EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") dated as of
October __, 2001 is between M.G.R., Inc., a Minnesota corporation, with a place
of business at 0000 Xxxxx Xxxx, Xxxxx, Xxxxxxxxx, 00000 (the "Company"), and
Xxxxx X. Such, an individual residing at 0000 Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx
00000 (the "Executive").
RECITALS
--------
WHEREAS, the Company desires to employ Executive, and Executive desires
to be employed by the Company, upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual and
dependent promises hereinafter set forth, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged the
parties, intending to be legally bound, do hereby agree as follows:
ARTICLE 1
EMPLOYMENT AND TERM
1.1 Employment/Duties. The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment as Vice President of
Transportation Services of the Company under the terms and conditions set forth
in this Agreement. Executive shall report to the Chief Executive Officer of the
Company for the performance of his duties. Executive shall follow the
reasonable, nondiscriminatory directives of the Board of Directors of the
Company, and the policies and procedures adopted in connection therewith from
time-to-time. Executive shall have responsibility for such duties as are
customarily associated with the position of a Vice President of Transportation
Services of the Company and such other executive level duties and
responsibilities, consistent therewith and with the status of a senior level
executive of the Company, as may be assigned by the person to whom he reports as
provided herein. Executive acknowledges and agrees that the Company's
brother-sister affiliates Distribution Services, Inc. and Contract Air, Inc.
shall be operated by and through the management of the Company, including
Executive, without additional compensation therefor. During the Term (as defined
in Section 1.3 hereof), Executive shall devote substantially all of his working
time, attention and skill to the business affairs of the Company. Executive's
office will be in the Company's office located in the Dallas/Fort Worth, Texas
metropolitan area or such other office of the Company or an affiliate thereof as
is mutually acceptable to the Executive and the Company. Executive's refusal of
a proposal of relocation outside of the Dallas/Fort Worth, Texas metropolitan
area shall not be construed under this Agreement or otherwise, under any
circumstances whatsoever, as (a) a voluntary resignation, (b) Executive's
unwillingness or affirmative action or omission to follow the reasonable
directives of the Company or the person to whom he reports hereunder or (c) as a
basis of termination for "Cause."
1.2 Effective Date. Executive will commence work immediately on the
date hereof (the "Effective Date").
1.3 Term. This Agreement shall commence on the Effective Date and shall
continue until December 31, 2005 unless (a) extended pursuant to the terms
hereof of (b) earlier terminated as provided in Article 6. This Agreement may be
renewed for successive one (1) year terms upon the written consent of the
Company and Executive. The initial term through December 31, 2005 and any
renewal terms are collectively referred to as the "Term."
ARTICLE 2
COMPENSATION
2.1 Base Salary. For each twelve (12) month period during the Term of
this Agreement, the Executive shall be paid an annual base salary of no less
than Eighty-Five Thousand Dollars ($85,000) in a manner consistent (but not less
often than monthly) with the usual pay practices of the Company. Base salary
shall be subject to minimum annual cost-of-living increases of five percent (5%)
per annum, subject to the approval of the Company's President and Stonepath
Logistics, Inc.
2.2 Management Incentive Program; Bonus. The Executive shall be
entitled to participate in the Management Incentive Program which shall be
mutually agreed upon by Stonepath Group, Inc. and Shareholders' Agent (as
defined in that certain Stock Purchase Agreement dated August 30, 2001 by and
among, among others, the Company, Stonepath Group, Inc. and the Executive (the
"Stock Purchase Agreement")) and established by the Company no later than April
1, 2002. The Executive shall also be eligible to receive annual bonus
compensation at the discretion of the Company's Board of Directors in accordance
with the Company's executive bonus or incentive compensation plans that may be
in effect from time to time.
