EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is effective as of the date signed (the
“Effective Date”), between Express-1 Expedited Solutions, Inc., a Delaware corporation, whose
principal place of business is 0000 X. Xxxxxxxxx Xx., Xx. Xxxxxx, Xxxxxxxx 00000 (the “Company”)
and Xxxxx Xxxxx (the “Executive”).
RECITALS
A. The Company is principally engaged in the business of expedited transportation and third
party logistics (the “Business”).
B. The Executive has extensive experience in logistics operations and transportation
management.
C. The Company desires to employ the Executive and the Executive desires to be employed by the
Company.
D. The parties agree that a covenant not to compete is essential to the growth and stability
of the Business of the Company.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the Company and the
Executive do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are herein incorporated by
reference.
2. Employment. The Company hereby employs the Executive, and the Executive hereby
accepts employment, upon the terms and conditions hereinafter set forth.
3. Authority and Power During Employment Period.
a. Duties and Responsibilities. During the term of this Agreement, the Executive
shall serve as the Chief Financial Officer for the Company and report to the Chief Executive
Officer. The executive shall have general financial management authority over all aspects of the
Company’s Financial Business, subject to the guidelines and direction of the Board of Directors of
the Company.
b. Time Devoted. Throughout the term of the Agreement, the Executive shall devote all
of the Executive’s business time and attention to the business and affairs of the Company
consistent with the Executive’s position with the Company.
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4. Term. The Term of employment hereunder will commence on the date as set forth
above and terminate three (3) years from the Effective Date, and such term shall automatically be
extended for a one (1) year term thereafter in the sole discretion of the Company. For purposes of
this Agreement, the Term (the “Term”) shall include the initial term and all renewals thereof.
5. Compensation and Benefits.
a. Salary. The Executive shall be paid a base salary (the “Base Salary”)
at an annual rate of One Hundred and Sixty Thousand Dollars. The Base Salary shall be
reviewed annually throughout the Term by the company’s compensation committee and may be
raised at its sole discretion.
b. Performance Based Bonus. As additional compensation, the Executive shall be
entitled to receive a bonus (“Bonus”) for each year during the Term of the Executive’s
employment by the Company, and based upon the Company’s executive bonus plan as adopted and
amended from time-to-time by the Company’s Board of Directors. The amount any Bonus shall be
determined based upon performance targets set annually by the compensation committee of the
Board of Directors.
c. Executive Benefits. The Executive shall be entitled to participate in
benefit programs of the Company currently existing or hereafter including, but not limited
to, group life insurance, health insurance, dental, and 401 K on the first of the month
following 90 days of employment.
d. Vacation. The Executive shall be entitled to four (4) weeks of paid
time off during each year during the Term.
e. Business Expense Reimbursement. During the Term of employment, the
Executive shall be entitled to receive proper reimbursement for all reasonable,
out-of-pocket expenses incurred by the Executive (in accordance with the policies and
procedures established by the Company for its senior executive officers) in performing
services hereunder, provided the Executive properly accounts therefore.
6. Consequences of Termination of Employment.
a. Death. In the event of the death of the Executive during the Term, Base
Salary and any earned Bonus shall be paid to the Executive’s designated beneficiary, or, in
the absence of such designation, to the estate or other legal representative of the
Executive until the date of death. Other death benefits will be determined in accordance
with the terms of the Company’s benefit programs and plans.
b. Disability.
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(1) In the event of the Executive’s Disability, as hereinafter defined, the Executive
shall be entitled to compensation in accordance with the Company’s disability compensation
practice for senior executives, including any separate arrangement or policy covering the
Executive, but in all events the Executive shall continue to receive the Executive’s Base
Salary for ninety (90) days from the date on which the Disability has been deemed to occur.
Any amounts provided for in this Section 6(b) shall be offset by other long-term disability
benefits provided to the Executive by the Company.
