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EXHIBIT 10.10
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of June, 1995, is made by and among
XXXXXXX X. XXXXXXXXX, a resident of the State of Texas ("Executive"); and XXXX
VII LOGISTICS, A DIVISION OF XXXX VII TRANSPORTATION CO., INC., a Delaware
corporation ("Employer"), a wholly owned subsidiary of XXXX VII, INC., a
Missouri corporation ("Xxxx VII").
RECITALS
A. Employer, Xxxx VII, and it's subsidiaries, are engaged in the business
of freight transportation services, both providing and arranging
transportation of goods. Subsequent references to Employer herein shall be
deemed to also include Xxxx VII and its subsidiary corporations.
B. Executive desires to continue to be employed by Employer as President
of its Xxxx VII Logistics Division and Employer desires to employ Executive in
such capacity under the terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and other good and valuable consideration, sufficiency of
which is hereby acknowledged by Executive and Employer, the parties agree as
follows:
1. EMPLOYMENT AND TERM OF EMPLOYMENT.
Employer hereby employs Executive and Executive hereby accepts employment
with Employer until terminated as provided in Section 5.
2. DUTIES AND AUTHORITY.
2.01 DUTIES AND POSITION OF EXECUTIVE. Executive shall undertake and
assume the responsibility for those duties that Employer's Board of Directors
shall, from time to time, assign to Executive. Executive's principal duties as
of the date of this Agreement shall be and are those typically performed by a
President of an operating division.
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Executive shall, at all times, faithfully and to the best of his ability,
experience and talents, perform the duties set forth herein or to which
Executive may, in the future, be assigned, always acting solely in the best
interests of the Employer.
2.02 BUSINESS UNITS/PROFIT CENTERS ASSIGNED TO EXECUTIVE.
(a) Executive shall have specific profit/loss management responsibility
for profit centers or business units which are, from time to time, assigned to
him by the Chairman or the Board of Directors of Xxxx VII subject to
Executive's consent. Once so assigned and accepted, a profit center may not be
reassigned or withdrawn from the scope of Executive's management responsibility
without his consent.
(b) All business opportunities arising out of or related to logistics
and/or transportation services which are encountered or developed by Executive
belong to Xxxx VII. In each instance, the Board or senior management or Xxxx
VII shall determine whether or not the business opportunity or venture shall be
pursued, and if so, under what terms and conditions and whether or not it is to
be assigned to the management supervision of Executive pursuant to this
agreement.
(c) Each business opportunity, profit center or business unit will be
conducted pursuant to an annual business plan approved by the Board or senior
management of Xxxx VII. Following any month when plan results are not being
attained, Xxxx VII has the unilateral right to discontinue the business unit,
profit center or venture with no further claim of interest on the part of
Executive.
2.03 OTHER EMPLOYEES OR AGENTS OF XXXX VII. Executive has no authority to
engage or employ other agents or employees of Employer, Xxxx VII or any of its
subsidiaries without the advance express consent of the Board of Employer.
Executive may not elect, without advance approval of senior management of Xxxx
VII, to share his bonus with any other employee or agent of Xxxx VII. No other
agent or employee of Xxxx VII shall be permitted to utilize the business units
or profit centers assigned to the management of Executive to provide
transportation services or logistics support to customers assigned, for
commission purposes, to that employee or agent, without advance approval of
senior management of Xxxx VII.
2.04 TIME DEVOTED TO EMPLOYMENT. Executive shall devote full time and
attention to performance of assigned employment duties. Executive will not be
involved in any transportation ventures other than those of the Employer
without the advance written authorization of the Employer's Board of Directors.
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It is also understood that Executive is not hereby precluded from engaging
in limited appropriate civic, charitable or religious activities or from
devoting limited time to private investments that do not compete with the
business of Employer.
3. COMPENSATION.
During the term of this Agreement, Employer shall pay to Executive the
following compensation:
3.01 BASE SALARY. Executive shall be paid an initial base salary of One
Hundred Twenty Five Thousand Dollars and No/100 ($125,000) per year ("Base
Salary"), in equal weekly installments. The Employer's Board of Directors may
increase the salary of Executive at any time; provided, however, that the Board
may not reduce the Base Salary specified herein.