2.3 Benefits. The Executive will, during the Term, be permitted to
participate in such pension, profit sharing, bonus (subject to the provisions of
Section 2.2), life insurance, hospitalization, major medical, and other employee
benefit plans of the Company that may be in effect from time to time, to the
extent Executive is eligible under the terms of those plans. The Company may
alter, modify, add to or delete its executive benefit plans as they apply to the
Company's senior executive officers at such times and in such manner as the
Company determines appropriate, without recourse by Executive so long as such
changes are applied in a substantially uniform manner to the Company's executive
officers.
2.4 Vacation. Executive shall be entitled to receive annual vacation in
accordance with the Company's policies applicable to its senior executive
officers, which in any event shall not be less than four (4) weeks or such
greater number of weeks as may be provided to the Company's senior executives
with comparable length of service. The Executive shall also be entitled to the
paid holidays and other paid leave set forth in the Company's policies. Vacation
days during any calendar year that are not used by the Executive during such
calendar year may be used in any subsequent calendar year; provided, however,
that no more than six (6) weeks' paid vacation may be accrued or carried
forward.
2
2.5 Business Expenses. The Company shall reimburse the Executive, in
accordance with its practice from time-to-time for executive officers of the
Company, for all reasonable and necessary expenses and other disbursements
incurred by the Executive for or on behalf of the Company in the performance of
his duties hereunder. The Executive shall provide such appropriate documentation
of expenses and disbursements as may from time to time be required by the
Company from its executive officers.
2.6 Insurance. In addition to any life insurance provided by the
Company to the Executive, the Company may, at its discretion and at any time
after the Effective Date, apply for and procure, as owner and for its own
benefit, insurance on the life of the Executive, in such amounts and in such
form or forms as the Company may choose. Unless otherwise agreed, the Executive
shall have no interest whatsoever in any such policy or policies, but shall, at
the request of the Company, subject himself to such reasonable medical
examinations, supply such information and execute such documents as may be
reasonably required by the insurance company or companies to which it has
applied for such insurance. Upon termination of employment, Executive shall have
the right to take a full ownership and beneficial interest in such policies and
assume responsibility for all future payments thereunder, without compensation
to the Company for such benefit (except to the extent of any pre-paid premiums
thereunder) and the Company shall promptly, and in good faith, but subject to
any restrictions imposed by any insurer, cooperate with Executive in such
transfer of such policy or policies.
2.7 Automobile. The Company shall lease or shall reimburse the
Executive for the cost of Executive's current automobile lease. After the
expiration of such lease, the Company shall lease or shall reimburse the
Executive for the cost of leasing a new automobile mutually acceptable to
Executive and the Company and all expenses related to the use thereof for the
Executive's use during the Term of this Agreement, including but not limited to,
insurance, maintenance, repairs, mobile telephone and gasoline. Reimbursable
lease costs will not exceed Six Hundred Dollars ($600) per month or such higher
amount as may be generally provided from time to time to the Company's senior
executive officers.
ARTICLE 3
PROPRIETARY INFORMATION
3.1 Confidential and Proprietary Information. Executive acknowledges
that he is in a relationship of confidence and trust with the Company and will
come into possession of information that has been created, discovered,
developed, acquired or otherwise become known to the Company or its affiliates
(including, without limitation, information that is created, discovered,
developed, acquired or made known by Executive in the course of his employment
and information belonging to third parties) and in which the Company or its
affiliates has rights of indeterminable commercial value (all of the
aforementioned information is hereinafter collectively referred to as
"Proprietary Information"). By way of illustration, Proprietary Information
includes, but is not limited to, trade secrets, processes, formulas, data and
know-how, marketing plans, strategies, forecasts, customer lists, business
plans, financial information, and information collected from the customers of
the Company or its affiliates. Executive acknowledges that Proprietary
Information is in part set forth in the Company's manuals, memoranda,
specifications, accounting and sales records, and other documents and records of
the Company and its affiliates whether or not otherwise identified as
"Proprietary." Proprietary Information shall exclude information that has become
3
part of the public domain, except (i) when and to the extent that such public
information, when applied to or combined with other information, is non-public
and proprietary to the Company or its affiliates, or (ii) where such information
became public through unauthorized disclosure by Executive or another party
under an obligation of confidentiality to the Company or its affiliates.