(2) “Disability,” for the purposes of this Agreement, shall be deemed to have occurred
in the event (A) the Executive is unable by reason of sickness or accident to perform the
Executive’s duties under this Agreement for an aggregate of 30 days in any twelve-month
period or (B) the Executive has a guardian of the person or estate appointed by a court of
competent jurisdiction. Termination due to Disability shall be deemed to have occurred upon
the first day of the month following the determination of Disability as defined in the
preceding sentence.
Anything herein to the contrary notwithstanding, if, following a termination of employment
hereunder due to Disability as provided in the preceding paragraph, the Executive becomes
reemployed, whether as an Executive or a consultant to the Company, any salary, annual incentive
payments or other benefits earned by the Executive from such reemployment shall offset any salary
continuation due to the Executive hereunder commencing with the date of re-employment.
c. Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from terminating Employment for “Cause,”
as hereinafter defined. In the event of a termination for Cause, the Executive shall
receive Base Salary and benefits through the date of termination only, together with any
Bonus that has been earned as of that date.
(2) “Cause” shall mean:
(A) Executive’s material violation of any of the provisions of this
Agreement, or the rules, policies, and/or procedures of the Company, or
commission of any material act of fraud, misappropriation, breach of
fiduciary duty or theft against or from the Company, if such violation is
not cured as soon as is reasonably practical, and in any event within thirty
(30) days after written notice from the Company, or if Executive commits the
same violation within twelve (12) months of receiving any such notice.
(B) Executive’s violation of any law, rule or regulation of a
governmental authority or regulatory body with jurisdiction over the Company
or Executive relative to the conduct of Executive in connection with the
Company’s business or its securities, if such violation is not cured as soon
as is reasonably practical, and in any event within thirty (30) days after
written notice from the Company, or if Executive commits the same
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violation within twelve (12) months of receiving any such notice.
(C) The conviction of Executive of a felony under the laws of the
United States of America or any state therein.
d. Termination by the Company Other than for Cause. The Company may terminate
the Executive’s employment in the Company’s sole discretion at any time; provided, however,
that in the event such termination is not pursuant to Section 6(a), Section 6(b), or
Section 6(c) hereof, the Company may terminate this Agreement upon three (3) months’ prior
written notice. During such three (3) month period the Executive shall continue to perform
the Executive’s duties pursuant to this Agreement and the Company shall continue to
compensate the Executive pursuant to this Agreement. In the event of a termination under
this Section 6(d), the Executive shall receive Base Salary only (i.e. no fringe benefits,
Bonus, or other compensation), for the lesser of the one year period following termination
or the remaining Term. All awarded options will vest immediately upon the termination of
the Executive pursuant to this Section 6(d).
e. Voluntary Termination. In the event the Executive terminates the
Executive’s employment on the Executive’s own volition (except as provided in Section 6(f)),
the Executive shall receive Base Salary and benefits through the date of termination only,
together with any Bonus that has been earned as of that date.
f. Termination Following a Change of Control. If, within one year after a
Change in Control, the Company terminates Executive’s employment with the Company without
Cause, OR Executive voluntarily terminates such employment with Good Reason, the following
provisions will apply:
(1) An amount equal to the sum of (A) Executive’s aggregate Base Salary (at the
rate most recently determined) for a period equal to one year (the “Severance
Period”), and (B) an amount equal to the greater of (i) Executive’s Bonus
payments for the year preceding the date of termination, and (ii) the annual average
of Executive’s Bonus payments during the two (2) years immediately preceding the
date of termination, shall be paid to, or in trust for, Executive pursuant to
Section 6(f)(7) in a lump sum within 30 days after the date of termination.
(2) Executive shall receive any and all benefits accrued under any Incentive
Plans and Benefit Plans to the date of his termination. The amount, form and time of
payment of such benefits shall be determined by the terms of such Incentive Plans
and Benefit Plans, and for purposes of such plans, Executive’s employment shall be
deemed to have terminated by reason of retirement.
