1
EXHIBIT 10.8
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, entered into on this 15th day of December, 1998, is
made by and between XXXX X. SKODA, a resident of the State of Pennsylvania
("Executive"); XXXX VII, INC., a Delaware corporation ("XXXX VII").
RECITALS
A. XXXX VII, and its 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 include XXXX
VII and also its subsidiary corporations.
B. Executive desires to be employed by Xxxx VII as its President and
Xxxx VII 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 Xxxx VII, the parties agree as follows:
1. Employment and Term of Employment.
Xxxx VII hereby employs Executive and Executive hereby accepts
employment which Xxxx VII for the term commencing on the date hereof and
continuing for a period of two (2) years subsequent to January 15, 1999, unless
sooner terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive.
(a) Executive shall undertake and assume the responsibility
for those duties that Xxxx VII's Board of Directors shall, from time to time,
assign to Executive. Executive's principal duties during the term of this
Agreement shall be and are those typically performed by the President of a
company.
(b) Upon receipt of a satisfactory performance review by the
Chairman of Xxxx VII, in December of 1999, effective January 1, 2000 the Board
shall elect and designate Executive as President and Chief Executive Officer of
Xxxx VII. It is further understood and agreed that subsequent to designation of
the Executive as Chief Executive Officer, he shall be nominated by the Board to
be elected by shareholders as a member of its Board of Directors at the next
Annual Meeting of Xxxx VII.
(c) 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 Xxxx VII.
2.02 Time Devoted to Employment. Executive shall devote full time and
attention to performance of assigned employment duties; provided, however, he
shall be allowed to also pursue those separate and personal business interests
which do not conflict or compete with the business of Xxxx VII and its
2
subsidiaries directly or indirectly and which do not require personal services
of the Executive. During the term of this Agreement, the Executive will not be
involved in any transportation ventures other than those of Xxxx VII without the
advance written authorization of Xxxx VII's Board of Directors.
It is also understood that the Executive is not hereby precluded from
engaging in limited appropriate civic, charitable or religious activities.
In the event Xxxx VII's Board of Directors shall reassign the duties of
Executive as President or Chief Executive Officer to other persons, the
Executive shall thereafter continue to serve Xxxx VII engaged in the
consultation, performance and management of those specific projects or duties to
which he is assigned by Xxxx VII and which are consistent with his experience
and competence.
3. Compensation.
During the term of this Agreement, Xxxx VII shall pay to Executive the
following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of Three Hundred Thousand Dollars and No/100 Dollars ($300,000) per year
("Base Salary") payable in equal weekly installments. The Compensation Committee
of Xxxx VII's Board of Directors ("Committee") may review Executive's
performance and adjust his Base Salary in its sole and absolute discretion. The
Committee may increase the salary of the Executive at any time; provided,
however, that the Committee may not reduce the Base Salary fixed in this
Agreement.
3.02 Bonus. In addition to the Base Salary, in each fiscal year
(commencing with the fiscal year ending December 31, 1999), Xxxx VII will
provide a bonus to Executive payable within 90 days following the close of the
Xxxx VII's fiscal year. The annual bonus shall be based upon pre-tax profit
(computed on the basis of generally accepted accounting principles consistently
applied) earned by Xxxx VII as follows:
Base Year 1999 - Pre-Tax Goal of $19,000,000.00
Year 1999
Less than base of $19,000,000 bonus earned equals 0% of base salary
More than $19,000,000 - bonus earned equals 50% of base salary
More than $19,500,000 - bonus earned equals 75% of base salary
More than $20,000,000 - bonus earned equals 100% of base salary
Year 2000
Less than 112% of 1999 actual pre-tax profit - bonus earned equals 0%
of base salary
112% or more than actual 1999 pre-tax profit - bonus earned equals 50%
of base salary
115% or more of actual 1999 pre-tax profit - bonus earned equals 75%
of base salary
120% or more of actual 1999 pre-tax profit - bonus earned equals 100%
of base salary
3
In each plan year pre-tax profit shall be adjusted by the amount of the
following items:
(a) Any gain on the sale, casualty or other disposition of any capital
asset of Xxxx VII shall be deducted;
(b) Any other income which was not the result of ordinary operations of
Xxxx VII shall be excluded;
"Pre-tax profit", as defined above shall be based upon generally accepted
accounting principles consistently applied and as finally determined by the
Company's independent CPA auditing firm.