3.02 BONUS. In addition to the Base Salary, in each fiscal year
(commencing with the fiscal year ending December 31, 1995), Employer will
provide a bonus to Executive payable within 90 days following the close of
Employer's fiscal year. The annual bonus shall be an amount equal to 25% of
the pretax profit (computed on the basis of generally accepted accounting
principles consistently applied) earned by the business units and profit
centers assigned to the management responsibility of Executive. With respect
to certain business units or profit centers assigned to the management
responsibility of Executive as to which Employer pays a sales commission to
another agent or employee, including Alcoa, ACX Logistics, Coors, Golden
Aluminum and Golden Technologies, the bonus provided to Executive will be
limited to 15%.
The calculation of pre-tax profit shall incorporate the following factors:
(a) In the case of each new business unit or profit center assigned to the
management responsibility of Executive, senior management of Xxxx VII shall
determine, on a case by case basis, whether or not the start up losses, or what
portion thereof, shall be charged against pre-tax profits earned in other
business units assigned to the management supervision of Executive.
(b) In no event shall pre-tax profit include rail volume incentive credits
or credit for unbilled freight.
(c) Each unit will be charged a $7.50 administrative fee for each invoice.
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(d) Each unit will be charged interest expense on receivables at a rate
equal to the current cost of funds borrowed by Xxxx VII.
(e) All customer credit extended must have the prior written approval of
the Xxxx VII accounting office in Indianapolis. Any bad debt resulting from
unapproved credit shall be charged in full against the bonus accrual of
Executive.
(f) As to any transportation service requiring utilization of Xxxx VII
operated equipment (including power units or refrigerated trailers but
excluding dry vans), for each quarter in which weekly net operating profit from
the utilization of Xxxx VII equipment is less than $300 per unit a week the 25%
bonus will be reduced to 15%.
(g) All accounting issues or questions shall be barred on the anniversary
date of any transaction in question, subject to no further examination or
question thereafter. Any dispute as to any matter related to this contract or
the business to which it is related, between Executive and Xxxx VII, shall be
resolved by arbitration rather than judicial proceedings.
In each year pretax profit shall be reduced by the amount of the following
items:
(h) All charges of Employer to any affiliated company for services
rendered, said services to be charged at cost;
(i) Any gain on the sale, casualty or other disposition of any capital
asset of the Employer;
(j) Any other income which was not the result of ordinary operations of
the profit center or business unit.
The Board of Directors of Employer shall make the sole and final
determination of what constitutes "pre-tax profit" as defined above.
3.03 CAR ALLOWANCE. Executive shall receive $500 a month as a car
allowance, which shall constitute full reimbursement for all related costs he
incurs in operating his private automobile including insurance, fuel, oil,
filters, hoses, belts, license tags, tires and sales tax upon acquisition.
3.04 FRINGE BENEFITS/VACATION. Executive shall receive standard Xxxx VII
fringe benefits, including three (3) weeks of vacation with pay each year.
3.05 REIMBURSEMENT OF EXPENSES. Employer shall reimburse Executive for
ordinary, necessary and reasonable business expenses incurred to conduct or
promote Employer's business, including travel and entertainment, provided
Executive submits an itemization of such expenses and supporting documentation
therefor, all according to Employer's generally applicable procedures.
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4. NONDISCLOSURE AND NONCOMPETITION.
Executive hereby covenants and agrees as follows:
4.01 CONFIDENTIALITY. Executive acknowledges that as a result of his
employment by Employer, he has, in the past, used and acquired and, in the
future, will use and acquire knowledge and information used by Employer in its
business and which is not generally available to the public or to persons in
the transportation industry, including, without limitation, its future
products, services, patents and trademarks; designs; plans; specifications;
models; computer software programs; test results; data; manuals; methods of
accounting; financial information; devices; systems; procedures; manuals;
internal reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing and
contemplated products and service, except such information known by Executive
prior to his employment by Employer ("Confidential Information"). As a
material inducement to Employer to enter into this Agreement, and to pay to
Executive the compensation set forth herein, Executive agrees that, during the
term of this Agreement and subject to the provisions of section 6.05 below,
Executive shall not, directly or indirectly, divulge or disclose to any
person, for any purpose, for a period of three (3) years after the termination
of this Agreement, any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then only if use
by such person is for Employer's benefit.
