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Exhibit 99.1
AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT
This Amended Employment and Stock Option Agreement (this "Agreement") is
entered into as of July 22, 1996, between Polar Express Corporation, a Delaware
corporation (the "Company"), Aasche Transportation Services, Inc., a Delaware
corporation (the "Parent"), and Xxxx Xxxxxx (the "Executive") ("Parent" and
"Company" hereinafter referred to as "Aasche").
WITNESSETH THAT:
WHEREAS, Company, Parent, and Executive have a binding Employment and
Stock Option Agreement dated December 21, 1995; and
WHEREAS, the Company has informed Executive it wishes to restructure, thus
eliminating the Executive's position; and
WHEREAS, Company, Parent and Executive agree that the previous Employment
and Stock Option Agreement is a binding contract requiring Company to pay
compensation thereunder; and
WHEREAS, the parties wish to amend the Employment and Stock Option
Agreement to reduce compensation and eliminate any required duties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby covenanted and agreed by the parties as follows:
1. Duties: The Executive shall provide such services and perform such
duties as he deems necessary. Any duties or services provided shall be at the
times and places determined solely by the Executive. Company shall have no
rights to require the Executive to perform any duties. The parties agree that
Executive is no longer an officer
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of Company or Parent. Moreover, Executive has no authority to act on
behalf of Aasche, and he shall not take any actions which could bind the
Company.
2. Compensation, Severance and Benefits:
(a) The Executive shall be compensated as an employee from execution of
this agreement until August 30, 1996, at an annual salary of $100,000 payable
in weekly installments.
(b) From and after August 30, 1996, until December 31, 1996, the
Executive shall receive an annual salary of $53,400.00 payable in weekly
installments.
(c) From and after January 1, 1997, until August 25, 1999, the
Executive shall receive severance pay of $59,900.00 annually payable in weekly
installments. After December 31, 1996, the Executive shall no longer be an
employee of Company.
(d) The Company will pay the entire cost of its normal medical
insurance to Executive and his family until the earlier of March 1, 1998 or
until the executive is employed by another employer who offers insurance to
executive as part of his compensation package.
(e) Company shall continue to make monthly payments on Employee's
vehicle until April of 1997, when such vehicle will be paid in full. The
Company shall continue to provide at its sole cost insurance on such vehicle
with the same deductibles and coverage currently in place until June 1, 1997.
(f) It is understood that Executive has in his possession computer
hardware and software which is at the Executive's home and a lap top computer
with printer and software which is used by the Executive at the office. Some
of the hardware and/or software on both systems were purchased by the Company;
however, it will be the sole property of Executive. The Executive agrees to
copy all data relating to Company which is contained on the computers and
provide Company a copy of such data.
(g) The parties understand and agree that Executive shall remain an
employee of Company for all purposes including purposes of Company's profit
sharing and other pension plans through December 31, 1996. The parties
understand and agree that beginning January 1, 1997, Executive shall no longer
be an employee of Company for such purposes.
3. Stock Option: All existing Options granted to Executive prior to
the date of this Agreement including, but not limited to, Options granted under
Aasche
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Transportation Services, Inc. 1995 Incentive Stock Option Plan or the
Polar Express Corporation 1994 Stock Option Plan are hereby terminated. Parent
hereby grants to the Executive the right an option (the "Option") to purchase
60,000 shares of Common Stock (the "Shares") on the terms and conditions set
forth in this paragraph.
(a) The Shares subject to this Option shall become exercisable in whole
on July 22, 1996, and the deadline for exercising the Option shall be August
25, 1999.
(b) The Executive shall exercise the Option by delivery to Parent of a
duly executed copy of the purchase from attached hereto as Exhibit "A". The
Option price (as hereinafter defined) shall be paid by full payment in cash.
(c) The Option price shall be the closing price on the date of the
execution of this agreement subject to adjustment provisions described below,
provided; however, that in the case Parent should at any time subdivide the
outstanding shares of common stock or shall issue a stock dividend on its
outstanding common stock, the Option price in effect immediately prior to such
subdivision or the issuance of such dividend should be proportionately
decreased and in case Parent shall at any time combine the outstanding shares
of common stock, the Option price in effect immediately prior to such
combination shall be proportionately increased effective at the close of
business on the date of such subdivision, dividend, combination, as the case
may be. Notwithstanding the foregoing, in the event the closing price on any
of December 21, 1996, December 21, 1997, or December 21, 1998 (the "Relevant
Date") of the Parent's Common Stock on the Nasdaq Stock Market shall be less
than the Option Price, the Option Price for the Shares underlying the
unexercised options, shall be adjusted to the closing price of the Parent's
Common Stock on such Relevant Date.
(d) The number of Shares shall be 60,000; provided, however, that in
case the Parent should at any time subdivide the outstanding shares of Common
Stock, or shall issue a stock dividend on its outstanding Common Stock, the
number of Shares subject to the Option immediately prior to such subdivision or
the issuance of such dividend shall be proportionately increased, and in case
the Parent shall at any time combine the outstanding shares of Common Stock,
the number of Shares subject to the Option immediately prior to such
combination shall be proportionately decreased, effective at the close of
business on the date of such subdivision, dividend, or combination, as the case
may be.
(e) Within ten business days after the exercise of the Option, the
Parent shall cause to be issued in the name of and delivered to the Executive a
certificate or certificates for the Shares and the Executive shall deliver
payment of the Option Price in the form described in (b) above. The Parent
covenants that (A) all Shares issued and
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delivered upon the due exercise of the Option by the Executive shall,
upon such issuance and delivery, be fully paid and nonassessable, and (B) the
Parent shall agree at all times to reserve and hold available a sufficient
number of shares of its authorized but unissued Common Stock to provide for
delivery of the Shares upon the exercise of the Option.
