EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the ___ day of ____________, 2004, by and
between EXPRESS FREIGHT SYSTEMS, INCORPORATED, a Tennessee corporation having
its principal office located at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 (hereinafter "EFS"), and XXXX LIMERICK, SR., an individual
residing in Xxxxxxxx County, Tennessee (hereinafter "Executive").
WITNESSETH:
Concurrently with the execution and delivery of this Agreement, XRG, Inc.,
a Delaware corporation and the parent corporation of EFS ("XRG"), is purchasing
the stock of Express Freight Systems, Incorporated, a Tennessee corporation
("Stock Transaction"). Upon the consummation of the Stock Transaction, EFS
desires to employ the Executive, and the Executive wishes to accept such
employment with EFS, upon the terms and conditions set forth in this Agreement.
Accordingly, in consideration of the foregoing and the respective
covenants of the parties set forth herein, the parties, intending to be legally
bound, agree as follows:
1. Employment. EFS hereby employs the Executive and the Executive hereby
accepts employment with EFS upon the terms and conditions hereinafter set forth.
All previous employment agreements or other terms and conditions of employment
between EFS or XRG and the Executive are hereby terminated and are superseded by
this Agreement.
2. Term. Subject to the provisions of Paragraph 11 hereof, the term of the
Executive's employment by EFS under this Agreement shall commence on the date
hereof and shall continue for a term of three (3) years ("Original Term").
Expiration of the Original Term shall not prevent EFS from continuing the
Executive's employment beyond such expiration on such terms as may be mutually
satisfactory to EFS and the Executive. The term of the Executive's employment
hereunder, including any extension beyond the Original Term, is hereinafter
referred to as the "Employment Period."
3. Duties. The Executive shall be employed in the capacity of President of
EFS and shall have such duties as are assigned or delegated to him from time to
time by the Board of Directors of EFS. At all times during the Employment
Period, at least one member of the Board of Directors shall be designated by
Xxxx Limerick, Sr., who at his option, may serve in a non-voting advisory
capacity. The Executive shall devote such time and attention during normal
business hours to the business of EFS as determined by the Board of Directors of
EFS. Nothing herein, however, shall prevent the Executive from engaging in
additional activities in connection with personal investments and community
affairs that do not interfere or conflict with his duties hereunder.
4. Base Compensation. The Executive shall be paid a salary at an annual
rate of Two Hundred Fifty Thousand Dollars ($250,000) (the "Base Compensation")
during the Original Term, which shall be payable in installments in accordance
with EFS's customary payroll practices, but no less frequently than monthly.
Executive's Base Compensation shall be subject to adjustment on an annual basis
as reasonably determined by the Board of Directors of EFS, taking into
consideration cost of living adjustments in the market, Executive's performance,
and other factors
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as deemed appropriate by the Board of Directors. The salary to be paid during
any extension of the Employment Period beyond the Original Term will be as
agreed to by EFS and the Executive.
5. Quarterly Bonus. The Executive shall be entitled to participate in a
quarterly bonus program. The quarterly bonus program is described in Exhibit A.
6. Stock. At the closing of the Stock Transaction, as more particularly
set forth in the stock option plan attached hereto as Exhibit B, XRG agrees to
issue to Executive a total of One Million Seven Hundred Fifty Thousand
(1,750,000) shares of XRG common stock (the "Stock Grant").
In addition to the Stock Grant, the Executive will be entitled to acquire
shares of XRG common stock pursuant to a stock option plan in the form attached
hereto as Exhibit B which has been developed by XRG and its legal counsel and
approved by Executive and which will be implemented and administered by XRG.
7. Automobile Expense Allowance. During the Employment Period, EFS shall
pay to the Executive an automobile expense allowance of $750 per month, which
shall be paid to Executive on the first business day of each month. This amount
covers automobile purchase or lease payments and automobile insurance payments.
8. Expenses. Subject to compliance by the Executive with such policies
regarding expenses and expense reimbursement as may be adopted from time to time
by EFS, the Executive is authorized to incur reasonable expenses in the
performance of his duties hereunder in furtherance of the business and affairs
of EFS and EFS will reimburse the Executive for all such reasonable expenses, in
all cases upon the presentation by the Executive of an itemized account
satisfactory to EFS in substantiation of such expenses.
