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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
BY AND BETWEEN
PROFESSIONAL TRANSPORTATION GROUP, LTD.
AND
XXXXXXX X. XXXXXX
DATED: APRIL 1, 1997
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
PROFESSIONAL TRANSPORTATION GROUP, LTD., a Georgia corporation (the "Company"),
and XXXXXXX X. XXXXXX, an individual resident of Georgia (the "Executive"), as
of this 1st day of April 1997.
The Company presently employs the Executive as its Vice
President/Sales. The Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company is substantial. The Board desires to provide for the continued
employment of the Executive and to make certain changes in the Executive's
employment arrangements which the Board has determined will reinforce and
encourage the continued dedication of the Executive to the Company and will
promote the best interests of the Company and its shareholders. The Executive
is willing to continue to serve the Company on the terms and conditions herein
provided.
This Agreement will supersede in its entirety any prior understanding
of the parties, whether written or oral. Certain terms used in this Agreement
are defined in Section 16.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree (as of the Effective Date) that:
1. Employment. The Company shall continue to employ the
Executive, and the Executive shall continue to serve the Company, as Vice
President/Sales upon the terms and conditions set forth herein. The Executive
shall have such authority and responsibilities as are consistent with his
position and which may be set forth in the Bylaws or assigned by the Board or
the Chief Executive Officer from time to time. The Executive shall devote his
full business time, attention, skill and efforts to the performance of his
duties hereunder, except during periods of illness or periods of vacation and
leaves of absence consistent with Company policy. The Executive may devote
reasonable periods of time to serve as a director or advisor to other
organizations, to perform charitable and other community activities, and to
manage his personal investments; provided, however, that such activities do not
materially interfere with the performance of his duties hereunder and are not
in conflict or competitive with, or adverse to, the interests of the Company.
2. Term. Unless earlier terminated as provided herein,
the Executive's employment under this Agreement shall be for a continuing term
(the "Term") of three years, which shall be extended automatically (without
further action of the Company or the Executive) each day for an additional day
so that the remaining term shall continue to be three years; provided, however,
that either party may at any time, by written notice to the other, fix the Term
to a finite term of three years, without further automatic extension,
commencing with the date of such notice. Notwithstanding the foregoing, the
Term of employment hereunder will end on the date that the Executive attains
the age of 65.
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3. Compensation and Benefits.
a. The Company shall pay the Executive a salary at a
rate of not less than $88,650 per annum in accordance with the salary payment
practices of the Company. The Board (or an appropriate committee of the Board)
shall review the Executive's salary at least annually and may increase the
Executive's base salary if it determines in its sole discretion that an
increase is appropriate.
b. The Executive shall participate in a management
incentive program and shall be eligible to receive annual payments of a bonus
in an amount determined by the Compensation Committee based upon achievement of
targeted levels of performance and such other criteria as the Compensation
Committee shall establish from time to time pursuant to that program. In
addition, the Compensation Committee shall annually consider the Executive's
performance and determine if any additional bonus is appropriate.
c. The Executive shall participate in the Plan and be
eligible for the grant of stock options, restricted stock and other awards
thereunder.
d. The Executive shall continue to participate in all
retirement, welfare, deferred compensation, life and health insurance
(including health insurance for Executive's spouse and his dependents), and
other benefit plans or programs of the Company now or hereafter applicable to
the Executive or applicable generally to employees of the Company or to a class
of employees that includes senior executives of the Company; provided, however,
that during any period during the Term that the Executive is subject to a
Disability, and during the 180-day period of physical or mental infirmity
leading up to the Executive's Disability, the amount of the Executive's
compensation provided under this Section 3 shall be reduced by the sum of the
amounts, if any, paid to the Executive for the same period under any disability
benefit or pension plan of the Company or any of its subsidiaries.
e. The Company shall provide to the Executive an
automobile owned or leased by the Company of a make and model appropriate to
the Executive's status (in the reasonable opinion of the Executive) or, in lieu
thereof, shall provide the Executive with an allowance not to exceed $700.00
per month to partially cover the cost of the business use of an automobile
owned or leased by the Executive.
f. The Company shall continue to reimburse the Executive
for travel, seminar, and other expenses related to the Executive's duties which
are incurred and accounted for in accordance with the historic practices of the
Company.
