EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT - XXXXXX XXXXX
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") made as of the ____ day
of _____________, 1997 by and between PRECEPT INVESTORS, INC., a Nevada
corporation with offices at 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000
(the "Company"), and XXXXXX XXXXX, residing at 00 Xxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000 ("Executive").
WHEREAS, pursuant to the Agreement and Plan of Reorganization dated as of
October __, 1997, the Company acquired substantially all of the assets of U.S.
Transportation Systems, Inc. ("USTS") in a transaction that fulfilled the
requirements of Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as
amended (the "Reorganization").
WHEREAS, prior to the Reorganization, Executive served as President of
USTS.
WHEREAS, following the Reorganization, the Company will continue the
business in which USTS engaged prior to the Reorganization.
WHEREAS, the Company desires that Executive serve in a senior executive
capacity in the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto, intending to be legally bound, agree
as follows:
I. EMPLOYMENT. The Company hereby employs Executive to perform those
duties generally described in this Agreement, and Executive hereby accepts such
employment upon the terms and conditions hereinafter set forth.
1. TERM. The term of this Agreement shall commence on _____________
and continue for a period of five (5) years, ending on ______________________.
The period during which Executive is employed hereunder is referred to herein as
the "Employment Period".
2. DUTIES. Executive is hereby employed as President of the
Transportation Division of the Company. Executive shall perform such services
as are reasonably determined by the Board of Directors ("Board"). Specifically,
Executive shall be responsible for overseeing all operational functions of the
Company's transportation-related businesses. During the Employment Period,
Executive shall devote all of Executive's normal business time, attention and
energies to the performance of Executive's duties, and faithfully and diligently
serve and further the interests of the Company according to the best of
Executive's ability.
3. COMPENSATION.
a. SALARY. For all services rendered to the Company by
Executive during the term of this Agreement, the Company shall pay Executive
an annual salary of One Hundred Seventy Thousand Dollars ($170,000.00).
Executive's annual salary shall be increased each year in accordance with the
Company's overall
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compensation pool and in accordance with Executive's performance of his
duties. Executive's salary shall be payable in equal installments and at the
same time and frequency as other senior executive management of the Company
are paid. All salary payments shall be subject to withholding and other
applicable taxes.
b. BONUS. Executive shall be entitled to receive cash bonuses
based on his performance in accordance with standard Company practices
applicable to senior executive management.
c. HEALTH, MEDICAL, DISABILITY AND LIFE INSURANCE BENEFITS.
Executive shall be entitled to receive such health, medical, disability and life
insurance benefits as are made available to senior executive management of the
Company.
d. VACATIONS/SICK LEAVE. Executive shall be entitled to such
paid vacation and paid sick leave as are generally provided to the Company's
senior executive management.
e. EXECUTIVE BENEFIT PLANS. Executive shall be entitled to
inclusion in the Company's Stock Option Plan, as in effect from time to time, as
well as any other plans adopted by the Company in which executive officers of
the Company are eligible to participate.
f. REIMBURSEMENT OF EXPENSES. Executive shall be entitled to
reimbursement of all reasonable business expenses actually incurred by Executive
in the discharge of Executive's duties hereunder, including expenses for
entertainment, travel, attendance at conventions, employee training and similar
items, upon submission to the Company with satisfactory documentation
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thereof.
g. AUTOMOBILE EXPENSES. The Company acknowledges that
Executive will require the use of an automobile to effectively discharge his
duties hereunder. Accordingly, the Company agrees only to provide Executive
with full reimbursement for all gasoline expenses in connection therewith.
4. TERMINATION OF EMPLOYMENT.
a. TERMINATION FOR CAUSE. The Company may terminate this
Agreement, without liability, for "Cause" (as defined below) by delivering to
Executive thirty (30) days' advance written notice of termination setting forth
the reasons for such termination. As used herein, the term "Cause" shall
include the following: (i) material and willful or gross misconduct by
Executive in the performance of his duties hereunder, the consequences of which
are materially adverse to the Company, monetarily or otherwise; (ii) the willful
failure by Executive to perform or observe any substantial lawful obligation of
such employment that is not remedied within thirty (30) days after the receipt
of written notice thereof from the Board of Directors; (iii) Executive is unable
to perform his duties assigned to him under this Agreement for more than ninety
(90) consecutive calendar days as a result of his becoming Disabled (defined
hereinafter). "Disabled" shall mean the inability of the Executive, for medical
reasons certified by a physician selected by the Company and reasonably
satisfactory to the Executive, to substantially perform his duties hereunder;
(iv) a finding by a court of competent
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jurisdiction that Executive is guilty of fraud or dishonesty; or (v)
Executive fails to perform the reasonable duties assigned to him under this
Agreement in a manner which is consistent with the standards and policies
established by the Company and/or the reputation of the Company in the
community. Upon delivery of such notice of termination, all obligations of
the Company hereunder shall cease. The Company shall, upon such termination,
assign to the Executive its interest in any life or other insurance policies
carried by the Company for the benefit of Executive. In addition, the
Company shall provide Executive with the same insurance coverage, or access
to insurance coverage, required by "COBRA" regardless of whether the Company
is legally required to provide such coverage on the termination date of
Executive's employment.