(3) The Company agrees that for purposes of all Incentive Plans and Benefit
Plans Executive shall be given service credit for all purposes for, and shall
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be deemed to be an employee of the Company during, the Severance Period,
notwithstanding his inability to render services by reason of death or disability
during the Severance Period or the fact that he is not an employee of the Company
during the Severance Period; provided that, if the terms of any of such Incentive
Plan or Benefit Plan do not permit such credit or deemed employee treatment, the
Company will make identical payments and distributions outside of the Plans.
(4) During the Severance Period Executive and his dependents will continue to
be covered by all health, dental, disability, accident and life insurance plans or
arrangements made available by the Company in which he or his dependents were
participating immediately prior to the date of his termination as if he continued to
be an employee of the Company, provided that, if participation in any one or more of
such plans and arrangements is not possible under the terms thereof, the Company
will provide substantially identical benefits. Executive’s right to continuation of
coverage under the health insurance plan of employer pursuant to Section 4980B (or
any successor section) shall commence at the end of the Severance Period.
(5) No payments or benefits payable to or with respect to Executive during the
Severance Period pursuant to this Section 6(f) shall be reduced by any amount
Executive or his dependents, spouse or beneficiary may earn or receive from
employment with another employer or from any other source.
(6) Except as otherwise provided in Section 6(f)(7), upon the death of
Executive all amounts payable hereunder to Executive pursuant to this Section 6(f)
shall be paid to his devisee, legates or other designee, or in the absence of a
designee, to his estate.
(7) Amounts payable pursuant to Section 6(f)(1) shall be, at the election of
Executive set forth in a written instrument delivered to the Company within 15 days
after his termination of employment, be either paid to him in a lump sum or paid to
the trustee of a trust to be established by the Company for the benefit of
Executive, with a bank or trust company selected by Executive as trustee. If
Executive elects to have payments made to the trustee of such trust, the trust
agreement shall conform to the provisions of any applicable model trust set forth in
any Internal Revenue Service authority and shall contain terms and conditions
mutually satisfactory to Executive and the Company and that are not inconsistent
with the provisions of any such model trust.
(8) Treatment of Options.
(A) If upon termination of his employment pursuant to Section 6(f)(1)
Executive holds any options (the “Options”) with respect to the common stock
(the “Common Stock”) of the Company, which are not then exercisable, said
Options shall immediately vest upon termination. All such Options shall
remain outstanding and exercisable for
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the remainder of the full term thereof (i.e. the term of said Option
shall not be shortened as a result of any change in control provisions or
other adjustment provisions contained in the Option agreement or the plan
under which the Options were issued).
(B) If Executive holds Options and (i) the Company effects any merger
or consolidation of the Company with or into another person, (ii) the
Company effects any sale of all or substantially all of its assets in one or
a series of related transactions, (iii) any tender offer or exchange offer
(whether by the Company or another person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for
other securities, cash or property or (iv) the Company effects any
reclassification of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property (each a “Fundamental
Transaction”), then, upon any subsequent exercise of the Options,
Executive shall have the right to receive, for each share of Common Stock
underlying the Option that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, the
number of shares of Common Stock of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional
consideration (the “Alternate Consideration”) receivable as a result
of such merger, consolidation or disposition of assets by a holder of the
number of shares of Common Stock for which the Option is exercisable
immediately prior to such event. If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a
Fundamental Transaction, then Executive shall be given the same choice as to
the Alternate Consideration it receives upon any exercise of the Option
following such Fundamental Transaction. To the extent necessary to
effectuate the foregoing provisions, any successor to Company or surviving
entity in such Fundamental Transaction shall issue to Executive a new option
consistent with the foregoing provisions and evidencing Executive’s right to
exercise such Option into Alternate Consideration. The terms of any
agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply
with the provisions of this Section 6(f)(8) and insuring that the Options
(or any such replacement security) will be similarly adjusted upon any
subsequent transaction analogous to a Fundamental Transaction.
(9) Expenses. The Company shall pay to Executive all out-of-pocket
expenses, including attorneys’ fees, incurred by Executive in connection with the
successful enforcement of this Section 6(f) by Executive.