4. Termination.
a. The Executive's employment under this Agreement may
be terminated prior to the end of the Term only as follows:
(i) upon the death of the Executive;
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(ii) by the Company due to the Disability of the
Executive upon delivery of a Notice of
Termination to the Executive;
(iii) by the Company for Cause upon delivery of a
Notice of Termination to the Executive; and
(iv) by the Executive for any reason upon delivery
of a Notice of Termination to the Company
within a 90-day period beginning on the 30th
day after any occurrence of a Change in
Control or within a 90-day period beginning
on the one year anniversary of the occurrence
of a Change in Control.
b. If the Executive's employment with the Company shall
be terminated during the Term (i) by reason of the Executive's death, or (ii)
by the Company for Disability or Cause, the Company shall pay to the Executive
(or in the case of his death, the Executive's estate) within 15 days after the
Termination Date, a lump sum cash payment equal to (i) the Accrued
Compensation, (ii) one-half of the amount provided for in Section 3(a) for the
year in which the termination takes place and (iii) if such termination is
other than by the Company for Cause, the Pro Rata Bonus.
c. If the Executive's employment with the Company shall
be terminated by the Company in violation of this Agreement or by the Executive
for any reason after a Change in Control, in addition to other rights and
remedies available in law or equity, the Executive shall be entitled to the
following:
(i) the Company shall pay the Executive in cash
within 15 days of the Termination Date an
amount equal to all Accrued Compensation and
the Pro Rata Bonus;
(ii) the Company shall pay to the Executive in
cash at the end of each of the 36 consecutive
30-day periods following the Termination Date
an amount equal to one- twelfth of the sum of
the Base Amount and the Bonus Amount.
(iii) for the period from the Termination Date
through the date that Executive attains the
age of 65 (the "Continuation Period"), the
Company shall at its expense continue on
behalf of the Executive and his dependents
and beneficiaries the life insurance,
disability, medical, dental and
hospitalization benefits provided (x) to the
Executive at any time during the 90-day
period prior to the Change in Control or at
any time thereafter or (y) to other similarly
situated executives who continue in the
employ of the Company during the Continuation
Period. The coverage and benefits (including
deductibles and costs) provided in this
Section 4(c)(iii) during the Continuation
Period shall be no less favorable to the
Executive and his dependents and
beneficiaries than the most
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favorable of such coverages and benefits
during any of the periods referred to in
clauses (x) and (y) above. The Company's
obligation hereunder with respect to the
foregoing benefits shall be limited to the
extent that the Executive obtains any such
benefits pursuant to a subsequent
employer's benefit plans, in which case the
Company may reduce the coverage of any
benefits it is required to provide the
Executive hereunder as long as the
aggregate coverages and benefits of the
combined benefit plans is no less favorable
to the Executive than the coverages and
benefits required to be provided hereunder.
This subsection (iii) shall not be
interpreted so as to limit any benefits to
which the Executive or his dependents or
beneficiaries may be entitled under any of
the Company's employee benefit plans,
programs or practices following the
Executive's termination of employment,
including without limitation, retiree
medical and life insurance benefits; and
(iv) the restrictions on any outstanding incentive
awards (including stock options) granted to
the Executive under the Plan or under any
other incentive plan or arrangement shall
lapse and such incentive award shall become
100% vested, all stock options granted to the
Executive shall become immediately
exercisable and shall become 100% vested.
d. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise, and no such payment shall be offset or reduced by the
amount of any compensation or benefits provided to the Executive in any
subsequent employment except as provided in Section 4(c)(iii).
e. In the event that any payment or benefit (within the
meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the "Code")) to the Executive or for his benefit paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, his employment with the
Company or a change in ownership or effective control of the Company or of a
substantial portion of its assets (a "Payment" or "Payments"), would be subject
to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive will be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest
or penalties, other than interest and penalties imposed by reason of the
Executive's failure to file timely a tax return or pay taxes shown due on his
return, imposed with respect to such taxes and the Excise Tax), including any
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
f. The severance pay and benefits provided for in this
Section 4 shall be in lieu of any other severance or termination pay to which
the Executive may be entitled under any
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Company severance or termination plan, program, practice or arrangement. The
Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit plans and other
applicable programs, policies and practices then in effect.
g. In the event that the Executive's employment
hereunder is terminated for any reason, the Executive shall, and does hereby,
tender his resignation as a director of the Company and its affiliates
effective as of the date of termination.
