Exhibit 10.04
EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is made and entered into effective
November 15, 2003 by and between Velocity Express, Inc., hereinafter referred to
as "the Company" or "Velocity", and Xxxxxx Xxxxxxxxxx, hereinafter referred to
as "Employee".
Article 1. Employment and Term
1.01. Velocity hereby agrees to employ Employee in the capacity of VP &
General counsel and Employee hereby accepts and agrees to such employment from
and after the date of this agreement, on the terms and conditions of this
agreement. Subject to the termination provisions herein, the term of this
agreement will be for two years from the date hereof and will be renewed only at
the discretion of Velocity.
1.02. Employee shall generally have the authority, responsibilities, and
perform such duties as are customarily performed by VP and General Counsel in
other or similar businesses as that engaged in by Velocity. Employee shall also
render such additional services and duties as may be reasonably requested of him
from time to time by Velocity.
1.03. Employee shall report to [stated position] and/or the person
designated by the Company's CEO and/or President. Velocity retains the
discretion to transfer or reassign Employee to another Employee position or to
other Employee duties and any such transfer or reassignment shall not affect the
enforcement of this Agreement.
Article 2. Best Efforts
2.01. Employee agrees that he will at all times faithfully, industriously,
and to the best of his ability, experience, and talents, perform all of the
duties that may be required of and from him pursuant to the express and implicit
terms of this Agreement, to the reasonable satisfaction of Velocity.
Article 3. Employment at Will
3.01. This Agreement is not an employment agreement for any specific term.
Employee acknowledges and agrees that employment with the Company is not for any
specific period of time and he has the right to resign from such employment at
any time he desires. The Employee further acknowledges and agrees that the
Company similarly has the right to terminate the employment relationship at any
time it desires to do so, with or without cause and with or without notice,
subject only to the severance provisions herein.
Article 4. Compensation and Benefits
4.01. Employee will be paid a bi-weekly base salary of $8,653.85 Dollars
($225,000), pursuant to Velocity's normal payroll procedures and dates. Any
increase in Employee's base salary shall be made within Velocity's sole judgment
and discretion.
4.02. Employee shall be eligible to receive such fringe benefits as are,
and may be, made available to other employees of Velocity from time to time in
the exclusive discretion of Velocity's Board of Directors. Such benefits may
include, but are not limited to, a medical and dental plan, short-term
disability plan, long term disability plan, and a life insurance plan. Velocity
is not obligated to provide or continue any of these benefits and may, without
any prior notice, discontinue
any benefit already provided or as may be provided in the future, within the
exclusive discretion of the Company's Board of Directors.
Article 5. Vacation and Leave
5.01. Employee is entitled to paid vacation per year consistent with the
Company's policy for other employees, in addition to Velocity's normal holidays.
Vacation time will be scheduled taking into account the Executive's duties and
obligations at Velocity. Sick leave, holiday pay and all other leaves of absence
will be in accordance with Velocity's stated personnel policies.
Article 6. Termination
6.01. Employee may resign his position and terminate his/her employment by
giving Velocity 60 days written notice of his intention to resign. Velocity may,
at its option, waive the remaining notice period and terminate Employee
immediately without any notice period or severance obligations. If requested by
the Company, Employee agrees to cooperate in training his successor until his
actual termination. In the event of such resignation, Employee shall receive
only that compensation earned through his last day of employment; provided,
however, that in the event Employee completes said training of a successor,
Employee shall be entitled to all or a portion of any bonus due Employee
pursuant to any bonus plan or arrangement established prior to termination, to
the extent earned or performed based upon the requirements or criteria of such
plan or arrangement, as the Board shall in good faith determine.
6.02. Velocity may, subject to applicable law, terminate this Agreement by
giving Employee two (2) months notice if Employee, due to sickness or injury, is
prevented from carrying out his essential job functions for a period of six (6)
months or longer. In the event of such termination, Employee shall receive only
that compensation earned through the date of termination; provided, however,
that Employee shall be entitled to all or a portion of any bonus due Employee
pursuant to any bonus plan or arrangement established prior to termination, to
the extent earned or performed based upon the requirements or criteria of such
plan or arrangement, as the Board shall in good faith determine.
