Exhibit 10.8
December 31, 2001
Xx. Xxxxx X. Xxxxx
Chief Financial Officer
Transport Corporation of America, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
RE: Supplement to (a) Employment Offer dated July 1, 1999 (the "Employment
Offer"), (b) Change of Control Severance Agreement dated September 10, 1999, and
(c) Amendment No. 1 to the Change in Control Severance Agreement dated September
10, 1999 ((b) and (c) collectively known as the "Change of Control Severance
Agreement")
Dear Xxxxx:
This letter agreement will confirm our mutual agreement and understanding of
your employment with Transport Corporation of America, Inc. (the "Company") as
of the above date. All other terms and conditions of the Employment Offer and
the Change of Control Severance Agreement shall remain in full force and effect
except to the extent specifically modified by this letter agreement.
1. SEVERANCE PACKAGE. In the event your employment is terminated for any
reason other than your voluntary resignation or for Cause (as defined
below) before a Change in Control (as defined in the Change of Control
Severance Agreement) or after the Change in Control Severance Agreement
is terminated (hereinafter, a "Termination"), you will receive the
following severance package:
A. Salary. The Company will pay you an amount equal to twelve
(12) months of your base salary at the time of Termination,
payable in substantially equal installments in accordance with
the Company's payroll policy then in effect. Such payments
shall be subject to any payroll or other deductions as may be
required to be made by law, government order, or by agreement
with, or consent by, you.
B. Benefits. The Company will, for a period of twelve (12) months
following the Termination, reimburse you for the cost of any
life insurance, medical, disability, dental or other health
insurance provided to you immediately prior to the Termination
and for which you are eligible to maintain following the
Termination under COBRA. Benefits otherwise receivable by you
pursuant to the Sub-Paragraph (B) shall be reduced to the
extent comparable benefits are actually received by you from
another party during such period.
C. Automobile. The Company will, for a period of three (3) months
following the Termination, permit you to continue to use the
Company's automobile provided to you immediately prior to the
Termination. Upon completion of such three (3) month period,
you will return the automobile in its same condition as prior
to the Termination.
D. Outplacement Services. The Company will reimburse you up to
Ten Thousand Dollars ($10,000) for individual outplacement
counseling.
E. Release. Following any Termination and prior to any payment by
the Company of any of the compensation contemplated by this
Paragraph 1, you must have provided the Company a release of
any and all claims you may then have against the Company, in
the form attached hereto as Exhibit A, and all review and
rescission periods must have expired without you having
rescinded such release.
2. DEFINITION OF CAUSE. For purposes of this letter agreement, "Cause"
shall mean:
A. the willful and continued failure by you (other than failure
resulting from (1) your incapacity due to physical or mental
illness, (2) any such actual or anticipated failure after
notice of termination by the Company, or (3) the Company's
active or passive obstruction of the performance of your
duties and responsibilities) to perform substantially the
duties and responsibilities of your position with the Company
after a demand for substantial performance is delivered to you
by the Company's Board of Directors, which demand specifically
identified the manner in which the Board of Directors believes
that you have not substantially performed the duties or
responsibilities;
B. your conviction by a court of competent jurisdiction for
felony criminal conduct;
C. your willful engagement in fraud or dishonesty which is
demonstrably and materially injurious to the Company,
monetarily or otherwise; or
D. breach any covenant not to compete, confidentiality obligation
or other written contract with the Company or any subsidiary
of the Company.
No act or failure to act, on your part shall be deemed "willful" unless
committed or omitted by you in bad faith and without reasonable belief
that your act or failure to act was in the best interest of the
Company. You shall not be terminated for Cause unless and until the
Company shall have delivered to you a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire
membership of the Board of Directors at a meeting of the Board of
Directors called and held for such purpose (after reasonable notice to
you and an opportunity for you together with your counsel, to be heard
before the Board of Directors), finding that, in the good faith opinion
of the Board of Directors, your conduct was Cause and specifying the
particulars thereof in detail.
