EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into and effective this January 31, 2008
(“Effective Date”), by and among Concert Group Logistics, Inc., a Delaware corporation (the
“Employer”), Parent (as defined herein), and Xxxxxx Xxxx (hereinafter “Employee”).
PREAMBLE
WHEREAS, Employer is a wholly owned subsidiary of Express-1 Expedited Solutions, Inc., a
Delaware corporation (“Parent”).
WHEREAS, Parent is engaged in the expedited transportation business, and Employer is engaged
in the time critical, time sensitive, and cost sensitive domestic and international surface, air
and ocean freight forwarding business;
WHEREAS, Parent and Employer, concurrently herewith, have acquired (the “Acquisition”)
substantially all of the assets of Concert Group Logistics, LLC, an Illinois limited liability
company engaged in the time critical, time sensitive, and cost sensitive domestic and international
surface, air and ocean freight forwarding business (“Concert”);
WHEREAS, Employee is a member of Concert and served as a senior executive of Concert;
WHEREAS, the entry into this Agreement is a condition precedent of Parent, Employer, and
Concert to the closing of the Acquisition;
WHEREAS, the Employer desires to employ the Employee, and Employee desires to be employed by
the Employer, upon the terms and conditions hereinafter set forth;
NOW THEREFORE, to assure the Employer that it will have the continued dedication of the
Employee and the availability of his or her advice and counsel, and to induce the Employee to
remain in the employ of the Employer, and for other good and valuable consideration and the mutual
covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, the
Employer and the Employee, intending to be legally bound, agree as follows:
1. Preamble. The above preamble is true, correct, and herein incorporated by
reference.
2. Employment and Duties. The Employer hereby hires the Employee, and Employee hereby
accepts employment, as President of Employer, to perform such duties as are customary for a
President, including overall management and oversight of the Employer’s operations, the execution
of contracts on behalf of the Employer, as well as performing such other and further duties as the
Parent’s Chief Executive Officer (the “CEO”) may from time to time deem appropriate for Employee to
render. Employee shall faithfully devote his full business time, attention, knowledge, energy and
skills to the rendition of services on behalf of Employer in accordance with this Agreement, and
shall exert his best efforts in the rendition of such services. All of Employee’s services
hereunder shall be performed in the best interests of the Employer and
Parent. Employee further agrees that in the rendition of his services and in all aspects of
his employment, he will
comply with all reasonable policies, standards and regulations established
by Employer and Parent from time to time. Without limitation, Employee shall faithfully,
truthfully and accurately account to, and take the direction of, the CEO.
3. Employment Term. This Agreement shall be for an initial term commencing on the
Effective Date and continuing until January 31, 2011, and shall automatically renew in 1 year
increments thereafter, unless and until (i) either party provides the other party with written
notice of non-renewal at least 45 days prior to the end of any such period; or (ii) this Agreement
is earlier terminated as provided herein (the “Term”).
4. Facilities. The current office in which Employer conducts its business, and from
which Employee shall perform Employee’s services, is located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx Xxxxx, XX 00000, provided, however, that Employer may relocate said office anywhere in the
Chicago metropolitan area in Employer’s sole discretion. Employee shall undertake all necessary
travel or business trips for the Employer’s business as are reasonably required by and on behalf of
the Employer.
5. Compensation.
5.1 Base Compensation. As “Base Compensation” for the services to be rendered by
Employee under this Agreement, Employer shall pay to Employee a gross annual salary (less social
security, withholding taxes, and other normal deductions) of $180,000. Such Base Compensation shall
be payable in arrears in accordance with Employer’s standard payroll practice, as may be changed by
Employer from time to time. In the event any Base Compensation is due for a partial period, it
shall be prorated weekly, then further prorated over a five day work week to compensate for those
days actually worked. Employer agrees to review Employee at least annually to consider increasing
(but not decreasing) Employee’s Base Compensation based on Employee’s performance and productivity.
Employee shall have no vested right to any additional Base Compensation unless and until approved
by Parent’s Board of Directors (the “Board”).
5.2 Incentive Compensation. The Employer shall also pay Employee such incentive
compensation or bonuses as the Employer, through the Board, deems reasonable and appropriate, in
its sole discretion, provided, the intent of the Board is to provide incentive compensation or
bonuses to Employee at least equal to that provided to Employee as an executive officer of Concert
as a percentage of Base Compensation. The Employee shall have no vested right or entitlement to any
incentive compensation or bonuses unless and until formally approved by the Board.