Proprietary Information shall also exclude information that becomes available to
Executive on a non-confidential basis from a non-Company third party which has
not been disclosed in breach of any confidentiality agreement with the Company.
3.2 Non-Disclosure. Executive acknowledges that all Proprietary
Information shall be the sole property of the Company, its affiliates and their
successors and assigns. During the Term and for so long as the information
remains Proprietary Information, Executive agrees to keep in confidence and
trust all Proprietary Information, and not to use, disclose, disseminate,
publish, copy, or otherwise make available, directly or indirectly, except in
the ordinary course of the performance of Executive's duties under this
Agreement, any Proprietary Information except as expressly authorized in writing
by the Company; provided, however, that Executive shall be relieved of his
obligation of nondisclosure hereunder if Proprietary Information is required to
be disclosed by any applicable judgment, order or decree of any court or
governmental body or agency having jurisdiction or by any law, rule or
regulation, provided that in connection with any such disclosure, Executive
shall give the Company reasonable prior written notice of the disclosure of such
information pursuant to this exception and shall cooperate with the Company to
permit the Company to seek confidential treatment for such information from any
authority requiring delivery of such information; provided, further, however,
that if Company has not obtained such confidential treatment by the date
Executive is required by such distraint to disclose the Proprietary Information,
Executive shall be free to provide such disclosure and there shall be no
violation of or damages determined under this Agreement or otherwise for
Executive's disclosure action and compliance with or pursuant to such authority.
3.3 Return of Proprietary Information. Executive agrees that when he
ceases to be employed by the Company, whether such cessation of employment shall
be for any reason or for no reason, with or without cause, voluntary or
involuntary, or by termination, resignation, disability, retirement or
otherwise, Executive shall deliver to the Company all documents and data of any
nature owned by the Company pertaining to the Proprietary Information.
ARTICLE 4
[INTENTIONALLY OMITTED]
ARTICLE 5
INDEMNIFICATION
5.1 Indemnification of Executive. The Company agrees to indemnify
Executive in connection with the performance of his duties and obligations
hereunder to the maximum extent permitted by applicable law. In addition,
expenses of defense which may be indemnifiable under applicable law shall be
paid by the Company in advance of the final disposition of a proceeding,
provided that Executive agrees to repay such amount if he is later found not
4
entitled to be indemnified as authorized by applicable law. As a condition to
the Company's obligation of indemnification hereunder, Executive shall provide
the Company with written notice of any claim for which indemnification will be
sought as promptly as practicable after learning thereof, stating the identity
of the claimant, the nature and basis of the claim and the amount thereof, and
copies of all notices and documents received by Executive in connection with the
claim. Thereafter, as a condition of the Company's obligation of
indemnification, Executive shall cooperate in the defense of the claim by the
Company, and shall provide the Company with all additional information and
copies of documents received by him, or otherwise in his possession, related to
the claim. The Company will promptly assume the defense of a claim against
Executive, unless the claim is properly determined by the Company not be
indemnifiable under this Agreement or applicable law. Executive may challenge
the Company's determination as to the indemnifiable nature of the claim and
during the pendency of such challenge, the Company shall provide such defense at
its expense provided that Executive provides a written agreement, reasonably
satisfactory to the Company, obligating Executive to reimburse all costs and
expenses incurred by the Company in the event the Company's determination as to
the unindemnifiable nature of the claim is upheld. Except as otherwise provided
herein, the Company will defend Executive at the Company's sole cost and expense
utilizing counsel of the Company's choice, reasonably acceptable to Executive.