(10) Definitions. For purposes of this Agreement:
(A) “Benefit Plans” shall mean any qualified or supplemental
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defined benefit retirement plan or defined contribution retirement
plan, currently or hereafter made available by the Company to Executive in
which Executive is eligible to participate, or any private arrangement
maintained by the Company solely for executive.
(B) “Change in Control” shall be deemed to occur on the
earliest of any of the following events:
(i) The ownership by any entity, person, or group of beneficial
ownership, as that term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, of more than 50% of the outstanding
capital stock of the Company entitled to vote for the election of
directors (“Voting Stock”);
(ii) The effective time of (a) a merger or consolidation of the
Company with one or more other corporations as a result of which the
holders of the outstanding Voting Stock of the Company immediately
prior to such merger hold less than 80% of the Voting Stock of the
surviving or resulting corporation, or (b) a transfer of all or
substantially all of the property of the Company other than to an
entity of which the Company owns at least 80% of the Voting Stock
(for example, for purposes hereof, the sale of the Express-1
Expedited division and the CGL division shall be deemed to be the
transfer or substantially all of the property of the Company); or
(iii) The election to the Board of Directors of the Company,
without the recommendation or approval of the incumbent Board of
Directors of the Company, of the lesser of (a) three independent
directors or (b) directors constituting a majority of the number of
directors of the Company then in office.
(C) “Good Reason” shall exist if, without Executive’s express
written consent:
(i) The Company shall assign to Executive duties of a
non-executive nature or for which Executive is not reasonably
equipped by his skills and experience;
(ii) The Company shall reduce the salary of Executive, or
materially reduce the amount of paid vacations to which he is
entitled, or his fringe benefits and perquisites;
(iii) With respect to an Executive employed at the Company’s St.
Xxxxxx, Michigan office, the Company shall require Executive to
relocate his principal business office or his principal place of
residence greater than fifty miles outside St. Xxxxxx, Michigan (said
50 mile area being hereinafter referred to as the
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“Area”), or assign to Executive duties that would reasonably
require such relocation;
(iv) The Company shall require Executive, or assign duties to
Executive, which would reasonably require him to spend more than
sixty normal working days away from the Area during any consecutive
twelve month period;
(v) The Company shall fail to provide office facilities,
secretarial services, and other administrative services to Executive
which are substantially equivalent to the facilities and services
provided to Executive on the date hereof; or
(vi) The Company shall terminate incentive and benefit plans or
arrangements, or reduce or limit Executive’s participation therein
relative to the level of participation of other executives of similar
rank, to such an extent as to materially reduce the aggregate value
of Executive’s incentive compensation and benefits below their
aggregate value as of the date hereof.
(D) “Incentive Plans” shall mean any incentive, bonus, deferred
compensation or similar plan or arrangement currently or hereafter made
available by the Company in which Executive is eligible to participate.
(3) For purposes of this Agreement, a “Change in Control” of the Company shall mean a
change in control (A) as set forth in Section 280G of the Internal Revenue Code or (B) of a
nature that would be required to be reported in response to Item 5.01 of the current report
on Form 8K, as in effect on the Effective Date, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”); provided that, without limitation,
such a change in control shall be deemed to have occurred at such time as:
(A) any “person”, other than the Executive, (as such term is used in
Section 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company’s outstanding securities
then having the right to vote at elections of directors; or,
(B) There is a failure to elect four (or such number of directors as
would constitute a majority of the Board of Directors) or more candidates
nominated by management of the Company to the Board of Directors; or
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(C) the individuals who at the Effective Date of the Agreement
constitute the Board of Directors cease for any reason to constitute a
majority thereof unless the election, or nomination for election, of each
new director was approved by a vote of at least two thirds of the directors
then in office who were directors at the Effective Date; or
(D) The Business of the Company is disposed of by the Company pursuant
to a partial or complete liquidation of the Company, a sale of assets
(including stock of a subsidiary of the Company) or otherwise.