6. Benefits. Employee shall be entitled during the Term of this Agreement to
participate in and receive all rights and benefits available under any health, disability,
accident, life and medical insurance or other benefit plans now or hereafter provided by the
Employer for any of its executive employees.
7. Expenses. The Employer shall promptly reimburse the Employee for all reasonable
travel, entertainment and other expenses incurred or paid by the Employee in connection with, or
related to, the performance of his duties, responsibilities, or services under this Agreement, upon
presentation by the Employee of documentation, expense statements, vouchers
and/or such other supporting information as the Employer may reasonably request in accordance with
its standard policies and procedures.
2
8. Vacation. Employee shall be entitled to four (4) weeks paid vacation during each
calendar year of employment hereunder, to be taken consistent with the Employer’s vacation policy.
Employee shall take such vacation time for such durations and at such times as may be mutually
agreed between Employer and Employee. All vacation time accrued during any calendar year of
employment shall lapse if not taken during such calendar year. Employee shall also be entitled to
all recognized holidays provided to all employees of Employer.
9. Termination.
9.1 For Cause by Employer. This Agreement may be terminated by Employer at any time
for “Cause”. In the event Employee shall be terminated for Cause, the termination shall be
effective immediately upon delivery of written notification by Employer to Employee (subject to any
stated cure periods). The term “Cause” shall be for any one of the following matters:
9.1.1 Upon material violation by Employee of any of the provisions of this Agreement, or the
rules, policies, and/or procedures of Employer or Parent, or commission of any material act of
fraud, misappropriation, breach of fiduciary duty or theft against or from the Employer or Parent,
if such violation is not cured as soon as is reasonably practical, and in any event within thirty
(30) days after written notice from Employer, or if Employee commits the same violation within
twelve (12) months of receiving any such notice.
9.1.2 Upon the Employee’s violation of any law, rule or regulation of a governmental authority
or regulatory body with jurisdiction over the Employer, Parent, or Employee relative to the conduct
of the Employee in connection with the Employer’s or Parent’s business or its securities, if such
violation is not cured as soon as is reasonably practical, and in any event within thirty (30) days
after written notice from Employer, or if Employee commits the same violation within twelve (12)
months of receiving any such notice.
9.1.3 Upon the death or total disability of Employee. For purposes hereof, the terms
“disabled” or “disability” shall be defined as the inability of Employee to perform all or
substantially all of the duties and obligations contemplated by or required under this Agreement as
a result of accident, illness, disease, or injury, for a period of ninety (90) consecutive days, or
any one hundred eighty (180) days in any twelve (12) consecutive months.
9.1.4 Upon conviction of Employee of a felony under the laws of the United States of America
or any state therein.
In the event this Agreement is terminated by Employer for “Cause” prior to the expiration of
its Term, Employer shall pay to Employee all accrued Base Compensation, other compensation and
benefits due through the date of termination, as are expressly provided herein.
9.2 For Good Reason by Employee. This Agreement may be terminated by Employee at any
time for “Good Reason.” In the event Employee shall terminate this Agreement for Good Reason, the
termination shall be effective immediately upon delivery of written notification by Employee to
Employer. The term “Good Reason” shall mean a termination by Employee as a result of (i) the
Employer relocating the office from which Employee performs
Employee’s services hereunder outside of the Chicago metropolitan area, (ii) assignment to
Employee of duties that are materially inconsistent with Employee’s title and position or any other
actions that result in a material diminution of Employee’s title, position, authority or
responsibilities or (iii) a material breach
3
by the Employer or Parent of its obligations hereunder
which is not cured as soon as reasonably practical and in any event within thirty (30) days after
written notice from Employee. In the event this Agreement is terminated by Employee for Good Reason
prior to the expiration of its Term, (i) Employee shall be entitled to receive a lump sum severance
payment equivalent to all accrued and unpaid Base Compensation, incentive compensation, if any, and
benefits as are due through the date of termination; and (ii) Employer shall continue to pay Base
Compensation to Employee for the longer of the following two periods: (a) the remainder of the
Term; and (b) the date that is one (1) year after the date of termination. Provided, however, that
Employee shall remain available to Employer to provide services to Employer during the period of
time Employer is making severance payments hereunder. In the event Employee accepts other
employment during such time, any amount payable with respect to said other employment shall be
offset against the amounts payable by Employer to Employee under this Section 9.2.