b. BY DEATH. This Agreement shall terminate automatically upon
the death of Executive, and all obligations of the Company hereunder, other than
those set forth in Section 5(d) below, shall cease.
c. Notwithstanding anything to the contrary in this Agreement,
no termination shall be effective unless and until the Company first delivers
written notice to Executive setting forth the grounds for termination and
Executive fails to cure such alleged grounds within thirty (30) days of his
receipt of such notice.
d. Upon the termination of this Agreement, the Company shall
immediately pay Executive (or his executors, personal representatives or heirs)
all amounts owed to Executive through
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the date of termination.
5. COVENANT NOT TO COMPETE. Executive shall not engage in any
employment activity in a competitive industry within a 100-mile radius of any
Company operation for a period of two (2) years following the termination of his
employment. Executive shall not, during the Employment Period, directly or
indirectly (on his own behalf or as an agent, employee, officer, director,
partner, shareholder, or other owner), loan money or credit to, own any interest
in, engage in, or otherwise participate in a business directly competitive with
the Company's present operations and business throughout the continental United
States. Executive acknowledges that his covenant not to compete is essential to
this Agreement, that the Company would not have entered into this Agreement
without this section being included in it, and that this section is reasonable
and does not place any undue hardship on Executive, and that Executive has been
amply and generously compensated for agreeing to the terms of this Covenant.
Executive acknowledges and agrees that the Company's remedy at law for any
breach of his obligations under this section would be inadequate, and agrees and
consents that temporary and permanent injunctive relief may be granted in any
proceeding which may be brought to enforce any provisions of this section
without the necessity of proof of actual damages. With respect to any such
provisions finally determined by a court of competent jurisdiction to be
unenforceable, such court shall have jurisdiction to reform this Agreement and
such provision so that it is enforceable to the
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maximum extent permitted by law, and the parties shall abide by such court's
determination. If such unenforceable provision cannot be reformed, such
provision shall be deemed to be severed from this Agreement, but every other
provision of this Agreement shall remain in full force and effect.
6. INDEMNIFICATION. The Company shall indemnify Executive to the
fullest extent authorized by the Texas Business Corporation Act. The Company
shall obtain and maintain coverage for Executive under any insurance policy now
in force or hereinafter obtained during the term of this Agreement insuring
officers and directors of the Company against liability.
7. NOTICES. Any notice or other written instrument required or
permitted to be given, made or sent hereunder shall be in writing, signed by the
party giving or making the same, and shall be sent by registered or certified
mail or through courier delivery service to the other party hereto at his or its
respective address hereinabove set forth. Any party hereto shall have the right
to change the place to which any such notice or writing shall be sent by a
similar notice sent in like manner to the other party hereto.
8. WAIVER OF BREACH. The waiver by the Company or the Executive of
a breach by the other of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach. No waiver shall be valid unless
in writing and signed by an authorized officer of the Company.
9. ASSIGNMENT. The Company and Executive acknowledge
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that the relationship established hereby is unique and personal and that
neither the Company nor Executive may assign or delegate any of their
respective rights and/or obligations hereunder without the prior written
consent of the other party except as follows:
In the event of a future disposition of (or including) the properties
and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, or otherwise, then the Company shall be obligated
to assign this Agreement and all of its rights and obligations hereunder to the
acquiring or surviving corporation, and such acquiring or surviving corporation
shall assume in writing all of the obligations of the Company hereunder;
provided, however, that the Company (in the event and so long as it remains in
business as an independent going enterprise) shall remain liable for the
performance of its obligations hereunder in the event of an unjustified failure
of the acquiring corporation to perform its obligations under this Agreement.
10. SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
12. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas applicable to
contracts made and to be performed therein.
13. ARBITRATION. Any controversy or claim arising out
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of, or relating to, this Agreement or its breach shall be settled by
arbitration in the City of Dallas in accordance with the then governing rules
of the American Arbitration Association. Such arbitration shall be conducted
by a single arbitrator. Judgment upon the award rendered may be entered and
enforced in any court of competent jurisdiction.
14. COMPLETE AGREEMENT. This document contains the entire agreement
between the parties and supersedes any prior representations or agreements
respecting the subject matter hereof. No alteration, addition or other change
to this Agreement shall be binding unless in writing signed by the party to be
bound.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ATTEST: PRECEPT INVESTORS, INC.
By:
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Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
WITNESS: EXECUTIVE:
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Xxxxxx Xxxxx
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