5. Trade Secrets, Non-Competition, Non-Solicitation, and
Related Matters.
a. The Executive shall not, at any time, either during
the Term of his employment or after the Termination Date, use or disclose any
Trade Secrets of the Company, except in fulfillment of his duties as the
Executive during his employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form.
b. The Executive agrees to maintain in strict confidence
and, except as necessary to perform his duties for the Company, not to use or
disclose any Confidential Business Information for so long as the pertinent
data or information remains Confidential Business Information.
c. Upon termination of employment, the Executive shall
leave with the Company all business records relating to the Company and its
affiliates including, without limitation, all contracts, calendars, and other
materials or business records, its business or customers, including all
physical, electronic, and computer copies thereof, whether or not the Executive
prepared such materials or records himself. Upon such termination, the
Executive shall retain no copies of any such materials, provided, however, the
Executive may remove and retain all personal items and materials.
d. The Executive may disclose Trade Secrets or
Confidential Business Information pursuant to any order or legal process
requiring him (in his legal counsel's reasonable opinion) to do so; provided,
however, that the Executive shall first have notified the Company of the
request or order to so disclose the Trade Secrets or Confidential Business
Information in sufficient time to allow the Company to seek an appropriate
protective order.
e. If the Executive is terminated for Cause or if the
Executive resigns without Adequate Justification, then for a period of one year
following the date of termination, the Executive shall not (without the prior
written consent of the Company) compete with the Company or any of its
affiliates in any way, including, but not limited to, (i) serving as an officer
of, director of, employee of, or consultant to, (ii) directly or indirectly,
forming, or (iii) directly or indirectly, acquiring more than a 5% investment
in, a Competing Business in the Territory.
f. If the Executive is terminated for Cause or if the
Executive resigns without Adequate Justification, then for a period of one year
following the date of termination, the
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Executive shall not (except on behalf of or with the prior written consent of
the Company) either directly or indirectly, on the Executive's own behalf or in
the service or on behalf of others, (i) solicit, divert, or appropriate to or
for a Competing Business, or (ii) attempt to solicit, divert, or appropriate to
or for a Competing Business, any person or entity that was a customer or
prospective customer of the Company or any of its affiliates on the date of
termination and is located in the Territory.
g. If the Executive is terminated for Cause or if the
Executive resigns without Adequate Justification, then for a period of one year
following the date of termination, the Executive will not, either directly or
indirectly, on the Executive's own behalf or in the service or on behalf of
others, (i) solicit, divert, or hire away, or (ii) attempt to solicit, divert,
or hire away, to any business located in the Territory, any employee of or
consultant to the Company or any of its affiliates engaged or experienced in
the Business, regardless of whether the employee or consultant is full-time or
temporary, the employment or engagement is pursuant to written agreement, or
the employment is for a determined period or is at will.
h. The Executive acknowledges and agrees that great loss
and irreparable damage would be suffered by the Company if the Executive should
breach or violate any of the terms or provisions of the covenants and
agreements set forth in this Section 5. The Executive further acknowledges and
agrees that each of these covenants and agreements is reasonably necessary to
protect and preserve the interests of the Company. The parties agree that
money damages for any breach of clauses (a) through (g) of this Section 5 will
be insufficient to compensate for any breaches thereof, and that the Executive
or any of the Executive's affiliates, as the case may be, will, to the extent
permitted by law, waive in any proceeding initiated to enforce such provisions
any claim or defense that an adequate remedy at law exists. The existence of
any claim, demand, action, or cause of action against the Company, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of any of the covenants or agreements in this
Agreement; provided, however, that nothing in this Agreement shall be deemed to
deny the Executive the right to defend against this enforcement on the basis
that the Company has no right to its enforcement under the terms of this
Agreement.
i. The Executive acknowledges and agrees that: (i) the
covenants and agreements contained in clauses (a) through (g) of this Section 5
are the essence of this Agreement; (ii) that the Executive has received good,
adequate and valuable consideration for each of these covenants; (iii) each of
these covenants is reasonable and necessary to protect and preserve the
interests and properties of the Company; (iv) the Company is and will be
engaged in and throughout the Territory in the Business; (v) a Competing
Business could be engaged in from any place in the Territory; and (vi) the
Company has a legitimate business interest in restricting the Executive's
activities throughout the Territory. The Executive also acknowledges and
agrees that: (i) irreparable loss and damage will be suffered by the Company
should the Executive breach any of these covenants and agreements; (ii) each of
these covenants and agreements in clauses (a) through (g) of this Section 5 is
separate, distinct and severable not only from the other covenants and
agreements but also from the remaining provisions of this Agreement; and (iii)
the unenforceability of any covenants or agreements shall not affect the
validity or enforceability of any of the other covenants or agreements or any
other provision or
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provisions of this Agreement. The Executive acknowledges and agrees that if
any of the provisions of clauses (a) through (g) of this Section 5 shall ever
be deemed to exceed the time, activity, or geographic limitations permitted by
applicable law, then such provisions shall be and hereby are reformed to the
maximum time, activity, or geographical limitations permitted by applicable
law.