Anything herein to the contrary notwithstanding, this Section 6(f) will not apply where the
Executive gives the Executive’s explicit written waiver of the Executive’s rights under this
Section 6(f) with respect to a specific Change in Control event. The Executive’s participation in
any negotiations or other matters in relation to a Change in Control shall in no way constitute
such a waiver which can only be given by an explicit written waiver as provided in the preceding
sentence.
7. Covenant Not to Compete.
a. Covenant Not to Compete. The Executive acknowledges and recognizes the highly
competitive nature of the Company’s business and the goodwill, continued patronage, and
specifically the names and addresses of the Company’s Clients (as hereinafter defined) constitute a
substantial asset of the Company having been acquired through considerable time, money and effort.
Accordingly, in consideration of the execution of this Agreement the Executive agrees to the
following:
(1) That during the Restricted Period (as hereinafter defined) and within the
Restricted Area (as hereinafter defined), the Executive will not, individually or in
conjunction with others, directly or indirectly, engage in any Business Activities (as
hereinafter defined), whether as an officer, director, proprietor, employer, partner,
independent contractor, investor (other than as a holder solely as an investment of less
than 1% of the outstanding capital stock of a publicly traded corporation), consultant,
advisor or agent.
(2) That during the Restricted Period and within the Restricted Area, the Executive
will not, directly or indirectly, solicit, induce or influence any of the Company’s Clients
which have a business relationship with the Company at the time during the Restricted Period
to discontinue or reduce the extent of such relationship with the Company.
b. Non-Disclosure of Information. Executive agrees that Executive will not use or
disclose any Proprietary Information of the Company for the Executive’s own purposes or for the
benefit of any entity engaged in Business Activities. As used herein, the term “Proprietary
Information” shall mean trade secrets or confidential proprietary information of the
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Company which are material to the conduct of the business of the Company. No information can
be considered Proprietary Information unless the same is a unique process or method material to the
conduct of Company’s Business, or is a customer list or similar list of persons engaged in business
activities with Company, or if the same is otherwise in the public domain or is required to be
disclosed by order of any court or by reason of any statute, law, rule, regulation, ordinance or
other governmental requirement. Executive further agrees that in the event his employment is
terminated for any reason all Documents in his possession at the time of his termination shall be
returned to the Company at the Company’s principal place of business. As used herein, the term
“Documents” shall mean all original written, recorded, or graphic matters whatsoever, and any and
all copies thereof, including, but not limited to: papers; books; records; tangible things;
correspondence; communications; telex messages; memoranda; work-papers; reports; affidavits;
statements; summaries; analyses; evaluations; client records and information; agreements; agendas;
advertisements; instructions; charges; manuals; brochures; publications; directories; industry
lists; schedules; price lists; client lists; statistical records; training manuals; computer
printouts; books of account, records and invoices reflecting business operations; all things
similar to any of the foregoing however denominated. In all cases where originals are not
available, the term “Documents” shall also mean identical copies of original documents or
non-identical copies thereof.
c. Company’s Clients. The “Company’s Clients” shall be deemed to be any partnerships,
corporations, professional associations or other business organizations for whom the Company or its
subsidiaries have performed Business Activities.
d. Restrictive Period. The “Restrictive Period” shall be deemed to commence on the
date of this Agreement, and end on the earliest to occur of the following:
(1) twelve (12) months after the termination of this Agreement under Section 6(b),
Section
6(c), Section 6(e), or Section 6(f); or
(2) the date of the termination of this Agreement under Section 6(d); or
(3) the end of the Term (provided the Agreement wasn’t earlier terminated under one of the
provisions of Section 6).
e. Competitive Business Activities. The term “Business Activities” as used herein
shall be deemed to mean the business of expedited transportation and third party logistics.
f. Restrictive Area. The term “Restrictive Area” shall be deemed to mean any State in
which the Company does business.