3. PROTECTIVE COVENANTS.
3.1 Definitions. For purposes of this paragraph 3, the terms
listed below shall have the following meanings:
a. "Confidential Information" shall mean any information
that is not generally known by the Company's
competitors or the general public. Subject to the
foregoing, Confidential Information includes, but is
not limited to, data of any type that was created by
you in the course of your employment by the Copmany;
data or conclusions or opinions formed by you in the
course of employment; manuals; trade secrets;
methods, procedures, or techniques pertaining to the
core business of the Company; specifications;
systems; price lists; marketing plans; sales or
service analyses; financial information; customer
names or customer specific information; supplier
names; employee names and personnel information;
research and development data; diagrams; drawings;
videotapes, audiotapes, or computerized media used as
training regimens; and notes, memoranda, notebooks,
and records or documents that were created or used by
you in the course of employment with the Company.
Confidential Information does not include information
that you can demonstrate by reliable, corroborated
documentary evidence (1) is generally available to
the public, (2) became generally available to the
public through no act or failure to act by you, or
(3) relates to a business or service not provided by
the Company on or before the date of your
termination.
b. "Competing business" shall mean any person or entity
that competes, or is preparing to compete directly,
with (1) the hauling of freight or trucking business,
or (2) any of the products or services developed or
sold by the Company on or before the date of your
termination.
c. "Render services" shall mean owning, managing,
operating, controlling, providing services to, being
employed by, consulting for, or otherwise
participating actively in, a business; provided,
however, that ownership of less than 1% of a class of
stock of a corporation, whether publicly traded or
privately held, shall not be deemed "rendering
services."
d. "Sell" and "sold" shall mean sell, lease, license,
market, or otherwise provide or attempt to provide
for compensation or advantage.
e. "Customer" shall mean any person or entity that (1)
has a contract or business relationship with the
Company, (2) was negotiating to contract or enter
into a business relationship with the Company as of
the date of your termination, or (3) has, within the
last year of your employment with the Company,
purchased or leased products or services from the
Company.
3.2 Confidentiality Restrictions. You agree at all times to
use all reasonable means to keep Confidential Information secret and
confidential. You shall not at any time use, disclose, duplicate,
record, or in any other manner reproduce in whole or in part any
Confidential Information, except as necessary to determine compliance
with your obligations under this letter agreement so long as such
disclosure is not to a competitor of the Company. You shall not at any
time render services to any person or entity if providing such services
would require or likely result in using or disclosing Confidential
Information. You acknowledge that use or disclosure of any of the
Company's confidential or proprietary information in violation of this
letter agreement would have a materially detrimental effect upon the
Company, the monetary loss from which would be difficult, if not
impossible, to measure. You agree that should you breach the
confidentiality restrictions of this letter agreement, the Company will
be entitled to seek injunctive relief and specific enforcement of this
letter agreement.
3.3 Noncompetition. During such period of time, if any, that
you receive compensation from the Company pursuant to Paragraph 1 of
this letter agreement (the "Restriction Period"), you shall not render
services, directly or indirectly, for a competing business anywhere
within the United States, whether as an officer, director, owner,
partner, affiliate, employee, contractor, or otherwise.
3.4 Nonsolicitation of Customers. During the Restriction
Period, you agree that you will not:
a. solicit or sell, or attempt to solicit or sell, to
any Company customer, services or products that
compete with services or products provided by the
Company, or that were in the process of being
developed by the Company during your employment; or
b. interfere in any way with, or induce any Company
customer, supplier or other entity to terminate or
alter its business relationship with the Company.
3.5 Nonsolicitation of Employees or Others. During the
Restriction Period, you agree that you will not solicit or
accept--directly or indirectly, as an individual or through any other
person or entity--any active employee of the Company or retained
consultant under contract with the Company for employment or any other
arrangement for compensation to perform services for any other person,
regardless of the nature of their business, or induce such persons to
terminate or alter their relationship with the Company.