j. The Executive and the Company hereby agree that they
will negotiate in good faith to amend this Agreement from time to time to
modify the terms of this Section 5, the definition of the term "Territory," and
the definition of the term "Business," to reflect changes in the Company's
business and affairs so that the scope of the limitations placed on the
Executive's activities by this Section 5 accomplishes the parties' intent in
relation to the then current facts and circumstances. Any such amendment shall
be effective only when completed in writing and signed by the Executive and the
Company.
6. Successors; Binding Agreement.
a. This Agreement shall be binding upon and shall inure
to the benefit of the Company, its Successors and Assigns and the Company shall
require any Successors and Assigns to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession or assignment had taken place.
b. Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of
descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
7. Fees and Expenses. The Company shall pay all legal
fees and related expenses (including but not limited to the costs of experts,
accountants and counsel) incurred by the Executive as they become due as a
result of (a) the termination of the Executive's employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment) and (b) the Executive seeking to obtain or enforce
any right or benefit provided by this Agreement; provided, however, that the
circumstances set forth in clauses (a) and (b) above occurred on or after a
Change in Control.
8. Notice. For the purposes of this Agreement, notices
and all other communications provided for in the Agreement (including the
Notice of Termination) shall be in writing and shall be deemed to have been
duly given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses last given by
each party to the other; provided, however, that all notices to the Company
shall be directed to the attention of the Board with a copy to the Secretary of
the Company. All notices and communications shall be deemed to have been
received on the date of delivery thereof.
9. Settlement of Claims. The Company's obligation to
make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be
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affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Executive or others. The Company may, however, withhold from any
benefits payable under this Agreement all federal, state, city, or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
10. Modification and Waiver. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by the Executive
and the Company. No waiver by any 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 or
subsequent time.
11. Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Georgia
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in State of Georgia.
12. 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.
13. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
agreements, if any, understandings and arrangements, oral or written, between
the parties hereto with respect to the subject matter hereof.
14. Headings. The headings of Sections herein are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
15. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
16. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
a. "Accrued Compensation" shall mean an amount which
shall include all amounts earned or accrued through the Termination Date but
not paid as of the Termination Date including (i) base salary, (ii)
reimbursement for reasonable and necessary expenses incurred by the Executive
on behalf of the Company during the period ending on the Termination Date, and
(iii) bonuses and incentive compensation (other than the Pro Rata Bonus).
b. "Adequate Justification" shall mean the occurrence
after a Change in Control of any of the following events or conditions: (i) a
material failure of the Company to
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comply with the terms of this Agreement; (ii) any relocation of the Executive
outside the metropolitan area where the Company's principal executive office is
located that is not approved by members of the Incumbent Board (as such term is
defined under Section 16(i)(ii)); or (iii) other than as provided for herein,
the removal of the Executive from the position of President and Chief Operating
Officer or any other substantial diminution in the Executive's authority or the
Executive's responsibilities that is not approved by members of the Incumbent
Board.
c. "Base Amount" shall mean the greater of the
Executive's annual base salary (i) at the rate in effect on the Termination
Date or (ii) at the highest rate in effect at any time during the 90-day period
prior to the Change in Control, and shall include all amounts of his base
salary that are deferred under the qualified and non- qualified employee
benefit plans of the Company or any other agreement or arrangement.
d. "Board" shall have the meaning set forth in the
recitals.
e. "Bonus Amount" shall mean the greater of (i) the most
recent annual bonus paid or payable to the Executive, or, if greater, the
annual bonus paid or payable for the full fiscal year ended prior to the fiscal
year during which a Change in Control occurred or (ii) the average of the
annual bonuses paid or payable during the three full fiscal years ended prior
to the Termination Date or, if greater, the three full fiscal years ended prior
to the Change in Control (or, in each case, such lesser period for which annual
bonuses were paid or payable to the Executive).