3.03 Car Allowance. In addition, the Executive shall receive $500 a
month as a car allowance, plus the costs he incurs in operating his private
automobile with respect to insurance, fuel, oil, filters, hoses, belts, license
tags, one set of tires every four years 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. Xxxx VII shall reimburse Executive for
ordinary, necessary and reasonable business expenses incurred to conduct or
promote Xxxx VII's business, including travel and entertainment, provided
Executive submits an itemization of such expenses and supporting documentation
thereof, all according to Xxxx VII's general policy statement.
3.06 Stock Options and Stock Appreciation Rights. By separate
agreement, Xxxx VII shall provide Executive with a non-qualified option to
purchase 200,000 shares of the common stock of Xxxx VII, Inc. exercisable at a
per share price equal to the closing NASDAQ quote on the date of grant. The
option shall vest in five equal annual installments of 40,000 shares each
commencing on December 26, 1999. Each portion of the option shall be exercisable
one year subsequent to vesting and the entire option shall lapse ten years
subsequent to the effective date of the initial grant.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of his
employment by Xxxx VII, he will acquire knowledge and information used by Xxxx
VII in its business and which is not generally available to the public or to
persons in the transportation industry, including, without limitation, its
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 Xxxx VII ("Confidential Information"). As a material inducement to
Xxxx VII 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, for a period of three (3) years
after the termination of this Agreement, Executive shall not, directly or
indirectly, divulge or disclose to any person, for any purpose, any Confidential
Information, except to those persons authorized by Xxxx VII to
4
receive Confidential Information and then only if use by such person is for Xxxx
VII's benefit.
4.02 Covenant Against Competition. During the term of this Agreement
and for a period of three (3) years after the termination of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not have any
interest in or be engaged by any business or enterprise that is in the business
of providing 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 or indirectly competitive with any aspect of
the business Xxxx VII now conducts or which Xxxx VII is conducting or is in the
process of developing at the time of any competitive actions by Executive
("Prohibited Activity"). 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 for employment, or employ, except on
behalf of Xxxx VII, any person who was an employee of Xxxx VII 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 Xxxx VII are unique and that his failure to
perform his obligations under this Section 4 would cause Xxxx VII 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 Xxxx VII agree that Xxxx VII'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 Xxxx VII 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) At the end of two (2) years subsequent to February 1, 1999;
b) On the date of Executive's death;
5
c) At Xxxx VII's option, upon Executive's disability as defined in
section 5.02 (a) below, effective on the day Executive receives notice from Xxxx
VII that it is exercising its option granted by this Section to terminate this
Agreement;
(d) On the day Executive receives written notice from Xxxx VII 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 Xxxx
VII specifying any act of insubordination or failure to comply with any
instructions of the Chairman of Xxxx VII or any act or omission that the
Chairman believes, in good faith, does, or may, adversely affect Xxxx VII's
business or operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
(f) On the date Executive resigns or, at Xxxx VII's option, the date
Executive commits any act that is a material breach of this Agreement; and
(g) At Executive's option, on the date Xxxx VII commits any act that is
a material breach of this Agreement.
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 Xxxx VII and one of which is selected by
the Executive. In the event the doctors should disagree as to whether the
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 injurious to Xxxx VII,
(iii) Executive's commitment of any act of dishonesty toward Xxxx VII, theft of
corporate property or unethical business conduct or (iv) Executive's conviction
of any crime involving dishonest, or immoral conduct.