9. Vacations. The Executive shall be entitled to paid vacations in
accordance with the policies of EFS in effect, from time to time, as determined
by the Board of Directors of EFS; but in any event, Executive shall be entitled
to not less than two (2) weeks per year of paid vacation.
10. Other Employee Benefits. The Executive shall, during the Employment
Period, be eligible to participate in such pension, profit sharing, bonus, life
insurance, disability insurance, hospitalization and medical and other employee
benefit plans of EFS which may be in effect from time to time and generally made
available to executive employees of EFS and/or XRG (including without
limitation, holiday pay, sick leave and personal leave) to the extent he is
eligible under the terms of those plans; provided, however, that the allocation
of benefits under any bonus or other plan which provides that allocations
thereunder shall be in the discretion of the Board of Directors of EFS shall be
as reasonably determined from time to time solely by the Board of Directors.
11. Termination.
(a) The Employment Period, the Executive's compensation and any and all
other rights of the Executive under this Agreement or otherwise as an employee
of EFS shall terminate (except as to compensation and rights accrued prior to
the effective date of such termination): (i) upon the death of the Executive;
(ii) upon fourteen (14) days prior written notice by EFS to Executive in the
event of the physical or mental disability of the Executive (as defined in
Paragraph 11(b) below); (iii) for Cause (as defined in Paragraph 11(c) below),
immediately upon
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the giving of written notice thereof by EFS to the Executive, or at such later
time as such notice may specify; or (iv) without Cause at any time after the
initial one-year term hereof, upon not less than sixty (60) days' prior written
notice by either the Executive or EFS to the other party and subject to
Paragraph 11(d) below.
(b) For purposes of this Agreement, the Executive shall be deemed to have
a "physical or mental disability" if for medical reasons he has been unable to
perform his duties for ninety (90) consecutive days or one hundred eighty (180)
days in any 12-month period, all as determined in good faith by two physicians
mutually acceptable to Executive (or his representative) and the Board of
Directors of EFS.
(c) For purposes of this Agreement, the term "Cause" shall be deemed to
mean the Executive's conviction of a felony crime, the Executive's commission of
any act of willful misconduct or dishonesty which may have a material adverse
financial impact on the business of EFS, or the material breach of any provision
of this Agreement by the Executive which is not cured within thirty (30) days
after written notice to Executive.
(d) In the event the Employment Period is terminated by EFS for any reason
other than for Cause or for the death or the physical or mental disability of
the Executive, EFS shall pay to the Executive, as EFS's sole and exclusive
obligation related to such termination, the compensation and annual bonuses
provided for in this Agreement for the remainder of the Original Term. The
Executive shall also be entitled to a continuation of medical and life insurance
benefits, on the same terms and conditions as existed immediately prior to such
termination, for the remainder of the Original Term.
(e) Executive may terminate his employment for good reason. For purposes
of this Agreement, "good reason" shall mean a failure by EFS to comply with any
material provision of this Agreement, which failure is not cured within fourteen
(14) days after a written notice of noncompliance has been given by Executive to
EFS, provided that the foregoing notice and cure provisions shall not apply to
any failure by EFS to comply with its payment obligations hereunder.
12. Non-Disclosure Covenant. The Executive acknowledges that (i) during
the Employment Period and as a part of his employment, the Executive will be
afforded access to Confidential Information (as hereinafter defined); (ii)
public disclosure of Confidential Information could have a material adverse
impact on XRG, on EFS or on the other subsidiaries of XRG (hereinafter "XRG
COMPANIES") and their respective businesses; (iii) the Executive possesses
substantial knowledge, expertise and skill with respect to the business of the
XRG Companies; and (iv) XRG has required the Executive to make the covenants set
forth in this Section 12 as a condition to its purchase of the stock of Express
Freight Systems, Incorporated and Freeway Systems, Incorporated and the
Executive is willing to do so. The Executive acknowledges that the provisions of
this Section 12 are reasonable and necessary with respect to the use of
Confidential Information.
As used in this Agreement, the term "Confidential Information" shall mean
inventions and improvements, ideas, plans, processes, techniques, technology,
customer lists, business methods, trade secrets as defined under applicable law,
and other information developed or acquired by or on behalf of the XRG Companies
which relate to or affect any aspect of the business of the XRG Companies.
