EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This Agreement (“Agreement”) is entered
into as of June 29, 2009, by and between X.X.X Transportation Services, INC.
("XXX") and Xxxxxx X. Xxxxxxx (“EMPLOYEE”), and the parties therefore agree as
follows:
Subject to the terms and conditions
contained in this Agreement and during the Term of this Agreement (as defined
below), XXX hereby employs EMPLOYEE in the position of “President” with such
duties and responsibilities as are commensurate with such office and may from
time-to-time be assigned to EMPLOYEE by PAM’s Board of Directors.
EMPLOYEE hereby accepts such employment
as a full time employee, and while employed, shall devote his full business
time, skills, energy and attention to the business of XXX, shall perform his
duties in a diligent, loyal, businesslike and efficient manner, all for the sole
purpose of enhancing the business of XXX, and in a manner consistent with all
XXX policies, resolutions and directives from time to time stated or made by the
Board of Directors. Moreover, EMPLOYEE shall perform such services
and duties as are consistent with EMPLOYEE’s position, are necessary or
appropriate for the operation and management of XXX, and as are normally
expected of persons appointed to chief executive positions in the business in
which XXX is engaged.
1. Compensation for
Services
XXX shall pay to EMPLOYEE an annual
base salary of $400,000.00 as their President.
Base
Salary shall be payable in equal installments pursuant to PAM’s payroll system
in effect from time to time, less all applicable taxes required to be withheld
by XXX pursuant to federal, state or local law.
Employee will be reviewed annually for
changes in base compensation and bonus’.
2. Benefits
EMPLOYEE shall be entitled to fringe
benefits provided by XXX for its employees in the normal course of
business.
3. Business
Expenses
XXX shall reimburse EMPLOYEE for all
reasonable and necessary business expenses incurred by him in the performance of
his duties hereunder with respect to travel, entertainment and other business
expenses, subject to PAM’s business expense policies in effect from time to
time, including its procedures with respect to the manner of incurring,
reporting and documenting such expenses
4. Proprietary
Information
a. EMPLOYEE
shall forever hold in the strictest confidence and not disclose to any person,
firm, corporation or other entity any of PAM’s Proprietary Information (as
defined below) or any of PAM’s Records (as defined below) except as such
disclosure may be required in connection with EMPLOYEE’s work for XXX and as
expressly authorized by PAM’s Board of Directors in writing.
b. For
the purposes of this Agreement, the term “Proprietary Information” shall mean
inter company publications, unpublished works, plans, policies, computer and
information systems, software and other information and knowledge relating or
pertaining to the products, services, sales or other business of XXX or its
successor, affiliates and customers in any way which is of a confidential or
proprietary nature, the prices it obtains or has obtained from the sale of its
services, its manner of operation, its plans, processes or other data,
contracts, information about contracts, contract forms, business applications,
costs, profits, tax information, marketing information, advertising methods,
customers, potential customers, brokers, potential brokers, employees, matters
of a technical nature (including inventions, computer programs, concepts,
developments, contributions, devices, discoveries, software and documentations,
secret processes or machines, including any improvements thereto and know-how
related thereto, and research projects, etc.), and other information not
generally available to the public, without regard to whether all of the
foregoing matters will be deemed confidential, material or
important. Anything to the contrary notwithstanding, the parties
hereto stipulate that any and all knowledge, data and information gathered by
the EMPLOYEE through this Agreement, his employment with XXX and the operation
of the business of XXX is deemed important, material or confidential, and
gravely affects the effective and successful conduct of the business of XXX and
XXX 's good will; could not without great expense and difficulty be obtained or
duplicated by others who have not been able to acquire such information by
virtue of employment with XXX; and that any breach of the terms of this
Paragraph 4 shall be deemed a material breach of this Agreement.
c. EMPLOYEE
agrees that all creative work, including without limitation, designs, drawings,
specifications, techniques, models, processes and software prepared or
originated by EMPLOYEE during or within the scope of employment whether or not
subject to protection under the federal copyright or other law constitutes work
made for hire all rights to which are owned by XXX. Moreover,
EMPLOYEE hereby assigns to XXX all right, title and interest whether by way of
copyright, trade secret, patent or otherwise, and all such work whether or not
subject to protection by copyright or other law.
d. Upon
termination of employment with XXX or at any other time requested by XXX,
EMPLOYEE shall immediately return to XXX and not retain any copies of, any
records, data, lists, plans, policies, publications, computer and information
systems, files, diagrams and documentation, data, papers, drawings, memos,
customer records, reports, correspondence, note books, service listing and any
other business record of any kind or nature (including without limitation
records in machine-readable or computer-readable forms) relating to Proprietary
Information (“Records”).