Executive may also participate in the defense utilizing his own counsel at
Executive's sole expense. In the event the Company does not assume the defense
of Executive as required herein, Executive may assume such defense by written
notice to the Company and the Company shall be obligated to advance Executive's
reasonable costs and expenses of counsel reasonably acceptable to the Company,
and the action (including experts), subject to Executive's contingent obligation
to repay such expenses if the claim is not indemnifiable. Executive will not
independently consent to the settlement of any claim without the prior written
consent of the Company, which will not be unreasonably withheld. The Company
will not independently consent to the settlement of any claim without
Executive's prior written consent which will not be unreasonably withheld.
ARTICLE 6
TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS
6.1 Events of Termination by the Company.
(a) Death or Disability. In the event Executive dies or
becomes permanently disabled during the term of this Agreement, his
employment hereunder shall automatically terminate. In such case, the
Company shall pay to Executive or his estate, personal representative
or beneficiary, as the case may be, such amounts as may be payable to
Executive pursuant to Article 2 and Section 6.1(d) of this Agreement.
For the purpose of this Agreement, "permanent disability" or
"permanently disabled" shall mean the inability of the Executive, due
to physical or mental illness or disease, to perform the functions then
performed by such Executive for one hundred eighty (180) substantially
consecutive days, accompanied by the likelihood, in the opinion of a
physician chosen by the Company and reasonably acceptable to the
Executive, that the disabled Executive will be unable to perform such
5
functions within the reasonably foreseeable future; provided, however,
that the foregoing definition shall not include a disability for which
the Company is required to provide reasonable accommodation pursuant to
the Americans with Disabilities Act or other similar statute or
regulation. If any question shall arise as to whether during any period
Executive has suffered disability, Executive may, and at the request of
the Company will, submit to the Company a certification in reasonable
detail by a physician selected by Executive or his guardian to whom the
Company has no reasonable objection as to whether Executive was so
disabled and such certification, which opinion shall for the purposes
of this Agreement be conclusive of the issue. If such question shall
arise and Executive shall fail to submit such certification to such
examination by such physician, the Company's determination of such
issue shall be binding on Executive.
(b) By the Company for Cause. The Company may terminate
Executive's employment hereunder for "Cause" at any time upon prior
written notice to Executive, and after any applicable cure period has
expired without a cure by Executive setting forth in reasonable and
specific detail the nature of such cause. The following shall
constitute "Cause" for termination.
(i) Executive's falsification of the accounts of the
Company, embezzlement of funds of the Company or other similar
material dishonesty with respect to the Company or any of its
subsidiaries;
(ii) Conduct engaged in or action taken or omitted to
be taken by Executive which is in material breach of this
Agreement, which breach continues for more than fifteen (15)
days after written notice of such breach is given to
Executive; or
(iii) Conviction of, or plea of nolo contendere to, a
felony or other crime involving moral turpitude (it being
understood for example that violation of a motor vehicle code
does not constitute such a crime); or
(iv) Gross or willful misconduct of Executive with
respect to the Company or any subsidiary thereof, which
misconduct continues for more than fifteen (15) days after
written notice of such misconduct is given to Executive.
Upon termination of Executive's employment hereunder for
Cause, the Company shall have no further obligation or liability to
Executive other than the payment of (i) base salary earned but unpaid
at the date of termination and (ii) any unpaid accrued benefits of the
Executive, (iii) reimbursement for any expenses for which the Executive
shall not have been reimbursed as provided in Section 2.6, and (iv) any
unpaid bonus, including, without limitation, any bonus provided under
Section 2.2 hereof, earned by the Executive prior to the date of such
termination.