f. "Business" shall mean the providing of ground
transportation and logistic services for the air freight industry throughout
the U.S., and any other related business which the Company or any of its
affiliates is engaged in as of the date of termination of employment.
g. "Bylaws" shall mean the Amended and Restated Bylaws
of the Company, as amended, supplemented or otherwise modified from time to
time.
h. The termination of the Executive's employment shall
be for "Cause" if it is the result of:
(i) any act that (A) constitutes, on the part of
the Executive, fraud, dishonesty, or gross
malfeasance of duty, or conduct grossly
inappropriate to the Executive's office, and
(B) is demonstrably likely to lead to
material injury to the Company or resulted or
was intended to result in direct or indirect
gain to or personal enrichment of the
Executive; provided, however, that such
conduct shall not constitute Cause:
(A) unless (1) there shall have been
delivered to the Executive a written
notice setting forth with
specificity the reasons that the
Board believes the Executive's
conduct constitutes the criteria set
forth in clause (i), (2) the
Executive shall have been provided
the opportunity, if such behavior is
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susceptible to cure, to cure the
specific inappropriate behavior
within 30 days following written
notice, and (3) after such 30-day
period, the Board of Directors
determines that the behavior has not
been cured, and (4) the termination
is evidenced by a resolution adopted
in good faith by two-thirds of the
members of the Board (other than
the Executive); or
(B) if such conduct (1) was believed by
the Executive in good faith to have
been in or not opposed to the
interests of the Company, and (2)
was not intended to and did not
result in the direct or indirect
gain to or personal enrichment of
the Executive; or
(ii) the conviction (from which no appeal may be
or is timely taken) of the Executive of a
felony; or
(iii) the failure of the Executive to perform his
duties hereunder in a manner satisfactory to
the Board of Directors, as recommended by the
Chief Executive Officer and as determined by
the Board of Directors in its sole
discretion; provided, however, that the
Executive shall have 60 days to cure such
failure after receiving notice from the
Company. The Company shall be obligated to
provide only one notice to the Executive
pursuant to this Section 16(h)(iii).
Thereafter, the Company may terminate the
Executive, without the Executive having a
right to cure, if the Executive fails to
perform his duties in a manner satisfactory
to the Board of Directors, as recommended by
the Chief Executive Officer and as determined
by the Board of Directors in its sole
discretion.
i. A "Change in Control" shall mean the occurrence
during the Term of any of the following events after the Initial Public
Offering:
(i) An acquisition (other than directly from the
Company) of any voting securities of the
Company (the "Voting Securities") by any
"Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "1934
Act")) immediately after which such Person
has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the
0000 Xxx) of 20% or more of the combined
voting power of the Company's then
outstanding Voting Securities; provided,
however, that in determining whether a Change
in Control has occurred, Voting Securities
which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would
cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (1)
an employee
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benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or
(y) any corporation or other Person of
which a majority of its voting power or its
equity securities or equity interest is
owned directly or indirectly by the Company
(a "Subsidiary"), (2) the Company or any
Subsidiary, or (3) any Person in connection
with a "Non-Control Transaction" (as
hereinafter defined);
(ii) The individuals who, as of the date of the
Initial Public Offering, are members of the
Board (the "Incumbent Board") cease for any
reason to constitute at least two-thirds of
the Board; provided, however, that if the
election, or nomination for election by the
Company's shareholders, of any new director
was approved by a vote of at least two-thirds
of the Incumbent Board, such new director
shall, for purposes of this Agreement, be
considered as a member of the Incumbent
Board; provided, further, however, that no
individual shall be considered a member of
the Incumbent Board if such individual
initially assumed office as a result of
either an actual or threatened "Election
Contest" (as described in Rule 14a-11
promulgated under the 0000 Xxx) or other
actual or threatened solicitation of proxies
or consents by or on behalf of a Person other
than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid
or settle any Election Contest or Proxy
Contest; or
(iii) Approval by shareholders of the Company of:
(A) A merger, consolidation or reorganization
involving the Company, unless
(1) the stockholders of the Company,
immediately before such merger,
consolidation or reorganization,
own, directly or indirectly,
immediately following such merger,
consolidation or reorganization,
at least two-thirds of the
combined voting power of the
outstanding voting securities of
the corporation resulting from
such merger or consolidation or
reorganization (the "Surviving
Corporation") in substantially the
same proportion as their ownership
of the Voting Securities
immediately before such merger,
consolidation or reorganization,
and
(2) the individuals who were members
of the Incumbent Board immediately
prior to the execution of the
agreement providing for such
merger, consolidation or
reorganization constitute at least
two-thirds of the
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members of the board of
directors of the Surviving
Corporation.