5. Covenant Not To
Compete
a. As
a material part of the consideration for this Agreement, EMPLOYEE agrees to the
following covenants not to compete with XXX, and with all of its affiliated
companies listed in Exhibit A to this Agreement ("Affiliated Companies") during
his employment and for a one (1) year period following the termination of
EMPLOYEE's employment with XXX for any reason. EMPLOYEE agrees not to
interfere with customer contracts or solicit customers for a period of one (1)
year. These restrictions shall apply to all XXX Customers and
Customers of Affiliated Companies. EMPLOYEE further agrees not to
solicit, retain, employ or accept business that is competitive from any XXX
employees, agents or owner operators, or the employees, agents or owner
operators of any Affiliated Companies. In the event Employee is terminated
pursuant to Section 8 subsection (d), the Covenant Not to Compete will be for a
period of six (6) months unless the company elects the option to extend the
Covenant Not To Compete up to one (1) year provided the separation agreement in
Section 8 subsection (d) provides for compensation up to one (1) year. Anything
contrary notwithstanding, this Paragraph 5 shall survive after the termination
or the earlier cancellation of this Agreement.
b. Both
parties agree that the restrictions in this section are fair and reasonable in
all respects including the length of time that they shall remain in effect and
that XXX 's employment of EMPLOYEE upon the terms and conditions of this
Agreement is fully sufficient consideration for EMPLOYEE's obligations under
this section.
c. If
any provisions of this section are ever held by a Court to be unreasonable, the
parties agree that this section shall be enforced to the extent it is deemed to
be reasonable.
6. No Interference With
Employment Relationships
EMPLOYEE agrees that he will not either
before or after termination of his employment with XXX encourage, solicit or
otherwise attempt to persuade any other employee of XXX to leave the employment
of XXX. In the event EMPLOYEE hires an employee of XXX, XXX shall be
compensated at a fee equal to 30% of the employee's first year's gross
compensation. This paragraph 6 also applies to employees of companies
on Exhibit A.
7. Equitable Relief And
Remedies At Law
EMPLOYEE acknowledges that XXX would
suffer unique and irreparable injury in the event of a breach of the covenants
contained in Sections 4, 5 and 6 of this Agreement, which breach could not be
adequately compensated by the payment of damages alone. Accordingly
in the event of any such breach by EMPLOYEE, EMPLOYEE agrees that this Agreement
may be enforced by a decree of specific performance or an injunction without the
necessity of posting a bond in addition to any remedies available at law,
including damages arising out of or relating to a breach of those covenants, and
that any remedy which XXX might have at law would be inadequate by
itself.
8. Termination of
Agreement
a. Without
limitation of any other remedy available to XXX, whether in law or in equity,
EMPLOYEE’s employment relationship shall terminate immediately without any
further liability of XXX to EMPLOYEE, upon written notice from XXX to EMPLOYEE,
for just cause: conviction of a crime, moral turpitude, gross
negligence in the performance of duties, intentional failure to perform duties,
failure to perform duties as designated in this agreement, insubordination or
dishonesty. In the event of EMPLOYEE’s termination pursuant to this
Section 8(a), XXX shall have no obligation to pay Base Salary and benefits
beyond last day worked.
b. EMPLOYEE’s
employment relationship shall terminate immediately upon death of
EMPLOYEE.
c. EMPLOYEE
agrees to submit to a medical examination at any time at PAM's request and
expense. The medical examination will be related to EMPLOYEE's job
and consistent with a business necessity of XXX. This Agreement may
be terminated by XXX immediately upon written notice to EMPLOYEE if the
examination reveals that EMPLOYEE is unable to perform the essential functions
of this Agreement even with a reasonable accommodation. The Agreement
may also be terminated if, for a period of three (3) consecutive months,
EMPLOYEE is unable to perform the essential functions of the Agreement even with
a reasonable accommodation. Upon such termination due to medical disability,
EMPLOYEE's compensation shall be continued for six (6) months from the date of
disability.