(c) By Executive For Good Reason. Executive may terminate his
employment by the Company for "Good Reason" at any time upon notice to
the Company setting forth in reasonable detail the nature of such good
reason. "Good Reason" for Executive to terminate his employment shall
mean any act or omission by the Company and not consented to by the
Executive in a writing signed by Executive which constitutes a material
breach of any term or provision of this Agreement or which results in
the assignment to Executive of any duties materially inconsistent with,
or in any material diminution of, the positions, duties,
responsibilities and status of Executive hereunder or any change in
Executive's titles or duties with the same intent or effect which
breach continues for more than fifteen (15) days after written notice
of such breach to Company.
6
(d) In the event of (i) the termination or cessation by the
Company of Executive's employment with the Company other than for
"Cause" as defined above, or (ii) the termination of the Executive's
employment with the Company by Executive for "Good Reason" as defined
above, or (iii) the termination or cessation of Executive's employment
by reason of death pursuant to Section 6.1(a), Executive shall be
entitled to receive from the Company continuation of payment of all
salary and bonus and continuation of all benefits which Executive would
have been entitled to receive had his employment not terminated, at the
same times as such payments would otherwise have been made pursuant to
Article 2 hereof for a period of one year after such termination of
employment. The foregoing shall be exclusive of any non-compete payment
required to be made by the Company under Section 4.2 hereof.
6.2 Voluntary Termination by Executive. If Executive voluntarily
resigns or terminates his employment for other than Good Reason, the Company
shall have no further obligation or liability to Executive other than the
payment of (i) base salary earned but unpaid at the date of termination, (ii)
any unpaid accrued benefits of the Executive and (iii) reimbursement for any
expenses for which the Executive shall not have been reimbursed as provided in
Section 2.6.
6.3 Survival. Notwithstanding termination of this Agreement as provided
in this Article 6, the rights and obligations of Executive and the Company under
Article 3 through Article 6 and Sections 7.5, 7.9, 7.10 and 7.14 shall survive
termination.
ARTICLE 7
CONCLUDING PROVISIONS
7.1 Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the matters contained herein. There are no oral
understandings, terms, or conditions, and no party has relied upon any
representation, express or implied, not contained in this Agreement.
7.2 Amendments. This Agreement may not be amended in any respect
whatsoever, nor may any provision hereof be waived by any party, except by a
further agreement, in writing, fully executed by each of the parties.
7.3 Successors. This Agreement shall be binding upon and inure to the
benefit of the parties and to their respective heirs, personal representatives,
successors and assigns, executors and/or administrators, provided that (a)
Executive may not assign his rights hereunder (except by will or the laws of
descent) without the prior written consent of the Company and (b) Company may
not assign its rights hereunder without the prior written consent of Executive
which will not be unreasonably withheld.
7
7.4 Captions. The captions of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement.
7.5 Notice. Any notice, demand, offer or other written instrument
("Notice") required or permitted to be given shall be in writing signed by the
party giving such Notice and shall be hand delivered or sent, postage prepaid,
by Certified or Registered Mail, Return Receipt Requested, to the parties at the
addresses as set forth in this Agreement. Any Notice to be given to the estate
of any deceased person shall be addressed to the personal representative of such
deceased person at his address as set forth in this Agreement. Any party shall
have the right to change the place to which such Notice shall be sent or
delivered by similar notice sent in like manner to all other parties hereto.
7.6 Effective Date of Notice. The effective date of any offer, demand,
notice or instrument shall be the date of actual (as opposed to presumptive)
delivery to the addressee.
7.7 Counterparts. This Agreement may be executed in one or more copies,
each of which shall be deemed an original. This Agreement may be executed by
facsimile signature and each party may fully rely upon facsimile execution; this
agreement shall be fully enforceable against a party which has executed the
agreement by facsimile.
7.8 Partial Invalidity. The invalidity of one or more of the phrases,
sentences, clauses, sections or Articles contained in this Agreement shall not
affect the validity of the remaining portions so long as the material purposes
of this Agreement can be determined and effectuated.
7.9 Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Minnesota without regard to
principles of comity or conflicts of laws provisions of any jurisdiction.
