EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into on this 20th day of July,
1999, by and between NATIONS EXPRESS INC., a North Carolina corporation
("Employer"), and XXXXXXX X. XXXXXXX, an individual residing in Flower Mound,
Texas ("Employee"). The purpose of this Agreement is to set forth the terms and
conditions upon which the Employer and the Employee have agreed to create an
employer-employee relationship.
ARTICLE I
EMPLOYMENT OF EMPLOYEE
1.01 Employment. The Employee is hereby employed as the Executive Vice
President, Chief Financial Officer and Corporate Secretary of the Employer. This
position shall, at the discretion of the Board of Directors, include
responsibilities that will groom the backup and possible successor to the
Employer's President and Chief Executive Officer. The Employee shall perform
such duties commensurate with his position and responsibilities as the President
and/or Board of Directors of the Employer shall from time to time direct. All
services to be rendered by the Employee shall be performed to the best of his
ability and in furtherance of the welfare and development of the Employer. The
Employee shall work at the main office of the Employer and at such other place
or places as may be reasonably required from time to time to fulfill his
obligations hereunder.
1.02 Hours of Employment. The Employee shall work such hours as may be
necessary to properly conduct the duties and functions of the Employee
hereunder.
1.03 Fulfillment of Duties. The Employee agrees to devote such
productive time, ability, and attention to the business of the Employer during
the term of this Agreement as may be required for the efficient performance of
his duties set forth in Section 1.01 herein. The Employee shall not directly or
indirectly render any services of a business, commercial, or professional nature
to any individual, corporation, partnership, joint venture or other entity, if
and to the extent that such services are in conflict with Employee's duties to
Employer under this Agreement.
1.04 Nepotism Policy. Employee acknowledges that Employer is concerned
about the potential personnel problems that could develop if employees with
hiring responsibility hire family members and/or relatives. Accordingly,
Employee will not hire as an employee of Employer any family member or relative
of (i) Employee, (ii) any officer of Employer or (iii) any member of the Board
of Directors of Employer, unless approved in advance by the Board of Directors
of Employer.
ARTICLE II
TERM OF EMPLOYMENT
2.01 Basic Term. The term of the employment of the Employee pursuant to
the terms of this Agreement shall commence on the date initially set forth above
and shall continue until December 31, 2004 (The Initial Term). This Agreement
may be terminated earlier as herein provided in Section 6.01 of this Agreement.
2.02 Extended Term. On the fourth anniversary date of this contract,
and on or before the anniversary date of the contract each year thereafter, the
term of this contract will automatically extend by twelve months, unless the
Employer notifies the Employee in writing that the Company does not intend to
extend the contract beyond the next twelve month period.
ARTICLE III
COMPENSATION
3.01 Basic Compensation. As compensation for services rendered under
this Agreement, the Employer shall pay to Employee an annual salary of $130,000
be payable in accordance with the regular payroll practices of the Employer. The
Employee shall entitled to a review at the end of the first twelve months of
employment, and not less than once each twelve months thereafter.
3.02 Executive Bonus Compensation. In addition to the basic
compensation set forth in Section 3.01 above, the Employee shall be entitled to
participate in the Executive Bonus Plan. Such bonus will be payable within sixty
(60) days after the audit report is formally issued regarding each applicable
fiscal year end commencing with the June 30, 200, fiscal year end. Payment of
the bonus upon termination of Employee's employment is governed by Section
6.02(c).
3.03 Five-year Stock Option Plan. In addition to the basic compensation
set forth in Section 3.01 above and the Executive bonus compensation as set out
in Section 3.02, the Employee shall participate in the Company's Incentive Stock
Option Plan based on the following conditions and formula:
(a) five year option to purchase 150,000 shares of the
Company's common stock.
(b) Option price: $2.25 per share.
(c) Vesting Period five years. (20% per year)
(d) Options will be granted from the Company's 1998 Incentive
Stock Option Plan.
If a controlling interest of the Company's Common Stock is sold in a
transaction, the employee will immediately vest any unearned stock option.
3.04 Annual Review. The Employer agrees that it will review the basic
compensation (and the criteria therefor) for the Employee at the conclusion of
twelve months of employment, and not less than once each twelve months
thereafter.