6.03. Employee's employment and this Agreement will be deemed terminated
upon the death of the Employee. In the event of such termination, the Employee's
heir(s), as identified on the Employee's life insurance beneficiary card, shall
receive only compensation earned through the date of termination provided,
however, that Employee shall be entitled to all or a portion of any bonus due
Employee pursuant to any bonus plan or arrangement established prior to
termination, to the extent earned or performed based upon the requirements or
criteria of such plan or arrangement, as the Board shall in good faith
determine.
6.04. Any other provision of this Agreement notwithstanding, the Company
may terminate Executive's employment without notice if the termination is based
on any of the following events that constitute Cause:
(a) Any conviction or nolo contendere plea by Employee to a felony or
gross misdemeanor, or misdemeanor involving moral turpitude, or any
public conduct by Employee that has or can reasonably be expected to
have a detrimental effect on Velocity; or
(b) Any fraud, misappropriations or embezzlement, breach of
confidentiality, noncompetition, fiduciary duty or other obligation to
Company, by Employee or intentional material damage to the property or
business of Velocity.
In the event of such termination, and not withstanding any contrary
provision otherwise stated, Employee shall receive only his base salary earned
through the date of termination.
Article 7. Non-renewal of Contract and Severance
7.01. During the two (2) year period of this Agreement, if the Company, its
successors or assigns, terminates Executive's employment for any reason other
than those listed in Sections 6.02 and 6.03 above, the Company, its successors
or assigns, shall:
(a) pay Employee as severance pay each month for twelve (12) consecutive
months following his termination his monthly base salary in effect at
the time of separation, less customary withholdings, beginning one (1)
month after termination;
(b) if Employee timely elects to continue his group health and dental
insurance coverage pursuant to applicable COBRA/continuation law and
the terms of the respective benefit plans, pay on Employee's behalf
the premiums for such coverage for the lesser of (i) twelve (12)
months, (ii) such time as Employee's COBRA/continuation rights expire,
and (iii) the date on which Employee becomes eligible to participate
in any other health and welfare benefit program; and
(c) cause the immediate vesting of any unvested stock options or stock
grants then held by Employee.
7.02 At the termination of this Agreement, Velocity may, in its sole
discretion, extend, renew or renegotiate the Agreement. Any such renewal or
extension must be in writing.
(a) In the event that Velocity elects to not renew or extend this
Agreement, Velocity may, in it sole discretion, offer to Employee
severance for a period of up to twelve (12) month (the "Severance
Option") in exchange for Employee executing a restrictive covenant as
set forth in Exhibit A, hereto. If Velocity offers, and Employee
accepts the Severance Option, Velocity will pay each month for twelve
(12) consecutive months following Employees termination his monthly
base salary in effect at the time of separation, less customary
withholdings, beginning one (1) month after termination.
(b) In the event that Velocity does not offer Employee the Severance
Option, Employee will not be entitled to any severance or benefits.
Article 8. Nondisclosure
8.01. Except as permitted or directed by Velocity or as may be required in
the proper discharge of Executive's employment hereunder, Employee shall not,
during the Term or at any time thereafter, divulge, furnish or make accessible
to anyone or use in any way any confidential, trade secret or proprietary
information of Velocity, including without limitation, whether or not reduced to
writing, customer lists, customer files or information, planning and financial
information, contracts, sales and marketing information, business strategy or
opportunities for new or developing business, which Employee has prepared,
acquired or become acquainted with during his employment by the Company. Upon
termination of Employee's employment for any reason, Employee shall promptly
return to Velocity all such confidential, trade secret and proprietary
information, including all copies thereof, then in Executive's possession,
control or influence, whether prepared by Employee or others.
8.02. The Employee understands and agrees that any violation of this
Article 8 while employed by the Company may result in immediate disciplinary
action by Velocity, including termination of employment.
8.03. The provisions of this Article 8 shall survive termination of this
Agreement indefinitely.
Article 9. Miscellaneous
9.01. Governing Law. This Agreement shall be governed and construed
according to the laws of the State of Minnesota without regard to conflicts of
law provisions. The parties further agree that all legal actions hereunder shall
only be brought in an appropriate Minnesota court and both parties hereby
consent to such exclusive jurisdiction.