7.10 Resolution of Disputes.
(a) Subject to the provisions of Section 7.10(b), any dispute,
difference or controversy arising under this Agreement regarding the
payment of money shall be settled by arbitration. Any arbitration
pursuant to this Section 7.10 shall be held before a single arbitrator.
Except as otherwise set forth herein, each party shall bear its own
expenses for counsel and other out-of-pocket costs in connection with
any resolution of a dispute, difference or controversy. Any arbitration
shall take place in Minneapolis, Minnesota or at such other location as
the parties may agree upon, according to the American Arbitration
Association's Commercial Arbitration Rules now in force and hereafter
adopted or by the parties' further agreement or as set forth herein.
The parties agree that, in any arbitration the parties shall, to the
maximum extent possible, have such rights as to the scope and manner of
discovery as are permitted in the Federal Rules of Civil Procedure and
consent to the entry of any order of any court of competent
jurisdiction necessary to enforce such discovery. In submitting the
dispute to the arbitrators, each of the parties shall concurrently
furnish, at its own expense, to the arbitrator and the other parties
8
such documents and information as the arbitrator may request. Each
party may also furnish to the arbitrator such other information and
documents as it deems relevant, with the appropriate copies and
notification being concurrently given to the other party. Neither party
shall have or conduct any communication, either written or oral, with
the arbitrator without the other party either being present or
receiving a concurrent copy of such written communication. The
arbitrator may conduct a conference concerning the objections and
disagreements between the parties, at which conference each party shall
have the right to (i) present its documents, materials and other
evidence (as previously provided to the arbitrator and the other
parties), and (ii) to have present its or their advisors, accountants
and/or counsel. The arbitrator shall make his award in accordance with
and based upon all the provisions of this Agreement,, and judgment upon
any award rendered by the arbitrator shall be entered in any court
having jurisdiction thereof. The fees and disbursements of the
arbitrator shall be borne equally by the parties, with each party
bearing its own expenses for counsel and other out-of-pocket costs. The
arbitrator is specifically authorized to award costs and attorney's
fees to the party substantially prevailing in the arbitration and shall
do so in any case in which he believes the arbitration was not
commenced in good faith.
(b) The parties acknowledge that in the case of disputes
regarding matters other than the payment of money, damages may be
insufficient to remedy a breach of this Agreement and that irreparable
harm may result from a breach of this Agreement. Accordingly, the
parties consent to the award of preliminary and permanent injunctive
relief and specific performance to remedy any material breach of this
Agreement, regarding disputes other than the payment of money, without
limiting any other rights or remedies to which the parties may be
entitled under law or equity. Either party may pursue injunctive relief
or specific performance in any court of competent jurisdiction.
7.11 Genders. Any reference to the masculine gender shall be deemed to
include feminine and neuter genders, and vice versa, and any reference to the
singular shall include the plural, and vice versa, unless the context otherwise
requires.
7.12 Initialing. Each page which contains handwritten or typewritten
changes and each exhibit which is not attached to this Agreement shall be
initialed or signed by each party.
7.13 No Conflicts. The parties represent and warrant that the terms of
this Agreement do not violate any existing agreements with other parties.
7.14 Withholding. All payments made by Company to Executive hereunder
shall be subject to applicable withholding.
7.15 Guarantee. The full and faithful performance of the Agreement by
the Company is guaranteed by Stonepath Group, Inc. as an Ancillary Document
pursuant to that certain Guaranty given by Stonepath Group, Inc. on or about the
date of this Agreement pursuant to the Stock Purchase Agreement.
7.16 Earn-Out. Nothing in this Agreement shall affect Executive's right
to Earn-Out payments under the Stock Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
COMPANY:
M.G.R., INC.
By
----------------------------------
Its:
--------------------------
EXECUTIVE:
-------------------------------------
Xxxxx X. Such
[SIGNATURE PAGE TO EXECUTIVE EMPLOYMENT AGREEMENT]
10
