Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into on this 1st day of July,
2000, by and between NATIONS EXPRESS INC., a North Carolina corporation
("Employer"), and XXX XXXXXXXXXX, an individual residing in Los Angeles,
California ("Employee"). The purpose of this Agreement is to set forth the terms
and conditions upon which the Employer and the Employee have agreed to create an
employer-employee relationship.
ARTICLE I
EMPLOYMENT OF EMPLOYEE
1.01 Employment. In consideration of a proposed Initial Public Offering
of the common stock of the Company, the Employer and Employee have each agreed
to the terms outlined in the following employment agreement. The Employee is
hereby employed as the Vice President of Western Operations, of the Employer.
The Employee shall perform such duties commensurate with his position and
responsibilities as the President and Board of Directors of the Employer shall
direct. All services to be rendered by the Employee shall be performed to the
best of his ability and in furtherance of the welfare and development of the
Employer. The Employee shall work at the California offices of the Employer and
at such other place or places as may be reasonably required from time to time to
fulfill his obligations hereunder.
1.02 Hours of Employment. The Employee shall work such hours as may be
necessary to properly conduct the duties and functions of the Employee
hereunder.
1.03 Fulfillment of Duties. The Employee agrees to devote such
productive time, ability, and attention to the business of the Employer during
the term of this Agreement as may be required for the efficient performance of
his duties set forth in Section 1.01 herein. The Employee shall not directly or
indirectly render any services of a business, commercial, or professional nature
to any individual, corporation, partnership, joint venture or other entity, if
and to the extent that such services are in conflict with Employee's duties to
Employer under this Agreement.
1.04 Nepotism Policy. Employee acknowledges that Employer is concerned
about the potential personnel problems and/or conflicts of interest that could
develop if employees with hiring responsibility hire family members and/or
relatives. Accordingly, Employee will not hire as an employee of Employer any
family member or relative of (i) Employee, (ii) any officer of Employer or (iii)
any member of the Board of Directors of Employer, unless approved in advance by
the Board of Directors Compensation Committee of Employer.
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ARTICLE II
TERM OF EMPLOYMENT
2.01 Basic Term. The term of the employment of the Employee pursuant to
the terms of this Agreement shall commence on the date initially set forth above
and shall continue until December 31, 2004. This Agreement may be terminated
earlier as herein provided in Section 6.01 of this Agreement.
ARTICLE III
COMPENSATION
3.01 Basic Compensation. As compensation for services rendered under
this Agreement, the Employer shall pay to Employee an annual salary, of $96,000
payable in accordance with the regular payroll practices of the Employer. The
Employee shall be entitled to an annual review by the Compensation Committee in
accordance with the Company's normal performance review practices.
3.02 Executive Bonus Compensation. In addition to the basic
compensation set forth in Section 3.01 above, the Employee may be entitled to
participate in a Management Bonus Plan. Such bonus shall be approved by the
Board of Director's Compensation Committee and will generally be based on the
performance of the Company and the operations under the management of the
Employee. Bonus if earned will be payable within sixty (60) days after the audit
report is formally issued regarding each applicable fiscal year end commencing
with the June 30, 2001, fiscal year end. Payment of the bonus upon termination
of Employee's employment is governed by the Compensation Committee and Section
6.02(c).
3.03 n/a
3.04 Annual Review. The Employer agrees that it will review the basic
compensation (and the criteria therefor) for the Employee at the conclusion of
twelve months of employment, and not less than once each twelve months
thereafter.
3.05 Other Benefits. The Employer shall provide to the Employee, in
addition to the foregoing compensation, thc following benefits:
(a) The Employee shall participate in the Company's auto allowance and
shall be applied by the Employee to the purchase, and maintenance
(including insurance) or lease of a car of the Employee's choice;
(b) The Employee shall be entitled to paid vacation of not less than
three (3) weeks per calendar year.
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ARTICLE IV
REIMBURSEMENT OF EMPLOYEE EXPENSES
4.01 Business Expenses. The Employer shall reimburse the Employee for
normal and reasonable documented business expenses incurred in the performance
of his duties hereunder upon the presentation of vouchers or receipts for such
expenses, using Company approved expense reports.
ARTICLE V
PROPERTY RIGHTS
5.01 Trade Secrets. The Employee during the term of employment under
this Agreement will have access to and develop knowledge regarding various trade
secrets, consisting of formulas, methods, processes, and compilations of
information, records, and specifications concerning customers, potential
customers, services, business methods, training methods, proprietary
information, computer programs, marketing strategies and other corporate data
which are owned by, or which will be developed on behalf of, the Employer and
which are regularly used in the operation of the business of the Employer (the
"Trade Secrets"). The Employee shall not divulge publish, disclose, or otherwise
reveal any of the aforesaid Trade Secrets, either directly or indirectly, to any
person, firm, corporation or any third party, nor use them in any way, either
during the term of this Agreement or at any time thereafter, except as required
in the course of his employment. All files, records, documents, specifications,
memoranda, notes and similar items relating to the business of the Employer
shall remain the exclusive property of the Employer.
5.02 Records. All files, records, documents, drawings, specifications,
equipment, and similar items relating to the business of the Employer
("Records"), whether prepared by the Employee or otherwise coming into his
possession, shall remain the exclusive property of the Employer. All such
Records shall immediately be placed in the possession of the Employer upon the
termination of this Agreement, or at any other time specified by the Employer.
The retention and use of duplicates in any form of such Records by the Employee
is prohibited after the termination of this Agreement, unless agreed to in
writing by a majority of the Board of Directors of the Employer.