(A transaction described in clauses
(1) and (2) shall herein be referred
to as a "Non-Control Transaction").
(B) A complete liquidation or
dissolution of the Company; or
(C) An agreement for the sale or other
disposition of all or substantially
all of the assets of the Company to
any Person (other than a transfer to
a Subsidiary).
(iv) Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's
employment is terminated prior to a Change in
Control and the Executive reasonably
demonstrates that such termination (A) was at
the request of a third party who has
indicated an intention or taken steps
reasonably calculated to effect a Change in
Control and who effectuates a Change in
Control (a "Third Party") or (B) otherwise
occurred in connection with, or in
anticipation of, a Change in Control which
actually occurs, then for all purposes of
this Agreement, the date of a Change in
Control with respect to the Executive shall
mean the date immediately prior to the date
of such termination of the Executive's
employment.
j. "Compensation Committee" shall mean the compensation
committee of the Board.
k. "Competing Business" shall mean any business that, in
whole or in part, is the same or substantially the same as the Business.
l. "Confidential Business Information" shall mean any
non-public information of a competitively sensitive or personal nature, other
than Trade Secrets, acquired by the Executive, directly or indirectly, in
connection with the Executive's employment (including his employment with the
Company prior to the date of this Agreement), including (without limitation)
oral and written information concerning the Company or its affiliates relating
to financial position and results of operations (revenues, margins, assets, net
income, etc.), annual and long-range business plans, marketing plans and
methods, account invoices, oral or written customer information, and personnel
information. Confidential Business Information also includes information
recorded in manuals, memoranda, projections, minutes, plans, computer programs,
and records, whether or not legended or otherwise identified by the Company and
its affiliates as Confidential Business Information, as well as information
which is the subject of meetings and discussions and not so recorded; provided,
however, that Confidential Business Information shall not include information
that is generally available to the public, other than as a result of
disclosure, directly or indirectly, by the Executive, or was available to the
Executive on a non-confidential basis prior to its disclosure to the Executive.
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m. "Continuation Period" shall have the meaning ascribed
to it in Section 4(c)(iii).
n. "Disability" shall mean a physical or mental
infirmity which impairs the Executive's ability to substantially perform his
duties with the Company for a period of 180 consecutive days, as determined by
an independent physician selected with the approval of both the Company and the
Executive.
o. "Effective Date" shall mean April 1, 1997.
p. "Initial Public Offering" shall mean the closing of
the first public offering of the Company's common stock registered under the
Securities Act of 1933 in which aggregate proceeds to the Company, net of all
underwriting discounts and commissions and other expenses of issuance and
distribution as stated in the prospectus relating to such offering, are equal
to at least four million dollars ($4,000,000).
q. "Notice of Termination" shall mean a written notice
of termination from the Company or the Executive which specifies an effective
date of termination, indicates the specific termination provision in this
Agreement relied upon, and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
r. "Plan" shall mean the 1996 Professional
Transportation Group, Ltd. Stock Option Plan adopted by the Board on February
16, 1996.
s. "Pro Rata Bonus" shall mean an amount equal to the
Bonus Amount multiplied by a fraction the numerator of which is the number of
days in the fiscal year through the Termination Date and the denominator of
which is 365.
t. "Successors and Assigns" shall mean a corporation or
other entity acquiring all or substantially all the assets and business of the
Company (including this Agreement), whether by operation of law or otherwise.
u. "Termination Date" shall mean, in the case of the
Executive's death, his date of death, and in all other cases, the date
specified in the Notice of Termination.
v. "Territory" shall mean the United States.
w. "Trade Secrets" shall mean any information, including
but not limited to technical or non- technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, information on customers, or a
list of actual or potential customers or suppliers, which: (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy, or (ii) is
otherwise defined as a "trade secret" under applicable law.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed and sealed this Agreement, effective
as of the date first above written.
PROFESSIONAL TRANSPORTATION
GROUP LTD.
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
Title: VP Title: CEO
(CORPORATE SEAL)
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
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