(f) Parent agrees that such shares shall be registered and freely
transferable on the public markets by December 15, 1996. Parent shall pay all
costs and expenses of such registration.
(g) Parent and Employee agree that options granted herein do not have a
readily ascertainable fair market value at the time they were granted as
defined by Section 83 of the Internal Revenue Code. Although both parties
agree to act consistently with such representation, neither party shall be
liable to the other in the event it is determined such options did have a
readily ascertainable fair market value at the time they were granted.
4. Pinnacle Membership: Company agrees to pay no more than the sum
of Two Thousand One Hundred Dollars for a membership at Pinnacle County Club
which will allow Executive to play the golf course. Any amount over Two
Thousand One Hundred Dollars shall be paid by Executive.
5. Security: All payments hereunder shall be secured by an
irrevocable letter of credit expiring August 25, 1999, in the sum of One
Hundred Fifty Thousand Dollars ($150,000.00). Said irrevocable letter of
credit shall provide that the issuing bank shall pay amounts up to One Hundred
Fifty Thousand Dollars ($150,000.00) upon presentation of a draft by Executive.
The form of the letter of credit and drafts required by the lending institution
must be acceptable to Executive with such acceptance not to be unreasonably
withheld. It is agreed that Aasche may reduce the letter of credit from time
to time so long as the letter of credit is sufficient to pay all consideration
remaining unpaid to Executive pursuant to this Agreement. Prior to such
reduction, Company must first
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obtain Executive's written approval; however, Executive should not
withhold such approval without good reason.
In the event that Company defaults on an obligation otherwise allowing the
Executive to draw on the letter of credit, the Executive agrees to provide
Aasche notice of such default or failure to pay. Aasche shall have ten days
from receipt of the notice of default to cure the default. If Aasche fails to
cure such default, Executive may draw on the line of credit. Any such draw
shall be equal to all consideration remaining unpaid to Executive for the
entire remaining term of the Agreement. The term "all consideration" shall
include, and be limited to, payments required pursuant to paragraph 2(a), 2(b),
2(c), 2(d) and 2(e).
6. Binding Effect: This Agreement shall be binding upon, and inure
to the benefit of, the successors and assigns of the parties. Nothing in this
Agreement, expressed or implied, is intended to confer upon any person or
entity other than the parties hereto or their respective successors and
assigns, any rights or benefits under or by reason of this Agreement. This
Agreement shall not be assignable by either party hereto without the prior
written consent of the other.
7. Integration Clause: This Agreement represents and contains the
entire and only agreement and understanding among the parties with respect to
its subject matter and supersedes any and all other prior and contemporaneous
oral and written agreements, understandings, representations, inducements,
promises, warranties, and conditions among the parties.
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8. Modification: This Agreement may not be amended or modified
except by an agreement in writing signed by an authorized representative of the
party against whom the enforcement of any modification or amendment is sought.
9. Joint Draftsmanship: Each of the parties participated in the
drafting of this Agreement intending for the language to be clear and
unambiguous. The parties jointly accept responsibility for any ambiguities in
this Agreement.
10. Governing Laws: This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Arkansas.
11. Litigation Costs: If any legal action or other proceeding is
brought for the enforcement of this Agreement, the losing or defaulting party
shall pay to the prevailing party reasonable attorneys' fees, costs and
expenses incurred in connection with the prosecution of defense of the action.
12. Notices: All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) three
(3) business days after it is sent by registered or certified mail, return
receipt requested, postage prepaid, (ii) when receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly sent by
first class mail), or (iii) one (1) business day following deposit with a
recognized national overnight courier service for next day delivery, charges
prepaid, and, in each case, addressed to the intended recipient as set forth
below:
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If to Company or Parent: Aasche Transportation Service, Inc.
00000 Xxxxx Xx. Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Chairman
Fax No. (000) 000-0000
If to Executive: Xxxx Xxxxxx
c/o Stockland & Xxxxxxxx, P.A.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 0000
Fax No. (000) 000-0000
13. General Release of Claims and Hold Harmless: Executive and
Company hereby generally release and forever discharge each other from any
claims, demands, obligations, losses, causes of action, damages, penalties,
costs, expenses, attorneys' fees, liabilities, and indemnities of any nature
whatsoever, whether known or unknown, which as of the date of this Agreement
the parties had, now have, or claim to have. Excepted from this release are
only (i) this Agreement and any right or obligations arising under it, and (ii)
any rights to indemnification Executive may have on account of his service as
an officer or director of the Company or its predecessor. Parent hereby
ratifies and approves all actions taken by Executive while employed by Company
or its predecessor.
POLAR EXPRESS CORPORATION
By: /s/ Xxxxx X. Xxxxx, President
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AASCHE TRANSPORTATION
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx, Chairman
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/s/ Xxxx Xxxxxx
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XXXX XXXXXX
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EXHIBIT A
PURCHASE FORM
To: AASCHE TRANSPORTATION SERVICES, INC.
00000 X. Xx. Xxxxxx Xx.
Xxxxxxx, XX 00000
The undersigned hereby irrevocably subscribes for __________ shares of
Common Stock of Aasche Transportation Services, Inc. pursuant to and in
accordance with the terms and conditions of that certain Amended Employment and
Stock Option Agreement dated as of July 22, 1996, and hereby makes payment of
_____________ Dollars ($________) therefor and requests that a certificate for
such shares be issued in the name of the undersigned and delivered to the
undersigned at the address listed below.
Address:
____________________________________
____________________________________
____________________________________
Dated: ______________, 1996.
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