5.03 Restrictive Covenant.
(a) The Employee covenants and agrees that the Employee shall not enter
into or engage generally in direct competition with the Employer
either as an individual on his own or as an partner or joint
venturer, or as an employee, consultant or agent for any family
member, relative, person, firm, corporation or other third party,
or as an officer, director, shareholder or otherwise, for the
period of two years after this contract is terminated. Further, the
Employee covenants and agrees not to contact, on behalf of the
Employee or any other person, any customer or potential customer of
the Employer, other than for a valid business purpose of the
Employer and for the benefit of the Employer for the period
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beginning with the execution of this contract, and for a period of
two years after this contract is terminated. The term "potential
customer" shall mean any person or entity contacted by the
Employee, the Employer, or any of its affiliates, officers,
directors, employees, shareholders or representatives during the
term of the Employee's employment for purposes of soliciting their
business.
(b) The covenant on the part of the Employee contained in Section
5.03(a) shall be independent and shall continue for its term in the
event and from the date this Agreement is breached or terminated by
thc Employee or Employer. The covenants on the part of the Employee
shall be construed as agreements independent of any other provision
of this Agreement, and the existence of any claim or cause of
action of the Employee against the Employer, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Employer of such covenants. The Employee
recognizes that such covenants on the part of the Employee are an
important inducement to the Employer in executing this Agreement.
ARTICLE VI
TERMINATION
6.01 Termination by Employer for Cause. This Agreement may be
terminated by the Employer for good cause upon ten (10) days written notice to
Employee. Such termination shall be without prejudice to any right or remedy to
which the Employer may be entitled either at law, in equity, or under this
Agreement. Without prejudice to the generality of the right to terminate for
good cause, each of the following contingencies will be good cause:
(a) Should the Employee by reason of' injury or illness fail to perform
his duties as an employee under this Agreement for more than 180
consecutive days;
(b) Should the Employee, for reasons other than (i) vacation leave in
accordance with the Employer's policies existing from time to time
and in accordance with this Agreement, (ii) illness or (iii)
injury, absent;
(c) Absent himself from his duties without the consent of the Board of
Directors of the Employer for more than ten (10) consecutive
business days;
(d) Should the Employee be convicted of a felony or a crime involving
moral turpitude or a crime which, in the sole judgment of the
Employer, materially adversely affects the utility of the services
of the Employee to the Employer in its business;
(e) Should the Employee engage in any activity related to the business
of the Employer that would constitute a material conflict of
interest with the Employer without the consent of the Board of
Directors of Employer,
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(f) Should the Employee be grossly negligent in the performance of his
duties hereunder, or other-wise fail to comply with the material
terms and conditions of this Agreement, unless waived in writing by
the Board of Directors of Employer; or
(g) Should the Employee's conduct constitute material willful
misconduct; or
(h) The death of the Employee.
Any decision to terminate this Agreement pursuant to this Section 6.01
shall be made by the affirmative vote of a majority of the members of the Board
of Directors other than Employee if Employee is a member of the Board of
Directors at the time the vote is taken.
6.02 Effect of Termination on Compensation.
(a) In the event this agreement is terminated by the Employer for
reasons other than good cause, prior to the completion of the
initial term of employment specified herein, or any extensions of
the agreement, the Employee shall be entitled to the remainder of
the unearned basic compensation as provided for in this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.01 Notices. Any notices to be given hereunder by either party to the
other may be effected either by hand delivery, in writing, with evidence of
receipt or by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the Employee at the addresses
latest appearing on the Employer's personnel records, but the Employee may
change his address by written notice in accordance with this paragraph. Mailed
notices to Employer shall be addressed to: Mr. The Company's Chief Financial
Officer at the office of the Employer. (which may be changed upon written
notification to Employee). Notices delivered personally shall be deemed
communicated as of thc date of actual receipt and mailed notices shall be deemed
communicated as of the date three (3) days after mailing in accordance herewith.
7.02 Inclusion of Entire Agreement Herein. This Agreement supersedes
any and all other agreements, either oral or in writing, between the parties
hereto with respect to the employment of the Employee by the Employer and
contains all of the covenants and agreements between the parties with respect to
such employment in any manner whatsoever.
7.03 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
7.04 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which such party may be
entitled.
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7.05 Payment of Moneys Due Deceased Employee. If the Employee dies
prior to the expiration of the employment term, any moneys that may be due him
from the Employer under this Agreement as of the date of his death shall be paid
to his designated beneficiary, executors, administrators, heirs, personal
representative, successors, or assigns, as the case may be.
7.06 Amendment. This Agreement may be amended from time to time only by
the mutual consent in writing signed by both the Employee and the Employer.
7.07 Benefit and Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective heirs,
executors, administrators, successors, and permitted assigns and shall be read
with all changes of number and gender as may be required by the context, save
and except the agreement to employ is personal to the Employee.
7.08 Effect of Waiver. The failure of any party to seek redress for
violation of or to insist upon the performance of any provision of this
Agreement does not constitute a waiver of seeking redress if that violation
continues or occurs again.
7.09 Illegality; Invalidly. Every provision in this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
legality or validity of the remainder of this Agreement, and such illegal or
invalid provision shall be modified to he extent necessary to make it legal,
valid, and enforceable.
7.10 Rights and Remedies Cumulative. The rights and remedies provided
in this Agreement are cumulative and the use of any one right or remedy by a
party shall not preclude or waive its right to use any or all of the remedies.
Said right and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
7.11 Headings. Headings are included for ease of reference only and
shall not be considered in the interpretation or meaning of any provision of
this Agreement.
EXECUTED as of the date first written above.
EMPLOYER:
NATIONS EXPRESS INC.
By: /s/ Xxxxx Xxxxxx
Its: President and Chief Executive officer
DATE:
EMPLOYEE:
XXX XXXXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxxxx
Date: 8/25/00
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