9.3 Without Cause or Good Reason. This Agreement may be terminated by Employer
without Cause or by Employee without Good Reason at any time upon written notice to the other, as
follows:
9.3.1 By Employer. If this Agreement is terminated by Employer without Cause, upon
such termination (i) Employee shall be entitled to receive a lump sum severance payment equivalent
to all accrued and unpaid Base Compensation, incentive compensation, if any, and benefits as are
due through the date of termination; and (ii) Employer shall continue to pay Base Compensation to
Employee for the longer of the following two periods: (a) the remainder of the Term; and (b) the
date that is one (1) year after the date of termination. Provided, however, that Employee shall
remain available to Employer to provide services to Employer during the period of time Employer is
making severance payments hereunder.
9.3.2 By Employee. If this Agreement is terminated by Employee without Good Reason,
upon such termination Employee shall be entitled to receive a lump sum severance payment equivalent
to all accrued and unpaid Base Compensation, incentive compensation, if any, and benefits as are
due through the date of termination.
9.4 Termination for any Reason. If the Employee’s employment with the Employer is
terminated under any circumstances, including without limitation, by reason of retirement, death,
disability, discharge for Cause, termination without cause, or any other termination, the Employee
shall have no right to receive any payments in respect of this Agreement except as expressly
provided in Sections 9.1 through 9.3 hereof and as otherwise required by applicable law (for
instance, the right to participate in the Employer’s health insurance plan, at the Employee’s
expense, pursuant to the provisions of COBRA or similar state law).
9.5 Withholding of Taxes. The Employer shall withhold from any amounts payable under
this Article all federal, state, local or other taxes that are legally required to be withheld.
10. Confidential Information.
10.1. Defined. As used herein, the term “Confidential Information” shall mean and
refer to all confidential, proprietary or trade secret information of the Employer relating to
the research, design, development and/or potential marketing of its products or services,
including all concepts and technologies related thereto, which information is proprietary to and
owned by the Employer.
4
“Confidential Information” shall further mean, without limitation, all information relating to
the relationship of the Employer to its respective customers or suppliers (including, without
limitation, the identity of any customer or supplier), the research, design, development,
manufacturing, marketing, pricing, costs, capabilities, capacities, and business plans related to
the products and services of the Employer; the financing arrangements of the Employer, or the
financial condition or prospects of the Employer; all advertising and promotional materials,
manuals, scripts, methodologies, business plans, marketing plans, and other distribution techniques
of the Employer; and any other information relating to the assets, products, services, conditions
or business of the Employer that is not in the public domain. Without limitation, the term
“Confidential Information” would also include all information, ideas, technologies, business plans,
and concepts developed in connection with and during the relationship between the Parties herein,
whether independently developed by the Employer or the Employee, or by their joint efforts. The
foregoing shall not apply to plans and concepts developed by or worked on by Employee which are
unrelated to the business conducted by the Employer.
The term “Confidential Information” shall further include all written or other tangible
manifestations or depictions of the aforesaid Confidential Information, including any and all
writings, electronic or graphic material, or any copy of any writing, electronic or graphic
material, including, but not limited to, the original and any non-identical copies of any:
correspondence; papers; books; pamphlet; periodicals; photographs; objects; microfilm or
microfiche; note or sound recording or other memorial of any type of oral communication, meeting or
conference; memoranda; records; reports; studies; written forecasts, projections, analyses or
estimates; desk or other calendars; appointment books; diaries; data sheets; data processing cards;
computer disks; audio or video tapes; movies or motion pictures; slides; computer printouts; work
papers; charts; graphs; new clippings; press releases; and transcripts of any of the aforesaid.
10.2. Ownership. All Confidential Information, in whatever form, shall be and remain
the sole and exclusive property of the Employer. This Agreement provides the Employee no rights to
utilize such Confidential Information except as expressly agreed herein or otherwise between the
parties in writing, nor shall the Employee have any vested rights in such Confidential Information.
Any and all Confidential Information provided to Employee by the Employer shall be promptly
returned to the Employer upon the termination of this Agreement, or upon written request of the
Employer. Employee shall also certify to the Employer, upon request, that all such Confidential
Information has been returned, and that none has been retained, in any form, by the Employee.