4.02 COVENANT AGAINST COMPETITION. During the term of this Agreement and
subject to the provisions of section 6.05 below, for a period of three years
after the termination of this Agreement, Executive shall not have any interest,
or be engaged by, directly or indirectly, any business or enterprise that is in
the business of providing motor freight transportation services or arranging
for the transportation of goods, including any business that acts as a licensed
property broker or shipper's agent, which is directly competitive with any
aspect of the business Employer now conducts or which Employer is conducting or
is in the process of developing at the time of any competitive actions by
Executive ("Prohibited Activity") except to the extent provided in section 2.
For purposes of this Section 4.02, Executive shall be deemed to have an
"interest in or be engaged by a business or enterprise" if Executive acts (a)
individually, (b) as a partner, officer, director, shareholder, employee,
associate, agent or owner of any entity or (c) as an advisor, consultant,
lender or other person related, directly or indirectly, to any business or
entity that is engaging in, or is planning to engage in, any Prohibited
Activity. Ownership of less than five percent (5%) of the outstanding capital
stock of a publicly traded entity that engages in any Prohibited Activity shall
not be a violation of this Section 4.02.
4.03 EMPLOYMENT OF OTHER EMPLOYEES BY EXECUTIVE. During the term of this
Agreement and, subject to the provisions of section 6.05 below, for a period
of three (3) years after the termination of this Agreement, Executive shall
not directly or indirectly solicit
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for employment, or employ, except on behalf of Employer, any person who was
an employee of Employer at any time during the six (6) months preceding such
solicitation or employment.
4.04 JUDICIAL AMENDMENT. If a court of competent jurisdiction determines
any of the limitations contained in this Agreement are unreasonable and may not
be enforced as herein agreed, the parties hereto expressly agree this Agreement
shall be amended to delete all limitations judicially determined to be
unreasonable and to substitute for those limitations found to be unreasonable
the maximum limitations such court finds to be reasonable under the
circumstances.
4.05 IRREPARABLE INJURY. Executive acknowledges that his abilities and
the services he will provide to Employer are unique and that his failure to
perform his obligations under this Section 4 would cause Employer irreparable
harm and injury. Executive further acknowledges that the only adequate remedy
is one that would prevent him from breaching the terms of Section 4. As a
result, Executive and Employer agree that Employer's remedies may include
preliminary injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by Executive.
Nothing contained in this Section 4.05 shall prohibit Employer from seeking and
obtaining any other remedy, including monetary damages, to which it may be
entitled.
5. TERMINATION.
5.01 EVENTS CAUSING TERMINATION. This Agreement shall terminate upon the
first of the following events to occur:
a) Subject to the provisions of Paragraphs 5.02(c) and 6.02, the term of
employment hereunder shall lapse at such time as either the Employer or
Executive provides the other with 30 days notice of termination;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined in section
5.02 (a) below, effective on the day Executive receives notice from Employer
that it is exercising its option granted by this Section to terminate this
Agreement;
d) On the day Executive receives written notice from Employer that
Executive's employment is being terminated for cause, as defined in section
5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from Employer
specifying any act of insubordination or failure to comply with any
instructions of Employer's Board of Directors or any act or omission that
Employer's Board of Directors believes, in good faith, materially does, or may,
adversely affect Employer's business or operations provided Executive fails to
remedy or cease said acts within said fifteen (15) day period;
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f) On the date Executive resigns or, at the Employer's option, the date
Executive commits any act that is a material breach of this Agreement;
g) At Executive's option, on the date Employer commits any act that is a
material breach of this Agreement; or
h) At Employer's option, upon fulfilling the "executive buyout" provisions
of Section 5.02(c) below.
5.02 DEFINITIONS. For purposes of Section 5.01 the following definitions
shall apply:
a) "Disability" means Executive's inability, because of sickness or other
incapacity, whether physical or mental, to perform his duties under this
Agreement for a period in excess of ninety (90) substantially consecutive days,
as professionally determined by two medical doctors licensed to practice
medicine, one of which is selected by the Employer and one of which is selected
by Executive. In the event the doctors should disagree as to whether Executive
is disabled, they shall select a third licensed medical doctor to make such
termination which shall be binding on the parties hereto.
b) "Cause" means (i) a willful failure by Executive to substantially
perform his duties hereunder, other than a failure resulting from Executive's
incapacity to do so because of physical or mental illness, (ii) a willful act
by Executive that constitutes gross misconduct and which is materially
injurious to Employer, including malicious or disparaging remarks about other
Directors, Officers of Xxxx VII or its subsidiaries, (iii) Executive's
commitment of any act of dishonesty toward Employer, theft of corporate
property or unethical business conduct or (iv) Executive's conviction of any
felony involving dishonest, or immoral conduct.
c) "Executive Buyout" includes:
1. The right of Employer to terminate this agreement with no further
payment of compensation to Executive in the event the profit centers assigned
to the management responsibility of Executive fail, collectively, to earn
pre-tax profit (as defined in Paragraph 3.02 above) of $250,000 in 1995 or any
calendar year thereafter.