4. MISCELLANEOUS. You may not assign any of your rights or delegate any of
your duties or obligations under this letter agreement. The rights and
obligations of the Company under this letter agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of
the Company. This letter agreement shall be governed by, and construed
in accordance with, the laws of the State of Minnesota, without
reference to its conflict of law provisions. This letter agreement and
the Change in Control Severance Agreement set forth the entire and
final agreement and understanding of you and the Company and contains
all of the agreements made between you and the Company with respect to
the severance arrangements between you and the Company. This letter
agreement and the Change in Control Severance Agreement supersede any
and all other agreements, either oral or in writing, between you and
the Company, with respect to the severance arrangements between you and
the Company. No change or modification of this letter agreement shall
be valid unless in writing and signed by you and the Company. This
letter agreement may be executed in several counterparts, each of which
shall be considered an original, but which when taken together, shall
constitute one agreement.
Sincerely,
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Agreed:
--------------------------------
Xxxxx X. Xxxxx
December 31, 2001
EXHIBIT A
RELEASE
I, Xxxxx X. Xxxxx, a resident of the State of Minnesota and employee or
former employee of Transport Corporation of America, Inc. a Minnesota
corporation ("Transport America"), do hereby release Transport America, its past
and present affiliates, and its and their past and present officers, directors,
agents, shareholders, employees, attorneys, insurers and indemnitors, acting in
their capacity as such (collectively, the "Releasees") from any and all claims
and causes of action, known or unknown, which I may have against any and all of
them. Through this release, I extinguish all causes of action against the
Releasees occurring up to the date hereof, including but not limited to any
contract, compensation or benefit claims; intentional infliction of emotional
distress, defamation or any other tort claims; all claims relating to my status
as an employee or officer of Transport America and its past and present
affiliates, including but not limited to any claims arising under Minnesota
Statutes, Chapter 302A and common law (other than claims for indemnification
otherwise available to me by Transport America or its insurance carriers which
shall remain available) and all claims arising from any federal, state or
municipal law or ordinance, including the Family and Medical Leave Act and the
Fair Labor Standards Act and all Minnesota labor and employment law statutes.
This release extinguishes any potential claims of employment discrimination
arising from my employment with and resignation from Transport America and any
of its past and present affiliates, including specifically any claims under the
Minnesota Human Rights Act, the Americans With Disabilities Act, Title VII of
the Civil Rights Act of 1964, the Older Workers Benefit Protection Act, and the
Age Discrimination in Employment Act.
This release does not relinquish my claims with respect to (i) my
salary or accrued vacation pay earned through the date hereof or as provided in
Paragraph 1 of my letter agreement with Transport America dated December 31,
2001 (the "December 2001 Letter"), (ii) my vested accounts in Transport
America's 401(k) Plan, Employee Stock Purchase Plan and Transport America's
Flexible Benefit Plan, if I participated in such Plans, (iii) eligible claims
under Transport America's health plan I have incurred on or before the date
hereof and (v) claims for reimbursements of business expenses.
This release does not extinguish any claims which arise against
Transport America or any of its past or present affiliates after I sign this
agreement. I certify that I (a) have not filed any claims, complaints or other
actions against any Releasee and (b) am hereby waiving any right to recover from
any Releasee under any lawsuit or charge filed by me or any federal, state or
local agency on my behalf based upon any event occurring up to the date on which
I sign this release. I have reviewed my rights and responsibilities under this
release with my own lawyer.
Under the Age Discrimination in Employment Act, I have 21 days to
review and consider this release and the severance benefits offered in the
December 2001 Letter. If I sign this release before 21 days have elapsed from
the date on which I first received it, then I will be voluntarily waiving my
right to the full 21-day review period. I also have the right to rescind this
release within 15 calendar days of the date upon which I sign it. I understand
that if I desire to rescind this release, I must put the rescission in writing
and deliver it to Transport America, attn: Xxxxxxx X. Xxxxxx, 0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxx, XX 00000, by hand or by mail within 15 calendar days of the date
on which I sign this release. If I deliver the rescission by mail, it must be
postmarked within 15 calendar days of the date on which I sign this release and
sent by certified mail, return receipt requested.
If I rescind this agreement, all of Transport America's obligations to me under
the December 2001 Letter will immediately cease and Transport America will owe
me no amounts or benefits thereunder.
This release is executed as of the ____ day of __________, 20____.
----------------------------------------
Xxxxx X. Xxxxx
STATE OF MINNESOTA )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
___________, 20___, by Xxxxx X. Xxxxx.
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Notary Public