10.3. Protection of Confidential Information. Employee understands and acknowledges
that the Confidential Information has been developed and/or obtained by Employer by the investment
of significant time, effort and expense, and that the Confidential Information is a valuable,
special and unique asset of the Employer, which provides the Employer with a significant
competitive advantage. Therefore, and except as expressly authorized in writing by the Employer,
the Employee shall not disclose, disseminate or distribute any Confidential Information to any
person, firm, association, partnership, or corporation not affiliated with the Employer, or not
otherwise reasonably necessary for purposes of promoting
the Employer’s business, products and services, and shall forever hold such Confidential Information in confidence.
5
Confidential Information shall not include information that is generally available to the
public or becomes generally available to the public other than as a result of a disclosure in
violation of this Agreement.
Notwithstanding the aforesaid, the Employee may disclose or produce any Confidential
Information to the extent required by any lawful subpoena, court order, or other governmental
action, provided the Employee immediately advises the Employer of such subpoena, court order, or
other action, in writing, at least seven (7) days prior to any date of required compliance
specified therein or such shorter time if compliance is required in a shorter time so as to afford
the Employer a reasonable opportunity to appear, object and/or obtain a protective order or other
appropriate relief regarding such disclosure.
11. Non-Competition Covenant. As a further inducement to Employer to enter into the
Acquisition and its relationship with the Employee, the Parties further agree as follows:
11.1. Legitimate Business Interests. After such discussion and consultation with their
respective attorneys as the Parties deemed necessary, the Parties agree that the Employer has
legitimate business interests which much be protected hereunder. In part, this is based upon the
following “legitimate business interests”:
11.1.1. Trade secrets;
11.1.2. Valuable confidential business or professional information that otherwise does not
qualify as trade secrets;
11.1.3. Substantial relationships with specific prospective or existing customers, suppliers,
or clients;
11.1.4. Names of Employer’s truck drivers and the terms of Employer’s contracts with
them;
11.1.5. Confidential business lists;
11.1.6. Names and addresses of customers, clients, suppliers and vendors;
11.1.7. Proprietary methods of doing business;
11.1.8. Extraordinary or specialized training;
11.1.9. The Confidential Information.
It is acknowledged between the Parties that the provisions contained in this Agreement are
reasonable in terms of scope, time and geographical location; that the restrictions contained
herein are reasonable restraints upon Employee; and that any violation of the terms of the
covenants contained in this Agreement could have a substantial detrimental effect on the Employer.
Employee has carefully considered the nature and extent of the restrictions imposed
upon him and the rights and remedies conferred upon the Employer under the provisions of this
Agreement and hereby acknowledges and agrees that the same are designed to protect the legitimate
business interests of the Employer, do not stifle Employee’s inherent skill and
6
experience, would
not operate as a bar to Employee’s sole means of support, and are fully required to protect the
legitimate business interests of the Employer and do not confer a benefit upon the Employer
disproportionate to the detriment of the Employee. The Parties further acknowledge and agree that
Employee’s right to work and pursue his chosen occupation is not and will not be unreasonably
restrained by the provisions of this Agreement.
11.2. Restrictions. Employee agrees and covenants that he will not, either directly
or indirectly, as an owner, employee, partner, joint venturer, stockholder, officer, director,
employee, agent, licensee or franchisee, for any person, firm, partnership, corporation or other
entity, do any of the following acts:
11.2.1. Solicit, encourage or advise the Employer’s clients, customers or suppliers, who
conducted any business with Employer at any time during the Restrictive Period or who became known
to Employee during the Restrictive Period, to obtain or seek products or services the same as or
similar to the Employer’s from any other source not affiliated with the Employer;
11.2.2. Sell, distribute, market, provide or otherwise disseminate the Employer’s products or
services, or products or services substantially similar to the Employer’s products or services, or
otherwise compete with the Employer, anywhere within any state in the United States in which the
Employer has conducted operations during the Restrictive Period;
11.2.3. Hire, recruit or employ any employee of Employer (other than pursuant to a general
advertisement or after termination of such employee’s employment); solicit or cause any person or
entity to solicit, either directly or indirectly, any of the employees or independent contractors
of Employer, whether directly or indirectly to terminate their relationship with the Employer; or
solicit or cause any person or entity to solicit, either directly or indirectly, any individual or
entity with which Employer may have a business relationship, including its suppliers and vendors,
to terminate their business relationship with the Employer;
11.2.4. Persuade or encourage, directly or indirectly, another person or entity to compete
with the Employer in its business, or in the sale of the Employer’s products or services, or
products or services substantially similar to the Employer’s products and services;
11.2.5. Persuade or encourage, directly or indirectly, another person or entity to modify,
terminate, cancel, reduce the extent of or revoke any business agreement or relationship with the
Employer.