Confidential Information shall not include information that becomes generally
known to the public through no act of Executive in breach of this Agreement
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In consideration of the foregoing and of continued employment of the
Executive by EFS and the compensation and benefits paid or provided, and to be
paid or provided, to the Executive by EFS, the Executive hereby covenants and
agrees as follows:
Both during and after the Employment Period, the Executive shall not,
without EFS's prior written consent, disclose to any third party, or use for any
purpose other than for the exclusive benefit of the XRG Companies, any
Confidential Information.
The Executive agrees that disclosures made by the XRG Companies to
governmental authorities, to their customers or potential customers, to their
suppliers or potential suppliers, to their employees or potential employees, to
their consultants or potential consultants or disclosures made by the XRG
Companies in any litigation or administrative or governmental proceedings shall
not mean that the matters so disclosed are available to the general public.
The Executive shall not remove from the premises of the XRG Companies,
except when appropriate to the pursuit of their business, any document, record,
notebook, plan, model, component, or device. The Executive recognizes that, as
between the XRG Companies and the Executive, all such documents, records,
notebooks, plans, models, components or devices, whether or not developed by the
Executive, are the exclusive property of the XRG Companies. In the event of
termination of the Executive's employment with EFS, or upon the earlier request
of any of the XRG Companies during the Employment Period, the Executive shall
return to the XRG Companies all documents, records, notebooks, plans, models,
components, and devices in the Executive's possession or subject to the
Executive's control. The Executive shall not retain any copies, abstracts,
sketches or other physical embodiment of any such document, record, notebook,
plan, model, component or device.
13. Covenant Not to Compete; Non-Interference.
(a) The Executive acknowledges that the services to be performed under
this Agreement are of a special character, that the businesses of the XRG
Companies are national in scope, that their services are marketed throughout the
United States, and that the XRG Companies compete with other organizations that
are or could be located in any part of the United States. The Executive further
acknowledges that XRG requires the Executive to agree to the provisions of this
Section 13 as a condition to its purchase of the stock of Express Freight
Systems, Incorporated. In consideration of the foregoing, and in consideration
of his continued employment by EFS, the Executive hereby covenants and agrees
that during Executive's employment with EFS, and for a period of two (2) years
following any termination of Executive's employment hereunder (other than
termination by Executive under Section 11(e) which shall not trigger the
following), Executive agrees that he shall not:
(i) whether for the Executive's own account or for the account of any
other person, solicit the business of any person or entity known by the
Executive to be a customer of the XRG Companies, whether or not the Executive
had personal contact with such person or entity during his employment with EFS;
and
(ii) whether for the Executive's own account or the account of any other
person, solicit, employ or otherwise engage as an employee, independent
contractor or otherwise, any person who is or was an employee of any of the XRG
Companies during the Executive's Employment Period, or in any manner induce or
attempt to induce any employee of any of the XRG Companies to terminate his/her
employment with such company.
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It is understood by and between the parties hereto that the foregoing
covenants by the Executive set forth in this Section 13 are essential elements
of this Agreement and that but for the agreement of the Executive to comply with
such covenants, EFS would not have entered into this Agreement. EFS and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the businesses conducted by the
XRG Companies.
(b) Notwithstanding any provision of this Agreement to the contrary, the
restrictions set forth in Section 13 hereof shall not apply and shall
immediately terminate without the further action of either party (1) in the
event that EFS terminates the Employment Period during the Original Term for any
reason other than for Cause or the physical or mental disability of the
Executive, (2) in the event Executive terminates the Employment Period during
the Original Term for good reason, (3) upon the occurrence of an event of
default under that certain Stock Pledge Agreement of even date herewith by and
among the Company, EFS and Executive, or (4) upon the occurrence of an event of
default under that certain Security Agreement of even date herewith by and among
the Company, EFS and Executive.
(c) Notwithstanding that the Executive's employment hereunder may expire
or be terminated as provided in Section 11 hereof, this Agreement shall continue
in full force and effect insofar as is necessary to enforce the covenants and
agreements of the Executive contained in Section 13.
14. Injunctive Relief. The Executive acknowledges that the damages that
would be suffered by the XRG Companies as a result of a breach of the provisions
of Section 12 or 13 of this Agreement may not be calculable, and that an award
of a monetary judgment to any of the XRG Companies for such a breach would be an
inadequate remedy. Consequently, any of the XRG Companies shall have the right,
in addition to any other rights it may have, to obtain, in any court of
competent jurisdiction, injunctive relief to restrain any breach or threatened
breach hereof or otherwise to specifically enforce any of the provisions of this
Agreement and such company shall not be obligated to post bond or other security
in seeking such relief.