g. Covenants as Essential Elements of this Agreement. It is understood by and between
the parties hereto that the foregoing covenants contained in Section 7 are essential elements of
this Agreement, and that but for the agreement by the Executive to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by the Executive shall
be construed to be agreements independent of any other provisions of this Agreement. The existence
of any other claim or cause of action, whether predicated on any other
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provision in this Agreement, or otherwise, as a result of the relationship between the parties
shall not constitute a defense to the enforcement of such covenants against the Executive.
h. Survival After Termination of Agreement. Notwithstanding anything to the contrary
contained in this Agreement, the covenants in Section 7 shall survive the termination of this
Agreement and the Executive’s employment with the Company.
i. Revisions. The parties hereto acknowledge that (A) the restrictions contained in
Section 7 are fair and reasonable and are not the result of overreaching, duress, or coercion of
any kind, and (B) Executive’s full, uninhibited, and faithful observance of each of the covenants
contained in this Agreement will not cause Executive any undue hardship, financial or otherwise.
It is the intention of all parties to make the covenants of Section 7 binding only to the extent
that it may be lawfully done under existing applicable laws. In the event that any part of any
covenant of Section 7 is determined by a court of law to be overly broad thereby making the
covenant unenforceable, the parties hereto agree, and it is their desire, that such court shall
substitute a reasonable, judicially enforceable limitation in place of the offensive part of the
covenant and as so modified the covenant shall be as fully enforceable as set forth herein by the
parties themselves in the modified form.
j. Remedies. The Executive acknowledges and agrees that the Company’s remedy at law
for a breach or threatened breach of any of the provisions of Section 7 herein would be inadequate
and a breach thereof will cause irreparable harm to the Company. In recognition of this fact, in
the event of a breach by the Executive of any of the provisions of Section 7, the Executive agrees
that, in addition to any remedy at law available to the Company, including, but not limited to,
monetary damages and all rights of the Executive to payment or otherwise under this Agreement may
be terminated, and the Company, without posting any bond, shall be entitled to obtain, and the
Executive agrees not to oppose the Company’s request for, equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available to the Company.
8. Indemnification.
a. The Executive shall continue to be covered by the Certificate of Incorporation and/or the
Bylaws of the Company with respect to matters occurring on or prior to the date of termination of
the Executive’s employment with the Company, subject to all the provisions of Delaware corporate
law, Federal law and the Certificate of Incorporation and Bylaws of the Company then in effect.
Such reasonable expenses, including attorneys’ fees that may be covered by the Certificate of
Incorporation and/or Bylaws of the Company shall be paid by the Company on a current basis in
accordance with such provision, the Company’s Certificate of Incorporation and Delaware corporate
law. To the extent that any such payments by the Company pursuant to the Company’s Certificate of
Incorporation and/or Bylaws may be subject to repayment by the Executive pursuant to the provisions
of the Company’s Certificate of Incorporation or Bylaws, or pursuant to Delaware corporate law or
Federal law, such repayment shall be due and payable by the Executive to the Company within twelve
(12) months after the termination of all proceedings, if any, which relate to such repayment and to
the Company’s
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affairs for the period prior to the date of termination of the Executive’s employment with the
Company and as to which Executive has been covered by such applicable provisions.
b. The Company specifically acknowledges and agrees that the Executive has personally
guaranteed certain obligations on behalf of the Company and further that the Executive is
personally liable for certain obligations of the Company. The Company shall indemnify and hold the
Executive harmless from any and all obligations that the Executive may incur, including, without
limitation, costs and attorneys fees in connection with such guaranties or personal liabilities.
Any costs or expenses that may be incurred by the Executive in connection with such liabilities or
guaranties shall be reimbursed to the Executive, upon receipt by the Company of documented evidence
of such liabilities, within three (3) business days of the receipt of such documented evidence.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be
made by the Company hereunder to the Executive or the Executive’s estate or beneficiaries shall be
subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as
the Company may reasonably determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations will be satisfied in
a manner complying with applicable law or regulation.
