, copyrights, patents
and developments hereafter to the end of the period of employment hereunder
developed by the Employee as a result of, or in connection with, his
employment hereunder, shall belong to the Company; and without further
compensation, but at the Company's expense, forthwith upon request of the
Company, Employee shall execute any and all such assignments and other
documents and take any and all such other action as Company may reasonably
request in order to vest in Company all the Employee's right, title and
interest in and to all of the aforesaid items, free and clear of liens,
charges and encumbrances.
(f) Other Agreements. The Employee hereby represents that he is not
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bound by the terms of any agreement with any previous employer, other than
the Company's affiliates, or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in
the course of his employment with the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any
other party. The Employee further represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and
will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or in trust
prior to his employment with the Company.
(g) Limitation. The Employee expressly agrees that the covenants set
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forth in this Section 6 of this Agreement are being given to the Company in
connection with the employment of the Employee by Company and that such
covenants are intended to protect Company against the competition by the
Employee, within the terms stated, to the fullest extent deemed reasonable
and permitted in law and equity. In the event that the foregoing
limitations upon the conduct of the Employee are beyond those permitted by
law, such limitations, both as to time and geographical area, shall be, and
be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
(g) For purposes of Section 6 hereof, the term "Company" shall also
include CEB.
7. Injunctive Relief. The parties agree that it is impossible to
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determine the monetary damages that will accrue as a result of any breach of the
provisions of Section 6 of this Agreement. Therefore, if the Company institutes
any action or proceeding in equity to enforce any of the provisions of Section 6
of this Agreement, the Employee hereby waives the claim or defense therein that
such party has an adequate remedy at law, and such person shall not urge in such
equitable action or proceeding the claim or defense that such remedy at law
exists.
8. Notice. Any notice, request, demand or other communication required
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or permitted hereunder shall be deemed to be properly given when personally
served in writing or by courier, telegraphed, telexed or by facsimile
transmission or sent by express, registered or certified mail, postage prepaid,
addressed to the other party at the address provided above. Either party may,
by written notice to the other, change the address to which notices to such
party are to be delivered or mailed in accordance with this section.
9. Arbitration. Except as specifically provided herein, any dispute or
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controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a single arbitrator mutually
selected by the parties, in the State of Florida, in accordance with the rules
of the American Arbitration Association then in effect. If the parties are
unable to agree on a single arbitrator, each party shall select an arbitrator
and the two arbitrators selected by the parties shall select a third arbitrator.
If three arbitrators are selected, they shall act by majority vote. Judgment
may be entered on the arbitrator's award in any court having jurisdiction.
10. Waiver of Breach. Any waiver of any breach of this Agreement shall
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not be construed to be a continuing waiver or consent to any subsequent breach
on the part either of the Employee or of the Company.
11. Non-Assignment; Successors. Neither party hereto may assign his or
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its rights or delegate his or its duties under this Agreement without the prior
written consent of the other party; provided, however, that (i) this Agreement
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shall inure to the benefit of and be binding upon the successors and assigns of
the Company upon any sale of all or substantially all of the Company's assets,
or upon any merger, consolidation or reorganization of the Company with or into
any other corporation, all as though such successors and assigns of the Company
and their respective successors and assigns were the Company; and (ii) this
Agreement shall inure to the benefit of and be binding upon the heirs, assigns
or designees of the Employee to the extent of any payments due to them
hereunder. As used in this Agreement, the term "Company" shall be deemed to
refer to any such successor or assign of the Company referred to in the
preceding sentence.
12. Severability. If any term or provision of this Agreement is
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determined to be illegal, unenforceable, or invalid in whole or in part for any
reason, such illegal, unenforceable, or invalid provisions or part(s) thereof
shall be stricken from this Agreement and such provision shall not affect the
legality, enforceability, or validity of the remainder of this section, then the
stricken provision shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is similar in tenor to the stricken
provision as is legally possible.
13. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Execution by exchange of
facsimile transmission shall be deemed legally sufficient to bind the signatory;
however, the Parties shall, for aesthetic purposes, prepare a fully executed
original version of this Agreement, which shall be the document filed with the
Securities and Exchange Commission.
14. Governing Law. This Agreement shall be construed, interpreted and
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enforced in accordance with the laws of the State of Florida, without giving
effect to the choice of law principles thereof. If it becomes necessary for any
party to institute legal action to enforce the terms and conditions of this
Agreement, and such legal action results in a final judgment in favor of such
party ("Prevailing Party"), then the party or parties against whom said final
judgment is obtained shall reimburse the Prevailing Party for all direct,
indirect or incidental expenses incurred, including, but not limited to, all
attorney's fees, costs and other expenses incurred throughout all negotiations,
arbitrations or appeals undertaken in order to enforce the Prevailing Party's
rights hereunder.
15. Entire Agreement. This Agreement constitutes the entire agreement
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by the Company and the Employee with respect to the subject matter hereof and
except as specifically provided herein, supersedes any and all prior agreements
or understandings between the Employee and the Company with respect to the
subject matter hereof, whether written or oral. This Agreement may be amended
or modified only by a written instrument executed by the Employee and the
Company.
16. Captions. The captions in this Agreement are for convenience and
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reference only and in no way define, describe, extend or limit the scope of this
Agreement or the intent of any provisions hereof.
17. Number and Gender. All pronouns and any variations thereof shall
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be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the Party or Parties, or their personal representatives,
successors and assigns may require.
18. Further Assurances. The Parties hereby agree to do, execute,
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acknowledge and deliver or cause to be done, executed or acknowledged or
delivered and to perform all such acts and deliver all such deeds, assignments,
transfers, conveyances, powers of attorney, assurances, recipes, records and
other documents, as may, from time to time, be required herein to effect the
intent and purposes of this Agreement.
19. Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
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AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION THEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
/S/ W.A. Xxxxxx
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W.A. Xxxxxx
COMMODITY EXPRESS TRANSPORTATION, INC.,
A DELAWARE CORPORATION
By: /S/ W.A. Xxxxxx
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Xxxxxxx Xxxxx, Chief Executive Officer