2. Following any calendar year in which the profit centers assigned to
Executive collectively earn pretax profit of $250,000 or more, Employer may
terminate this Agreement by paying Executive an amount equal to three times his
previous year's W-2 reported income from Employer, but in no event less than
One Million Four Hundred Thousand Dollars ($1,400,000). Such payment shall
constitute liquidated damages which Executive hereby agrees to accept as his
exclusive remedy for any breach of the obligations of the Employer hereunder
hereby waiving any right to punitive or exemplary damages.
3. In the event of termination by Employer subsequent to any year in
which profit centers assigned to Executive were, collectively profitable but
in which pretax profit of
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at least $250,000 was not attained, Employer may elect to extend provisions of
Section 4 hereof pursuant to Paragraph 6.05(b) below only by making advance
annual payments to Executive in the amount of Two Hundred Fifty Thousand
Dollars ($250,000) for the first year, Two Hundred Thousand Dollars ($200,000)
for the second year and at Two Hundred Thousand Dollars ($200,000) for the
third year.
4.
Employer retains the unilateral right to sell or terminate any business unit
assigned to the management of Executive with no further approval or subsequent
right of Executive to pretax profit bonus beyond the date of sale or
termination. Provided, however, that termination of the unit devoted to
providing service to Frito-Lay, its subsidiaries, and any other PepsiCo
affiliates assigned to Executive by Employer, will require Employer to provide
Executive with the benefit of the buyout provisions of this Subparagraph C. In
the event the business unit or profit center devoted to providing service to
Frito-Lay, its subsidiaries, or other affiliates of PepsiCo assigned to
Executive, is sold by Employer to a financially reliable purchaser, purchaser's
assumption of the buyout obligations of Employer to Executive under this
Subparagraph C will constitute full and complete satisfaction of the Employer's
obligations to Executive hereunder.
6.
PAYMENTS UPON TERMINATION.
6.01 PAYMENTS UPON EXECUTIVE'S DEATH, OR DISABILITY. Upon the termination of
this Agreement pursuant to Section 5.01 (b) (death), or Section 5.01 (c)
(disability), Employer shall pay, or cause to be paid, to Executive, his
designated beneficiary or his legal representative,
a)
the Base Salary and fringe benefits through the period ending twelve (12)
months after occurrence of the event causing termination; and
b)
all necessary, ordinary, and reasonable business expenses incurred by
Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to Executive.
6.02 PAYMENTS UPON TERMINATION FOR CAUSE, INSUBORDINATION, RESIGNATION OR
BREACH BY EXECUTIVE. Upon termination of this Agreement pursuant to Section
5.01 (d) (cause), Section 5.01 (e) (insubordination), or Section 5.01 (f)
(resignation or breach by Executive), Employer shall pay, or cause to be paid,
to Executive,
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a)
the Base Salary and fringe benefits for the period ending on the date this
Agreement is terminated pursuant to the appropriate subsection of Section 5.01;
and
b)
all necessary, ordinary, and reasonable business expenses incurred by
Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to Executive.
6.03 PAYMENTS UPON TERMINATION FOR BREACH BY EMPLOYER. Upon termination of
this Agreement pursuant to Section 5.01 (g) (Employer's breach), Employer shall
pay to Executive all of the compensation set forth in Section 3, including
bonus pursuant to Section 3.02, for twelve months subsequent to the breach.
All post-employment compensation paid by Employer under the terms of this
Section 6 shall be calculated in the manner set forth in Section 3 hereof and
shall constitute liquidated damages which Executive hereby agrees to accept as
his exclusive remedy for any breach of the obligations of the Employer
hereunder hereby waiving any right to punitive or exemplary damages.
6.04 PAYMENT OF AMOUNTS DUE UPON TERMINATION AND MITIGATION. If Executive is
entitled to payment of Base Salary, bonus, fringe benefits or business expenses
upon termination of this Agreement, Employer shall make said payments within
the ordinary course of its business and pursuant to the terms hereof. All such
payments shall be reduced by the amount of compensation earned by Executive
from any other employment.