15. Definition of "person." The term "person" shall mean any individual,
corporation, firm, association, partnership, limited liability company or other
legal entity or other form of business organization.
16. Compliance with Other Agreements. The Executive represents and
warrants that the execution and delivery by the Executive of this Agreement and
the performance by the Executive of his obligations hereunder will not, with or
without the giving of notice or the passage of time, or both, (i) violate any
judgment, writ, injunction or order of any court, arbitrator or governmental
agency applicable to the Executive; or (ii) conflict with, result in the breach
of any provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which he is or may be bound.
17. Waiver of Breach. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
18. Binding Effect; Benefits. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors, assigns, heirs and legal representatives, including, without
limitation, any entity with which EFS may merge or consolidate
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or to which it may transfer all or substantially all of its assets. Insofar as
the Executive is concerned, this Agreement, being personal, may not be assigned.
19. Notices. All notices and other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or three (3) days after being
mailed by registered or certified first class mail, postage prepaid.
20. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be changed orally, but only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge is sought.
21. Severability. If any provision or provisions of this Agreement shall
be declared invalid or unenforceable, any such provision or provisions shall be
deemed severed from the remainder of the provisions contained herein which shall
otherwise remain in full force and effect.
22. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without giving effect to the principles of conflicts of law thereof. The
Executive hereby submits to the jurisdiction and venue of the Circuit Court of
the State of Florida for the County of Hillsborough or the United States
District Court for the Middle District of Florida, Tampa Division, for purposes
of any legal action initiated by EFS against Executive relating hereto, and EFS
hereby submits to the jurisdiction and venue of the courts of Xxxxxxxx County,
Tennessee or the United States District Court for the Eastern District of
Tennessee, for purposes of any legal action initiated by Executive against EFS
relating hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date above first written.
EXPRESS FREIGHT SYSTEMS, INC. EXECUTIVE:
a Tennessee corporation
By: __________________________ ________________________________
Title: _______________________
Attachment:
Exhibit A - Description of Express Freight Systems Quarterly Bonus Program
Exhibit B - Description of XRG, Inc. Stock Option Plan
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CORPORATE GUARANTY OF XRG, INC.
Date:________________, 20___
To induce _______________ (the "Executive") to enter into the foregoing
Employment Agreement with Express Freight Systems, Inc. ("EFS"), the
undersigned, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, does hereby guarantee to Executive and his
successors and assigns, the due regular and punctual payment of any sum or sums
of money which EFS may owe to Executive now or at any time hereafter, and does
hereby further guarantee to Executive, and his successors and assigns, the due,
regular and punctual performance of any other duty or obligation of any kind or
character whatsoever that EFS may owe to Executive now or at any time hereafter
under the terms of the foregoing Employment Agreement (all such payment and
performance obligations being collectively referred to as "OBLIGATIONS").
Undersigned does hereby further guarantee to pay upon demand all losses, costs,
attorneys' fees and expenses that may be suffered by Executive by reason of EFS'
default or default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance and not
merely a guaranty of collection. Nothing herein shall require Executive to first
seek or exhaust any remedy against EFS, its successors and assigns, or any other
person obligated with respect to the Obligations. It is agreed that Executive
may, upon any breach or default of EFS, or at any time thereafter, make demand
upon the undersigned and receive payment and performance of the Obligations,
with or without notice or demand for payment or performance by EFS, its
successors or assigns, or any other person. Suit may be brought and maintained
against the undersigned, at your election, without joinder of EFS or any other
person as parties thereto.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) any extension, renewal, amendment, change,
waiver or other modification of the Employment Agreement; (b) the absence of, or
delay in, any action to enforce the Employment Agreement, this Guaranty or any
other document; (c) the release of, extension of time for payment or performance
by, or any other indulgence granted to EFS or any other person with respect to
the Obligations by operation of law or otherwise; (d) EFS' voluntary or
involuntary bankruptcy, assignment for the benefit of creditors, reorganization,
or similar proceedings affecting EFS or any of its assets; or (e) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
This Guaranty may be terminated upon delivery to Executive of a written
termination notice from the undersigned upon the complete discharge of all
Obligations under the Employment Agreement. However, as to all Obligations
(whether matured, unmatured, absolute, contingent or otherwise) incurred by EFS
prior to Executive's receipt of such written termination notice (and regardless
of any subsequent amendment, extension or other modification which may be made
with respect to such Obligations), this Guaranty shall nevertheless continue and
remain undischarged until all such Obligations are indefeasibly paid and
performed in full.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or resumed by Executive, all as though
such payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, Executive shall be
prohibited from exercising any of your rights or remedies against EFS or any
other person or against any property, then, as between Executive and the
undersigned, such prohibition shall be of no force and effect, and Executive
shall have the right to make demand upon, and receive payment from, the
undersigned of all amounts and other sums that would be due to Executive upon a
default with respect to the Obligations.