3.05 Other Benefits. The Employer shall provide to the Employee, in
addition to the foregoing compensation, the following benefits:
(a) The Employee shall participate in the Company's executive
auto allowance.
(b) The Employee shall participate in the Company's Executive
Vacation Plan, for which the Employee shall be entitled to paid
vacation of not less than three (3) weeks per calendar year, beginning
January 1, 2000.
(c) The Employer shall provide such other and further benefits
to the Employee as are generally provided to other Executive employees
of the Employer.
(d) The Employer shall provide the Employee with up to 40
hours of CPE annually to support the maintenance of Employee's
Certified Public Accountants license.
ARTICLE IV
REIMBURSEMENT OF EMPLOYEE EXPENSES
4.01 Business Expenses. The Employer shall reimburse the Employee for
normal and reasonable documented business expenses incurred in the performance
of his duties hereunder upon the presentation of vouchers or receipts for such
expenses.
4.02 Relocation Expenses. The Employer shall reimburse the Employee for
all reasonable documented relocation expenses from Texas to North Carolina.
ARTICLE V
PROPERTY RIGHTS
5.01 Trade Secrets. The Employee during the term of employment under
this Agreement will have access to and develop knowledge regarding various trade
secrets, consisting of formulas, methods, processes, and compilations of
information, records, and specifications concerning customers, potential
customers, services, business methods, training methods, proprietary
information, computer programs, marketing strategies and other corporate data
which are owned by, or which will be developed on behalf of, the Employer and
which are regularly used in the operation of the business of the Employer (the
"Trade Secrets"). The
Employee shall not divulge publish, disclose, or otherwise reveal any of the
aforesaid Trade Secrets, either directly or indirectly, to any person, firm,
corporation or any third party, nor use them in any way, either during the term
of this Agreement or at any time thereafter, except as required in the course of
his employment. All files, records, documents, specifications, memoranda, notes
and similar items relating to the business of the Employer shall remain the
exclusive property of the Employer.
5.02 Records. All files, records, documents, drawings, specifications,
equipment, and similar items relating to the business of the Employer
("Records"), whether prepared by the Employee or otherwise coming into his
possession, shall remain the exclusive property of the Employer. All such
Records shall immediately be placed in the possession of the Employer upon the
termination of this Agreement, or at any other time specified by the Employer.
The retention and use of duplicates in any form of such Records by the Employee
is prohibited after the termination of this Agreement, unless agreed to in
writing by a majority of the Board of Directors of the Employer.
5.03 Restrictive Covenant.
(a) The Employee covenants and agrees that the Employee shall not enter
into or engage generally in direct competition with the Employer either as an
individual on his own or as a partner or joint venturer, or as an employee,
consultant or agent for any family member, relative, person, firm, corporation
or other third party, or as an officer, director, shareholder or otherwise, for
the period of two years after this contract is terminated. Further, the Employee
covenants and agrees not to contact, on behalf of the Employee or any other
person, any customer or potential customer of the Employer, other than for a
valid business purpose of the Employer and for the benefit of the Employer for
the period beginning with the execution of this contract, and for a period of
two years after this contract is terminated. The term "potential customer" shall
mean any person or entity contacted by the Employee, the Employee, or any of its
affiliates, officers, directors, employees, shareholders or representatives
during the term of the Employee's employment for purposes of soliciting their
business.
(b) The covenant on the part of the Employee contained in Section
5.03(a) shall be independent and shall continue for its term in the event and
from the date this Agreement is breached or terminated by the Employee or
Employer. The covenants on the part of the Employee shall be construed as
agreements independent of any other provision of this Agreement, and the
existence of any claim or cause or action of the Employee against the Employer,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of such covenants. The Employee
recognizes that such covenants on the part of the Employee are an important
inducement to the Employer in executing this Agreement.
ARTICLE VI
TERMINATION
6.01 Termination by Employer of Cause. This Agreement may be terminated
by the Employer for good cause upon ten (10) days written notice to Employee.