6.05 EFFECT OF TERMINATION ON NONDISCLOSURE, NONCOMPETE AND NONSOLICITATION
PROVISIONS.
a)
All of the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) of this Agreement shall survive termination
hereof pursuant to Section 5.01 (d) (cause), Section 5.01 (e) (insubordination)
or Section 5.01 (f) (resignation) even though the remaining terms and
provisions of this Agreement shall be void, including the terms of Section 3
(compensation).
b)
Subject to Section 5.02(c)(3), upon termination of this Agreement pursuant
to Section 5.01 (a) (termination), Employer may elect to continue the
obligations of Executive set forth in Section 4 (confidentiality, noncompete
and nonemployment of other employees) for so long as the Employer continues to
provide the current base salary set forth in Section 3.01 and termination
payments of Section 5.02 (c), but not to exceed three years subsequent to
termination.
c)
Upon termination pursuant to Section 5.01 (c) (disability) the provisions of
Section 4
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(confidentiality, noncompete and nonemployment of other employees shall
survive for one year thereafter.
d)
Upon termination of this Agreement pursuant to Section 5.01 (g) (Employer
breach), all of the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) shall be void.
6.06 PROVISIONS VOID UPON TERMINATION. Except as specifically provided herein
to the contrary, all terms and provisions of this Agreement shall be void upon
any termination hereof.
7.
CONFLICT OF INTEREST.
During the term of this Agreement, Executive shall not, directly or indirectly,
have any interest in any business which is a supplier of Employer without the
express written consent of Employer's Board of Directors. Such interest shall
include, without limitation, an interest as a partner, officer, director,
stockholder, advisor or employee of or lender to such a supplier. An ownership
interest of less than five percent (5%) in a supplier whose stock is publicly
held or regularly traded shall not be a violation of this Section 7.
Executive herewith agrees to answer and execute an annual disclosure form
"Questionnaire for Directors and Executive Officers of Xxxx VII, Inc."
providing the same information that is required of all other Directors and
executive officers of Xxxx VII directed to the purpose of enabling Employer to
assess and provide disclosure of matters required of publicly held companies.
8.
INDEMNIFICATION OF EXECUTIVE.
The Employer will indemnify Executive and hold him harmless (including
reasonable attorney fees and expenses) to the fullest extent now or hereafter
permitted by law in connection with any actual or threatened civil, criminal,
administrative or investigative action, suit or proceeding in which Executive
is a party or witness as a result of his employment with the Employer. This
indemnification shall survive the termination of this Agreement.
9.
GENERAL PROVISIONS.
9.01 LOCATION OF EMPLOYMENT. Executive's principal office shall be located at
Dallas, Texas, or at such other location where Employer and Executive shall
mutually agree.
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9.02 ASSIGNMENT. Neither party may assign any of the rights or obligations
under this Agreement without the express written consent of the other party.
For purposes of the foregoing sentence, the term "assign" shall not include an
assignment of this Agreement by written agreement or by operation of law to any
of Employer's wholly owned subsidiaries.
9.03 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties' heirs, successors and assigns, to the extent allowed
herein.
9.04 SEVERABILITY. The provisions of this Agreement are severable. The
invalidity or unenforceability of any one or more of the provisions hereof
shall not affect the validity or enforceability of any other part of this
Agreement.
9.05 WAIVER. Waiver of any provision of this Agreement or any breach thereof
by either party shall not be construed to be a waiver of any other provision or
any subsequent breach of this Agreement.
9.06 NOTICES. Any notice or other communication required or permitted herein
shall be sufficiently given if delivered in person or sent by certified mail,
return receipt requested, postage prepaid, addressed to:
Employer:
Xxxx VII Logistics, a Division of
Xxxx VII Transportation Co., Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
cc:
Xxxxx X. Xxxxxx, Vice Chairman and General Counsel
Xxxx VII, Inc.
0000 Xx. Xxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
Executive:
Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
or such other address as shall be furnished in writing by any such party. Any
notice sent by the above-described method shall be deemed to have been received
on the date personally delivered or so mailed. Notices sent by any other
method shall be deemed to have been received when actually received by the
addressee or its or his authorized agent.
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9.07 APPLICABLE LAW. Except to the extent preempted by federal law, this
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Tennessee, without considering its laws or rules
related to choice of law.