11.3. Duration. The restrictions contained in Section 11.2 above shall remain in full
force and effect during the Term of this Agreement, and for the longer of the following two periods
thereafter (collectively the “Restrictive Period”): (i) three (3) years after the Effective Date;
and (ii) one (1) year after the expiration, natural termination, or earlier termination, for any
reason, with or without Cause or Good Reason, whether by Employer or Employee, of this Agreement.
Provided, however, said Restrictive Period shall be extended by any periods of time during which
Employee is in violation of any covenant set forth in Section 11.2 and, with respect to a
termination with Good Reason or without Cause, shall only be in force and effect for so long as the
Employer is making the severance payments.
The provisions of this Agreement regarding the confidentiality of the Confidential Information
shall apply at all times during the Term of this Agreement.
7
11.4. Reconstruction of Restrictive Covenants. The Parties agree, having discussed
the matter and having had the benefit of counsel, that the restrictions, duration and geographical
limitations contained in this Article 11 are reasonable. The Parties agree that they shall not
seek to avoid the obligations hereunder by claiming “unreasonableness” in the restrictions, or the
duration or geographical limitations. If any portions of the terms of this Agreement are held to
be unreasonable, arbitrary or against public policy by a Court of competent jurisdiction, such
portion of the covenant shall be considered divisible as to both time and geographical area. The
Parties agree that if a court of competent jurisdiction determines the specified time period or
specified geographical area applicable to this covenant to be unreasonable, arbitrary or against
public policy, the lesser time period or geographical area which is deemed to be reasonable, not
arbitrary and not against public policy, shall be enforced against Employee.
11.5. Injunctive Relief. Employee recognizes and agrees that the limitations and
restrictions set forth herein are reasonable and necessary for the protection of the goodwill,
legitimate business interests and Confidential Information of the Employer. It is further
recognized and agreed between the Employer and Employee that damages at law will be an insufficient
remedy to the Employer in the event that Employee violates the terms of this Agreement, and the
Employer will suffer irreparable harm if Employee does so violate the terms of this Agreement.
Therefore, in the event Employee breaches this covenant, or any of the confidentiality provisions
of this Agreement, the Employer shall have the right not only to pursue an action at law for
damages, but also to pursue an action for injunctive relief and specific performance of these
covenants, without the necessity of posting bond, from any court of competent jurisdiction.
Employee further agrees that in the event the Employer incurs any fees or costs in order to enforce
the provisions contained in this Agreement and Employer is the prevailing party, Employee shall pay
all fees and costs so incurred by the Employer, including, but not limited to, reasonable
attorneys’ fees and court costs incurred at any trial, appellate or bankruptcy court proceedings.
In the event Employee is the prevailing party, Employer shall pay all fees incurred by Employee
including reasonable attorney’s fees and court costs.
11.6. Independent Agreement It is understood by the parties that the foregoing
covenants contained in this Agreement shall be construed to be agreements independent of any other
elements of this Agreement. The existence of any other claim or cause of action, whether
predicated on any other provisions in this Agreement, or otherwise, as a result of the relationship
between the Parties, shall not constitute a defense to the enforcement of the covenants contained
in this Agreement.
11.7. Survival. The provisions of Articles 10, 11 and 12, as well as all sections or
paragraphs thereof, including all confidentiality and non-competition restrictive covenants, shall
survive the termination of this Agreement.
11.8. Assigns. The provisions of Articles 10, 11 and 12, as well as all sections or
paragraphs thereof, shall specifically apply to any transferee, successor or assign of the
Employer.
11.9 Employer and Parent. For purposes of Articles 5, 6, 7, 9.3.1(ii), 9.4, 10, 11,
and 12, as well as all sections or paragraphs thereof, the term Employer shall also include Parent,
Employer, and any affiliates or subsidiaries thereof, whether wholly or partially owned.
8
12. Developments. Employee will make full and prompt disclosure to the Employer of
all inventions, know-how, improvements, discoveries, methods, developments, software, and works of
authorship, whether patentable or not, and all intellectual property rights, including but not
limited to patents, copyrights, trade secrets and trademarks, and all books and records related
thereto which are or were created, made, conceived, reduced to practice by or became owned by the
Employee or under his direction or jointly with others prior to or during his employment by the
Employer, whether or not during normal working hours or on the premises of the Employer (all of
which matters described in this Section are collectively referred to in this Agreement as
“Developments”).
