EXHIBIT 10.6
EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 1, 2003, between XRG, Inc. (the
"Company"), a Delaware Corporation, having its principal place of business
located at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, and Xxxx
Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to employ the Executive as its
Chief Operating Officer and the Executive desires to accept such employment.
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive and
the Executive hereby accepts employment upon the terms and conditions
hereinafter set forth.
2. Term. This Agreement shall commence on the date hereof
and shall terminate as of the earlier of:
(a) three years from the date hereof (the "Initial Term")
unless either the Executive or the Company notifies the other that he or it
elects to extend the term hereof for an additional three years (the "Renewal
Period"), such notice to be given within 90 days before the end of the Initial
Term hereof or within 90 days before the end of each successive Renewal Period;
(b) the death of the Executive;
(c) at the option of the Company, after notice of termination
for Cause is given by the Company to the Executive. As used herein, "Cause"
shall mean (i) willful actions by the Executive which constitute gross
negligence or misconduct in the performance of his duties to the Company, (ii)
material failure by the Executive to perform his duties, which omission is
detrimental to the Company, and which failure has not been cured within thirty
(30) days following written notice of such failure, provided if the default can
not reasonably be cured with a thirty (30) day period and the executive is
making good faith and diligent efforts to cure, then such cure period shall be
extended to three (3) months from the issuance of written notice, and (iii) a
conviction by the Executive of a felony as defined by Florida Law;
(d) at the option of Executive, upon thirty (30) days after
written notice is given by the Executive to the Company, after a material breach
hereof by the Company; the Company shall only be deemed to have materially
breached this Agreement and the terms of the Executive's employment if it fails
to comply with Section 3 hereof or the provision in the second sentence of
Section 4 hereof in all material respects. The Company shall have thirty (30)
days following written notice by the Executive of a material breach of this
Agreement to cure such material breach; or
(e) at the option of the Company, upon the disability of the
Executive for 90 consecutive days or for 180 days (whether or not consecutive)
in any 12-month period; disability shall mean the Executive's inability, due to
sickness or injury, to perform the essential functions of his position hereunder
even with a reasonable accommodation.
3. Compensation. As compensation for his services to the
Company during the term of this Agreement:
(a) The Company shall pay the Executive a base salary of not
less than $120,000 per annum in equal monthly or semi-monthly installments. The
Board of Directors will review, at least annually, the Executive's compensation
with a view to increasing it if, in the sole judgment of the Board of Directors,
the earnings of the Company or the services of the Executive merit such an
increase.
(b) During the term of his employment, the Executive shall be
entitled to participate in employee benefit plans or programs of the Company, if
any, to the extent that his position, tenure, salary, age, health and other
qualifications make him eligible to participate, subject to the rules and
regulations applicable thereto. Such additional benefits shall include, subject
to the approval of the Board of Directors, full medical, dental and income
insurance, [four] weeks paid vacation and qualified pension and profit sharing
plans.
(c) The Executive was issued a restricted stock grant of
550,000 of the Company's common stock on March 24, 2003 which will entitle him
to receive all dividends payable on such shares and to vote these shares.
(d) The Executive will earn an acquisition and performance
bonus (the "Bonus") upon the Company's closing of the acquisition of R&R
Express, Inc. and the Company's closing of the X. Xxxxxx Companies, Inc. Fleet
Agreement or the closings of two similarly sized truckload carrier acquisitions
("Acquisition Closings"). This Bonus is granted in the form of stock options to
purchase 450,000 shares of the Company's common stock. This option is
non-qualified, carries a term of five (5) years, and is issued at par value
($.001). Failure to close these transactions would result in forfeiture of this
Bonus.
(e) The Executive shall be entitled to an automobile allowance
of $600 per month beginning the first month after the Acquisition Closings.
(f) The Executive shall be entitled to reimbursement of all
expenses incurred by him in the performance of his duties, subject to the
presenting of appropriate vouchers in accordance with the Company's policy.
4. Duties. The Executive shall be engaged initially with the
title and functions of Chief Operating Officer of the Company and, subject to
the direction of the Board of Directors, shall perform and discharge well and
faithfully the duties which may be assigned to him from time to time by the
Company in connection with the conduct of its business. Nothing herein shall
preclude the Board of Directors of the Company from changing the Executive's
title and duties if such Board has concluded in its reasonable judgment that
such change is in the Company's best interests; provided, however, that at all
times during the term of this Agreement, the Executive shall be employed as a
senior executive of the Company with appropriate and commensurate compensation,
title, rank and status. If the Executive is elected or appointed a director or
officer of the Company or any subsidiary thereof during the term of this
Agreement, the Executive will serve in such capacity without further
compensation.
5. Extent of Services. The Executive shall devote such time,
attention and energies to the business of the Company as shall be reasonably
necessary to fulfill his obligations. The Company agrees and acknowledges that
neither the Company nor the Executive anticipate that Executive will devote less
than forty (40) hours per week on behalf of the Company. Nothing herein shall
prevent the Executive from (a) investing his personal assets in businesses which
do not compete with the Company and which may also require the services, on the
part of the Executive in the operation or the affairs of the companies in which
such investments are made; (b) purchasing securities in any corporation whose
securities are regularly traded, provided that such purchase shall not result in
his collectively owning beneficially at any time thirty-one percent (31%) or
more of the equity securities of any corporation engaged in a business
competitive to that of the Company; and (c) participating in conferences,
preparing or publishing papers or books or teaching so long as the Board of
Directors approves of such activities prior to the Executive's engaging in them.