9.08 JURISDICTION AND VENUE. Subject to the arbitration provision in Section
9.11 below, the parties hereby consent, and waive any objection, to the
jurisdiction of either the State or Federal Courts of Tennessee over the person
of either party for purposes of any action brought under or as the result of a
breach of this Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within the State of
Tennessee. The parties further consent that venue of any action brought under
or as the result of a breach of this Agreement shall be proper in either of the
above named courts and they each waive any objection thereto.
9.09 OWNERSHIP AND RETURN OF DOCUMENTS AND OBJECTS. Every plan, drawing,
blueprint, flowchart, listing of source or object code, notation, record,
diary, memorandum, worksheet, manual or other document, magnetic media and
every physical object created or acquired by Executive as part of his
employment by Employer, or which relates to any aspect of Employer's business,
is and shall be the sole and exclusive property of Employer. Executive shall,
immediately upon Employer's request or upon termination of this Agreement for
any reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all documents
and all original and complete or partial reproductions of all magnetic media or
physical objects owned by Employer then in Executive's possession.
9.10 ATTORNEY'S FEES. Subject to the arbitration provision in Section 9.11
below, if either party brings an action to enforce the terms hereof, the
prevailing party in such action, on trial or appeal, shall be entitled to
recover its reasonable attorney's fees, costs and expenses to be paid by the
losing party as fixed by the court.
9.11 ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
and judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE PARTIES.
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XXXX VII TRANSPORTATION CO., INC.
By: /s/ X.X. Xxxxxx
----------------------
X.X. Xxxxxx, Chairman
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxx
in his individual capacity
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ADDENDUM TO
EMPLOYMENT AND NONCOMPETE AGREEMENT
XXXXXXX X. XXXXXXXXX
THIS AGREEMENT, dated this first day of September, 1995, is made by and
among Xxxxxxx X. Xxxxxxxxx, a resident of the State of Texas ("Executive");
Xxxx VII Logistics, a division of Xxxx VII Transportation Co., Inc., a Delaware
corporation ("Employer"), a wholly-owned subsidiary of Xxxx VII, Inc., a
Missouri corporation ("Xxxx VII").
RECITALS
A. Executive, Employer and Xxxx VII, and its subsidiaries previously
entered into "Employment and Noncompete Agreement" as of June 1, 1995, of which
a true and correct copy is attached ("Agreement"). The parties hereto hereby
undertake and agree to modify said Agreement to the extent expressly stated
herein. In all other respects, said Agreement shall remain as originally
stated.
B. Changes expressed in this Addendum are occasioned by the assignment,
unto Executive, of management responsibility with respect to Honda De Mexico
("Honda") a logistics management project pertaining to the Guadalajara, Mexico
plant of the American Honda Motor Co., Inc.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and in the underlying Agreement, the parties do hereby further
agree as follows:
1. HONDA DE MEXICO.
Executive does hereby undertake and agree to execute profit and loss
management responsibility with respect to logistics management services to be
provided by Xxxx VII unto the American Honda Motor Co., Inc. with respect to
its Guadalajara, Mexico automobile production plant under the terms and
conditions set forth herein.
2. DURATION OF ASSIGNMENT.
Employer commits to Executive that his tenure of management responsibility
with respect to the Guadalajara Honda plant shall continue for three
consecutive years until August 1, 1998. Thereafter, Employer shall be at
liberty to reassign management responsibility for the Guadalajara, Mexico
Honda plant to a different manager other than Executive with no further
financial obligation to the Executive.
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3. BONUS PAYABLE TO EXECUTIVE FOR MANAGEMENT OF LOGISTICS SERVICES PROVIDED TO
THE HONDA GUADALAJARA PLANT.
Executive acknowledges that Xxxx VII attained the business opportunity to
provide logistics management services to the Guadalajara, Mexico Honda plant as
a result of sales efforts of others than Executive. Consequently, it is
expressly understood and agreed by and between the Executive and Employer that
the annual bonus to be received by Executive pursuant to Paragraph 3.02 of
"Agreement" shall be limited to 15% of the pretax profit earned by Employer as
a result of providing logistics management services to the Guadalajara plant.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the
day and year first above written..
XXXX VII TRANSPORTATION CO., INC.
By: /s/ X.X. Xxxxxx
----------------------
X.X. Xxxxxx, Chairman
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxx
in his individual capacity