Such termination shall
be without prejudice to any right or remedy to which the Employer may be
entitled either at law, in equity, or under this Agreement. Without prejudice to
the generality of the right to terminate for good cause, each of the following
contingencies will be good cause:
(a) Should the Employee by reason or injury or illness fail to
perform his duties as an employee under this Agreement for more than
180 consecutive days;
(b) Should the Employee, for reasons other than (i) vacation
leave in accordance with the Employer's policies existing from time to
time and in accordance with this Agreement, (ii) illness or (iii)
injury, absent;
(c) Himself from his duties without the consent of the
President or the Board of Directors of the Employer for more than ten
(10) consecutive business days;
(d) Should the Employee be convicted of a felony or a crime
involving moral turpitude or a crime which, in the sole judgment of the
Employer, materially adversely affects the utility of the services of
the Employee to the Employer in its business;
(e) Should the Employee engage in any activity related to the
business of the Employer that would constitute a material conflict of
interest with the Employer without the consent of the Board of
Directors of Employer;
(f) Should the Employer be grossly negligent in the
performance of his duties hereunder, or otherwise fail to comply with
the material terms and conditions of this Agreement, unless waive in
writing by the Board of Directors of Employer; or
(g) Should the Employee's conduct constitute material willful
misconduct; or
(h) The death of the Employee.
Any decision to terminate this Agreement pursuant to this Section 6.01
shall be made by the affirmative vote of a majority of the members of the Board
of Directors other than Employee if Employee is a member of the Board of
Directors at the time the vote is taken.
6.02 Effect of Termination on Compensation.
(a) In the event this agreement is terminated by the Employer
for reasons other than good cause, prior to the completion of the
initial term of employment specified herein, or any extensions of the
agreement, the Employee shall be entitled to the remainder of the
unearned basic compensation as provided for in this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.01 Notices. Any notices to be given hereunder by either party to the
other may be effected either by hand delivery, in writing, with evidence of
receipt or by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the Employee at the addresses
latest appearing on the Employer's personnel records, but the Employee may
change his address by written notice in accordance with this paragraph. Mailed
notices to Employer shall be addressed to: Xx. XXXXX XXXXXX at the office of the
Employer (which may be changed upon written notification to Employee). Notices
delivered personally shall be deemed communicated as of the date of actual
receipt and mailed notices shall be deemed communicated as of the date three (3)
days after mailing in accordance herewith.
7.02 Inclusion of Entire Agreement Herein. This Agreement supersedes
any and all other agreements, either oral or in writing, between the parties
hereto with respect to the employment of the Employee by the Employer and
contains all of the covenants and agreements between the parties with respect to
such employment in any manner whatsoever.
7.03 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
7.04 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which such party may be
entitled.
7.05 Payment of Moneys Due Deceased Employee. If the Employee dies
prior to the expiration of the employment term, any moneys that may be due him
from the Employer under this Agreement as of the date of his death shall be paid
to his designated beneficiary, executors, administrators, heirs, personal
representative, successors, or assigns, as the case may be.
7.06 Amendment. This Agreement may be amended from time to time only by
the mutual consent in writing signed by both the Employee and the Employer.
7.07 Benefit and Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective heirs,
executors, administrators, successors, and permitted assigns and shall be read
with all changes of number and gender as may be required by the context, save
and except the agreement to employ is personal to the Employee.
7.08 Effect of Waiver. The failure of any party to seek redress for
violation of or to insist upon the performance of any provision of this
Agreement does not constitute a waiver of seeking redress if that violation
continues or occurs again.
7.09 Illegality; Invalidly. Every provision in this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
legality or validity of the remainder of this Agreement,
and such illegal or invalid provision shall be modified to the extent necessary
to make it legal, valid, and enforceable.
7.10 Rights and Remedies Cumulative. The rights and remedies provided
in this Agreement are cumulative and the use of any one right or remedy by a
party shall not preclude or waive its right to use any or all of the remedies.
Said right and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
7.11 Headings. Headings are included for ease of reference only and
shall not be considered in the interpretation or meaning of any provision of
this Agreement.
EXECUTED as of the date first written above.
Employer:
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NATIONS EXPRESS INC.
By: XXXXX X. XXXXXX
Its: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Employee:
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XXXXXXX X. XXXXXXX