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), Section 5.01
(c) (disability), Xxxx VII shall pay, or cause to be paid, to Executive, his
designated beneficiary or his legal representative,
a) the current Base Salary as provided in Section 3.02 and fringe
benefits as set forth in Section 3.04 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.
6
c) plus in the event of death or disability, bonus pursuant to Section
3.02 pro-rated to the date of termination.
Xxxx VII 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), Xxxx VII shall pay, or cause to be paid,
to Executive,
a) the Base Salary and fringe benefits (not including bonus) 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.
Xxxx VII shall not be obligated to make any other payments to Executive.
6.03 Payments Upon Expiration of Term or Termination for Breach by Xxxx
VII. Upon termination of this Agreement pursuant to Section 5.01 (g) (Xxxx VII's
breach), Xxxx VII shall pay to Executive the Base Salary set forth in Section
3.01, through January 31, 2000 plus bonus pursuant to Section 3.02. All
compensation paid by Xxxx VII under the terms of this Section 6.03 shall be paid
in the manner set forth in Section 3.
6.04 Payment of Amounts Due Upon Termination and Mitigation. If
Executive is entitled to payment of Base Salary, fringe benefits or business
expenses upon termination of this Agreement, Xxxx VII shall make said payments
within the ordinary course of its business and pursuant to the terms hereof. All
compensation to which the Executive is entitled following termination such
payment shall be reduced by the amount of compensation earned by the Executive
from other employment.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) The provisions of Sections 4.01, 4.02 and 4.03 (confidentiality,
non-compete 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) Upon termination of this Agreement pursuant to Section 5.01 (a)
(lapse of term), Xxxx VII 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 Xxxx VII continues to provide all compensation set
forth in Section 3 (excluding bonus), but not to exceed three years subsequent
to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability) the
provisions of Section 4 (confidentiality, noncompete and nonemployment of other
employees) shall survive for one year thereafter.
7
d) Upon termination of this Agreement pursuant to Section 5.01 (g)
(Xxxx VII's breach), all of the provisions of Section 4 (confidentiality,
noncompete and nonemployment of other employees) shall be void.
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 Xxxx VII
without the express written consent of Xxxx VII'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.
8. Indemnification of Executive.
Xxxx VII will indemnify the 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 the
Executive is a party or witness as a result of his employment with Xxxx VII.
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 Memphis, Tennessee, or at such other location where Xxxx VII and
Executive shall mutually agree.
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 Xxxx VII'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:
8
Xxxx VII: X. X. Xxxxxx, Chairman
Xxxx VII, Inc.
000 X. Xxxxxxx
Xxxxxxxxx, XX 00000
cc: Xxxxx X. Xxxxxx
Vice Chairman and General Counsel
Xxxx VII, Inc.
0000 Xx. Xxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
Executive: Xxxx X. Skoda
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 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.
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 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 Xxxx VII, or which relates to any aspect of Xxxx VII's business,
is and shall be the sole and exclusive property of Xxxx VII. Executive shall,
immediately upon Xxxx VII's request or upon termination of this Agreement for
any reason, deliver to Xxxx VII 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 Xxxx VII then in Executives' possession.
9.09 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 judgement upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
9.10 Attorney's Fees. If either party initiates arbitration proceedings
to enforce the terms hereof, the prevailing party in such proceeding, on
arbitration hearing, judicial trial or appeal, shall be entitled to its
reasonable attorney's fees, costs and expenses to be paid by the losing party as
fixed by the arbitrator.
WITNESS WHEREOF, the parties have executed this Agreement on the 15th
day of January, 1999 to be effective on the day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
9
XXXX VII, INC.
By: /s/ X.X. Xxxxxx
--------------------------------------
X. X. Xxxxxx, Chairman
"EXECUTIVE"
By: /s/ Xxxx X. Skoda
--------------------------------------
Xxxx X. Skoda