9.02. Successors. This Agreement is personal to Employee and Employee may
not assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder, to any other person or entity. This Agreement
may be assigned by Velocity and Velocity may require any successors or assigns
to expressly assume and agree to perform Velocity's obligations under this
Agreement.
9.03. Waiver. The waiver by the Company of the breach or nonperformance of
any provision of this Agreement by Employee will not operate or be construed as
a waiver of any future breach or nonperformance under any such provision of this
Agreement or any similar agreement with any other employee.
9.04. Modification. This Agreement supersedes and replaces any and all
prior oral or written understandings or agreements, if any, between the parties
relating to the subject matter of this Agreement, which are hereby revoked.
Additionally, the severance provisions of Article 7 supersede and replace all
rights Employee may otherwise have under the Company's regular severance or
termination policies. The parties agree that this Agreement (a) is the entire
understanding and agreement between the parties and (b) is the complete and
exclusive statement of the terms and conditions thereof, and there are no other
written or oral agreements in regard to the subject matter of this Agreement.
This Agreement shall not be changed or modified except by a written document
signed by the parties hereto.
IN WITNESS WHEREOF the following parties have executed the above instrument
the day and year first above written.
Velocity Express, Inc.
By:
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Employee
Exhibit A
In the event Employee is offered and accepts the Severance Option under
Article 7.02 of this Agreement, he will sign a restrictive covenant that
includes the following terms.
Restrictive Covenants
The Company and Employee recognize and agree that: (i) Employee has
received, and will in the future receive, substantial amounts of highly
confidential and proprietary information concerning the Company, its business,
customers and employees; (ii) as a consequence of using or associating himself
with the Company 's name, goodwill, and reputation, Employee will develop
personal and professional relationships with the Company 's current and
prospective customers and clients; and (iii) provision for non-competition and
non-recruitment obligations by Employee is critical to the Company 's continued
economic well-being and protection of the Company 's confidential and
proprietary business information. In light of these considerations, this section
sets forth the terms and conditions of Employee's obligations of non-competition
and non-recruitment during the Term of and subsequent to the termination of this
Agreement and/or Employee's employment for any reason.
Unless the obligation is waived or limited by the Company as set forth
herein, Employee agrees that during the term of Employee's employment pursuant
to this Agreement and for a period of twelve (12) months following termination
of Employee's employment for any reason, Employee will not directly or
indirectly (a) solicit or do competitive business with any person or entity that
is or was a customer or vendor of the Company within the twelve (12) months
prior to the date of termination, or (b) engage within the North American
markets in which the Company engages in business at the time of termination, in
any similar or related business activity in competition with the Company 's
direct line of business as conducted at the time of Employee's termination.
Among all other competitive actions that are likewise restricted, Employee shall
not cause or attempt to cause any existing or prospective customer, client or
account who then has a relationship with the Company for current or prospective
business to divert, terminate, limit or in any adverse manner modify, or fail to
enter into any actual or potential business with the Company.
At its sole option, the Company may, by express written notice to Employee,
waive or limit the time and/or geographic area in which Employee cannot engage
in competitive activity or the scope of such competitive activity.
For a period of twelve (12) months following termination of Employee's
employment for any reason, Employee will not initiate or actively participate in
any other employer's recruitment or hiring of any of the Company 's employees.
Employee agrees that breach by him of the provisions of this article will
cause the Company irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Employee of the
provisions of this article, the Company shall be entitled to an injunction
restraining Employee from directly or indirectly competing or recruiting as
prohibited herein, without posting a bond or other security. Nothing herein
shall be construed as prohibiting the Company from pursuing any other equitable
or legal remedies available to it for such breach or threatened breach,
including the recovery of damages from Employee. Employee agrees that the
Company shall be entitled to recover its costs of litigation and attorney fees
incurred in enforcing this Agreement.
The Employee understands and agrees that any violation of this article
while employed by the Company may result in immediate disciplinary action by the
Company, including termination of employment.
The obligations contained in this article shall survive the termination of
this Agreement.