12.1. Employee agrees to assign and does hereby grant, assign, convey and transfer to the
Employer, or any person or entity designated by the Employer, all his right, title, and interest in
and to all Developments and the Developments are and shall be the sole and exclusive property of
the Employer. Employee shall not be entitled to any additional or special compensation for any
Developments which the Employer acquires hereunder.
12.2. Employee agrees to cooperate fully with Employer, both during and after his employment
with the Employer, with respect to the procurement, assignment, maintenance and enforcement of
copyrights and patents (both in the United States and foreign countries) relating to the
Developments; and, if such cooperation by Employee is required after Employee has ceased to be
employed by the Employer, then the Employer will reimburse the Employee for any expenses reasonably
incurred by Employee in connection with such cooperation. Employee shall sign all papers,
including, without limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights, and powers of attorney, which are reasonably
necessary to the Employer in order to protect its rights and interests in any Developments.
13. Indemnification. The Employee hereby covenants and agrees he will not do any act,
or incur any obligation, on behalf of the Employer of any kind whatsoever, except as authorized by
the Employer or within the course and scope of his employment responsibilities hereunder, and the
Employee hereby agrees to indemnify and hold the Employer harmless from any obligation or
liability, including the reasonable attorneys’ fees and expenses of legal defense, arising out of
his breach of any of the provisions hereof.
The Employer hereby covenants and agrees that it will indemnify and hold the Employee harmless
from any obligation or liability arising out of the Employee’s performance of any obligations or
duties required under the terms and conditions of this Agreement, or otherwise incurred in the
course and scope of the Employee’s performance of his employment obligations on behalf of the
Employer, to the full extent provided in Employer’s Certificate of Incorporation and Bylaws.
14. Notices. All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given on the second
business day after mailing by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
To Employer:
|
Express-1 Expedited Solutions, Inc. | |
| 000 Xxxx Xxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attn: Xxxx Xxxxxxxxx |
9
To Employee:
|
Xxxxxx Xxxx | |
| 0X000 Xxxxxxxxxxx Xxxxxx | ||
| Xxx Xxxxxxx, XX 00000 |
or to such other person as either Party shall designate to the other for such purposes in the
manner hereinabove set forth.
15. Amendment. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the Party against which the
enforcement of said modification, waiver, amendment, discharge or change is sought.
16. Merger. This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein. All prior agreements whether written
or oral, are superseded hereby, merged herein and shall be of no further force or effect.
17. Survival. The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective regardless of any
investigation that may have been made or may be made by or on behalf of any party.
18. Severability. If any provision or any portion of any provision of this Agreement,
or the application of such provision or any portion thereof to any person or circumstance shall be
held invalid or unenforceable, the remaining portions or such provision and the remaining
provisions of this Agreement or the application of such provision or portion of such provision as
is held invalid or unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
19. Governing Law and Venue. This Agreement shall be construed in accordance with the
laws of the State of Michigan and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement or a breach hereof shall, to the extent permitted by law,
be held exclusively in the courts, state or federal, of Berrien County, Michigan.
20. Litigation. In any action between the Parties to enforce, interpret or for breach
of any of the terms of his Agreement, or any other matter arising out of or related to Agreement,
the prevailing Party shall be entitled to recover its costs and expenses, including reasonable
attorneys’ fees up to and including all negotiations, trials, appeals, or bankruptcy proceedings,
and whether or not litigation is initiated.
21. Benefit of Agreement. This Agreement may be assigned only by the Employer, the
Employee’s duties being of a personal nature. Subject to the restrictions on transferability and
assignment contained herein, the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal representatives, estate,
heirs and legatees.
22. Further Assurances. The Parties hereby agree to do, execute, acknowledge and
deliver or cause to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such documents, as may, from time to time, be required herein to effect the intent
and purposes of this Agreement.
10
23. Status. Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather, the relationship
established hereby is that of employer-employee.
24. Counterparts. This Agreement may be executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding that all signatories are not
signatories to the original or the same counterpart.
11
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective as of the date first
set forth above.
| Concert Group Logistics, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Secretary | |||||
| Express-1 Expedited Solutions, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chief Financial Officer | |||||
| Xxxxxx Xxxx | ||||||
12