Prior to commencing any activity described in clause (c) above, the Executive
shall inform the Board of Directors of the Company in writing of any such
activity. Moreover, the Company understands that the Executive may be
interested, directly or indirectly, in various other businesses and undertakings
not included in the Company which may require the Executive's time and
attention. The Company also understands and agrees that the assumption by the
Executive of his duties hereunder shall be without prejudice to his rights to
have such other interests and activities and to receive and enjoy profits or
compensation there from, and the Company waives any rights it might otherwise
have to share or participate in such other interests or activities of the
Executive.
6. Disclosure of Information. The Executive recognizes and
acknowledges that the Company's trade secrets and proprietary information and
processes, as they may exist from time to time, are valuable, special and unique
assets of the Company's business, access to and knowledge of which are essential
to the performance of the Executive's duties hereunder. The Executive will not,
during or after the term of his employment by the Company, in whole or in part,
disclose such secrets, information or processes to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
nor shall the Executive make use of any such property for his own purposes or
for the benefit of any person, firm, corporation or other entity (except the
Company) under any circumstances during or after the term of his employment,
provided that after the term of his employment these restrictions shall not
apply to such secrets, information and processes which are then in the public
domain (provided that the Executive was not responsible, directly or indirectly,
for such secrets, information or processes entering the public domain without
the Company's consent). The Executive agrees to hold as the Company's property,
all memoranda, books, papers, letters, formulas and other data, and all copies
thereof and therefrom, in any way relating to the Company's business and
affairs, whether made by him or otherwise coming into his possession, and on
termination of his employment, or on demand of the Company, at any time, to
deliver the same to the Company.
7. Inventions. The Executive hereby agrees to license to the
Company on an exclusive bases for a period of five (5) years from the date of
termination of this agreement the entire right, title and interest of the
Executive in and to all inventions, ideas, disclosures and improvements, whether
patented or unpatented, and copyrightable material, made or conceived solely by
the Executive during the term hereof which (i) relate to methods, apparatus,
designs, products, processes or devices sold, leased, used or under construction
or development by the Company or any subsidiary or (ii) otherwise relate to or
pertain to the business, functions or operations of the Company or any
subsidiary. The Executive shall communicate promptly and disclose to the
Company, in such form as the Company requests, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and
improvements; and, whether during the term hereof or thereafter, the Executive
shall execute and deliver to the Company such formal transfers and assignments
and such other papers and documents as may be required of the Executive to
permit the Company or any person or entity designated by the Company to file and
prosecute the patent applications and, as to copyrightable material, to obtain
copyright thereon. Any invention by the Executive within one year following the
termination of this Agreement shall be deemed to fall within the provisions of
this paragraph unless proved by the Executive to have been first conceived and
made following such termination.
8. Covenant Not to Compete.
(a) During the term hereof and, unless this Agreement is
terminated pursuant to Section 2(d) hereof, for a period of two years
thereafter, the Executive shall not compete, directly or indirectly, with the
Company, interfere with, disrupt or attempt to disrupt the relationship,
contractual or otherwise, between the Company and any customer, client,
supplier, consultant or employee of the Company at the time of termination of
this Agreement, including, without limitation, employing or being an investor
(representing more than a 5% equity interest) in, or officer, director or
consultant to, any person or entity which employs any former key or technical
employee whose employment with the Company was terminated after the date which
is one year prior to the date of Termination of this Agreement. An activity
competitive with an activity engaged in by the Company shall include becoming an
employee, officer, consultant or director of, or being an investor in, or owner
of, an entity or person engaged in the business engaged in by the Company at the
time of Termination of this Agreement.
(b) It is the desire and intent of the parties that the
provisions of this Section 8 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular portion of this Section 8
shall be adjudicated to be invalid or unenforceable, this Section 8 shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of this
Section in the particular jurisdiction in which such adjudication is made.
(c) Nothing in this Section 8 shall reduce or abrogate the
Executive's obligations during the term of this Agreement under Sections 4 and 5
hereof.
9. Remedies.
(a) If there is a breach or threatened breach of the
provisions of Section 5, 6, 7 or 8 of this Agreement, the Company shall be
entitled to an injunction restraining the Executive from such breach. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies for such breach or threatened breach.
(b) If this Agreement is terminated pursuant to Section 2(d)
hereof, the Executive shall not be required to mitigate damages otherwise
obtainable from the Company as a result thereof and any income received by the
Executive after such termination shall not reduce the amount of damages
otherwise obtainable from the Company hereunder.
10. Insurance. The Company may, at its election and for its
benefit, insure the Executive against accidental loss or death and the Executive
shall submit to such physical examination and supply such information as may be
required in connection therewith.
11. Location of Performance. The Executive's services will be
performed in the Tampa, Florida area. The Executive's performance hereunder
shall be within such area or its environs. The parties acknowledge, however,
that the Executive may be required to travel in connection with the performance
of his duties hereunder.
12. Assignment. This Agreement may not be assigned by any
party hereto; provided that the Company may assign this Agreement in connection
with a merger or consolidation involving the Company or a sale of substantially
all its assets to the surviving corporation or purchaser, as the case may be, so
long as such assignee assumes the Company's obligations thereunder.
13. Notices. Any notice required or permitted to be given
under this Agreement shall be sufficient if in writing and sent by registered
mail to the Executive at his offices 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 or the Company at its address set forth above, Attention: Xxxx
Xxxxxxxx
14. Waiver of Breach. A waiver by the Company or the Executive
of a breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach by the other party.
15. Entire Agreement. This instrument contains the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written by any
director, officer, employee or representative of any party hereto, and any prior
agreement of the parties hereto in respect of the subject matter contained
herein. It may be changed only by an agreement in writing signed by a party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first hereinabove written.
XRG, INC.
By: __________________________________
Xxxxxx X. Xxxxxxx, Xx.
Chairman of the Board and
Executive Vice President
EXECUTIVE:
By: __________________________________
Xxxx Xxxxxxxx