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Notice of acceptance of this Guaranty and of any default by EFS or any
other person is hereby waived. Presentment, protest demand, and notice of
protest, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned warrants that it has adequate means to obtain from EFS on a
continuing basis financial data and other information regarding EFS and is not
relying upon Executive to provide any such data or other information. Without
limiting the foregoing, notice of adverse change in EFS' financial condition or
of any other fact that might materially increase the risk of the undersigned is
also waived. All settlements, compromises, accounts stated and agreed balances
made in good faith between EFS, its successors or assigns, and Executive shall
be binding upon and shall not affect the liability of the undersigned.
This Guaranty and each of its provisions may only be waived, modified,
varied, released, terminated or surrendered, in whole or in part, by a duly
authorized written instrument signed by Executive. No failure by Executive to
exercise your rights hereunder shall give rise to any estoppel against
Executive, or excuse the undersigned from performing hereunder. This Guaranty
shall bind the undersigned's successors and assigns and the benefits thereof
shall extend to and include your successors and assigns. The undersigned hereby
submits to the jurisdiction and venue of the courts of Xxxxxxxx County,
Tennessee or the United States District Court for the Eastern District of
Tennessee, for the purposes of any legal action initiated by Executive against
the undersigned relating hereto. If any provisions of this Guaranty are in
conflict with any applicable statute, rule or law, then such provisions shall be
deemed null and void to the extent that they may conflict therewith, but without
invalidating any other provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he has
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
XRG, INC.
By: ________________________________
(Signature)
Name: ______________________________
Title: _____________________________
ATTEST:
___________________________
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EXHIBIT A
EXPRESS FREIGHT SYSTEMS QUARTERLY BONUS PROGRAM
Each employee participant in the EFS quarterly bonus program shall be entitled
to receive, on a quarterly basis, a payment equal to a certain percentage of the
"bonus pool" as defined below. The percentage amount for each employee shall be
determined by the company's board of directors on an annual basis.
The EFS bonus pool shall be determined on a calendar quarter basis, starting
with the first calendar quarter (plus any initial stub period) after the Closing
date, and shall be the amount (if any) by which the total operating expenses for
such quarter are less than 85% of the total gross freight revenue billed by EFS
for such quarter, plus 89% of all freight brokerage revenue billed by EFS for
such quarter. If in any one quarter the calculation is negative no bonus will be
earned, and the negative amount will be carried forward to future quarters until
it is exhausted.
The following items are included in determining quarterly operating expense:
Wages and salaries of all drivers, maintenance, dispatch, sales, and all
other operations personnel designated at the start of each quarter
Office space and office equipment rental related to dispatch or
operations;
Depreciation on assets used in dispatch or operations;
Office supplies and equipment related to dispatch or operations;
Utilities related to dispatch or operations;
Debt service interest, depreciation, or lease payments on transportation
equipment;
Payments to owner/operators;
Licenses and permits, and any other costs related to the transportation
equipment;
Professional fees, consultant fees related to dispatch or operations;
Telephone, fax and broadband lines related to dispatch or operations;
Travel and lodging costs related to dispatch, sales or operations;
Dispatch, sales, or operations employee automobile expenses, medical and
benefit expenses, payroll taxes, and other employee related costs;
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A chart of accounts will be developed which will categorize expenses into
transportation costs, or sales, and dispatch costs. All expenses used in
calculating the bonus pool will be recorded in one of these two categories.
Gross revenue will include all revenue invoiced by the company for freight
movements, including brokerage freight. The bonus pool will consist of 85% of
all freight revenue and an additional 75% of gross profit on brokerage revenue
after paid transportation.
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EXHIBIT B
XRG, INC. STOCK OPTION PLAN
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