10. Notices. Any notice required or permitted to be given under the terms of this
Agreement shall be sufficient if in writing and if sent postage prepaid by registered or certified
mail, return receipt requested; by overnight delivery; by courier; or by confirmed telecopy, in the
case of the Executive to the Executive’s last place of business or residence as shown on the
records of the Company, or in the case of the Company to its principal office as set forth in the
first paragraph of this Agreement, or at such other place as it may designate.
11. Waiver. Unless agreed in writing, the failure of either party, at any time, to
require performance by the other of any provisions hereunder shall not affect its right thereafter
to enforce the same, nor shall a waiver by either party of any breach of any provision hereof be
taken or held to be a waiver of any other preceding or succeeding breach of any term or provision
of this Agreement. No extension of time for the performance of any obligation or act shall be
deemed to be an extension of time for the performance of any other obligation or act hereunder.
12. Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and contemporaneous agreements or
understandings among the parties hereto concerning the employment of the Executive and the matters
set forth herein. This Agreement may be amended, modified, superseded or canceled, and any of the
terms, covenants, representations, warranties or conditions hereof may be waived, only by a written
instrument executed by the parties or, in the case of a waiver, by the party to be charged.
13. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute but one agreement.
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14. Binding Effect/Assignment. This Agreement shall be binding upon the parties
hereto, their heirs, legal representatives, successors and assigns. This Agreement shall not be
assignable by the Executive but shall be assignable by the Company in connection with the sale,
transfer or other disposition of its business or to any of the Company’s affiliates controlled by
or under common control with the Company.
15. Governing Law. This Agreement shall become valid when executed and accepted by
Company. The parties agree that it shall be deemed made and entered into in the State of Michigan
and shall be governed and construed under and in accordance with the laws of the State of Michigan.
Anything in this Agreement to the contrary notwithstanding, the Executive shall conduct the
Executive’s business in a lawful manner and faithfully comply with applicable laws or regulations
of the state, city or other political subdivision in which the Executive is located.
16. Further Assurances. All parties hereto shall execute and deliver such other
instruments and do such other acts as may be necessary to carry out the intent and purposes of this
Agreement.
17. Headings. The headings of the sections are for convenience only and shall not
control or affect the meaning or construction or limit the scope or intent of any of the provisions
of this Agreement.
18. Survival. Any termination of this Agreement shall not, however, affect the
ongoing provisions of this Agreement which shall survive such termination in accordance with their
terms.
19. Severability. The invalidity or unenforceability, in whole or in part, of any
covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase
or word or of any provision of this Agreement shall not affect the validity or enforceability of
the remaining portions thereof.
20. Enforcement. Should it become necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the successful party will be awarded
reasonable attorneys’ fees at all trial and appellate levels, expenses and costs.
21. Venue. Company and Employee acknowledge and agree that Berrien County, Michigan,
shall be the venue and exclusive proper forum in which to adjudicate any case or controversy
arising either, directly or indirectly, under or in connection with this Agreement and the parties
further agree that, in the event of litigation arising out of or in connection with this Agreement
in these courts, they will not contest or challenge the jurisdiction or venue of these courts.
22. Construction. This Agreement shall be construed within the fair meaning of each
of its terms and not against the party drafting the document.
Employment Agreement_(Xxxxx)
13
THE EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS ENTIRE AGREEMENT, HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WITH HIS COUNSEL AND FURTHER ACKNOWLEDGES THAT HE UNDERSTANDS THE RESTRICTIONS, TERMS
AND CONDITIONS IMPOSED UPON THE EXECUTIVE BY THIS AGREEMENT AND UNDERSTANDS THAT THESE
RESTRICTIONS, TERMS AND CONDITIONS MAY BE BINDING UPON THE EXECUTIVE DURING AND AFTER TERMINATION
OF THE EMPLOYMENT OF THE EXECUTIVE.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date set forth below.
| Witness: | The Company: | |||||||
| EXPRESS-1 EXPEDITED SOLUTIONS, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Its: | ||||||||
| Witness: | The Executive | |||||||
| Xxxxx Xxxxx | Date | |||||||
Employment Agreement_(Xxxxx)
14