d. Upon
the determination by PAM’s Board of Directors that the best interests of XXX
would be served, XXX shall have the further right to terminate EMPLOYEE’s
employment relationship immediately or at any time, at its option upon written
notice to EMPLOYEE, without just cause. If EMPLOYEE is terminated
pursuant to this Section 8(d), EMPLOYEE shall be entitled to receive only Base
Salary and benefits (XXX will make Cobra payments) and any earned but unpaid
bonus for a period of six (6) months following such termination, provided that
Employee signs the provided Separation Agreement (similar to the attached
separation agreement). If PAM’s Board of Directors elect to extend the Covenant
Not To Compete up to one (1) year they agree to extend Base Salary and benefits
up to one (1) year. These payments shall not constitute employment for purpose
of Section 5.
e. Any
compensation payable to EMPLOYEE pursuant to this Section 8 following
termination pursuant to subsection (d) of this Section 8 shall be reduced by the
amount of any compensation earned by EMPLOYEE in any employment or consulting he
may undertake during said period that constitutes a violation of Section 5
respecting non-competition.
f. Upon
three months’ prior written notice to XXX at any time, EMPLOYEE shall have the
right to terminate his employment relationship with XXX at his
option. Upon receipt of such notice XXX shall have the option to
terminate EMPLOYEE’s employment relationship
immediately
upon written notice to EMPLOYEE. In the event of termination pursuant
to this Section 8(f), EMPLOYEE shall be entitled to receive Base Salary and
benefits only through the three month period following EMPLOYEE’s notice of
termination. The time period on the covenant not to compete shall
commence at the end of the three (3) month period, and EMPLOYEE shall also be
bound by the covenant not to compete during the three (3) month period he is
receiving Base Salary and benefits. EMPLOYEE shall be liable for all
costs and expenses incurred by XXX for the failure to give three (3) months'
notice.
g. Upon
termination of this Agreement by XXX EMPLOYEE shall, without a claim for
compensation, provide XXX with written resignations from any and all offices
held by him in or at the request of XXX, and in the event of his failure to do
so, XXX is hereby irrevocably authorized to be, or designated as EMPLOYEE’s
attorney in fact, to act in his name and in his behalf to execute such
resignations.
9. No Restriction on
Performance of Services Contemplated by Agreement
EMPLOYEE represents and warrants to XXX
that: (i) he is under no contractual or other restriction which
would give a third party a legal right to assert that he would not be legally
permitted to perform the services contemplated by this Agreement; and
(ii) by entering into this Agreement he has not breached, and by performing
the services contemplated by this Agreement, he would not breach, any Agreement
or duty relating to proprietary information of another person or
entity.
11. Severability
In case any one or more of the
provisions hereof shall be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein. To the extent possible, there shall be deemed substituted
such other provision as will most nearly accomplish the intent of the parties,
to the extent permitted by applicable law.
12. Entire
Agreement
This Agreement embodies all the
representations, warranties, covenants and agreements of the parties in relation
to the subject matter hereof, and no representations, warranties, covenants,
understandings, or agreements, unless expressly set forth herein or in an
instrument in writing signed by the party to be bound thereby which makes
reference to this Agreement, shall be considered effective.
13. No Rights in Third
Parties
Nothing herein expressed or implied is
intended to, or shall be construed to confer upon, or give to any person, firm
or other entity other than the parties hereto any rights or remedies under this
Agreement, except as provided in Section 14.
14. Assignment
XXX may assign its rights and delegate
its responsibilities under this Agreement to any affiliated company or to any
corporation which acquires all or substantially all of the operating assets of
XXX by merger, consolidation, dissolution, liquidation, combination, sale or
transfer of assets or stock or otherwise. EMPLOYEE shall not be
entitled to assign his rights or delegate his responsibilities under this
Agreement to any person.
15. Payment to
Estate
No
person, firm or entity shall have any right to receive any payments owing to
EMPLOYEE hereunder, except that EMPLOYEE’s estate/trust shall be entitled to
receive a final payment of installment of Base Salary for services rendered to
XXX through date of death, deferred executive bonus payouts as they become due
and reimbursement for any business expenses previously incurred by EMPLOYEE for
which he would have been entitled to reimbursement hereunder.
16. Amendment
No modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto.
17. Survival of
Covenants
Without limitation of any other
provisions of this Agreement, all representations and warranties set forth in
this Agreement and the covenants set forth in Sections 4, 5 and 6 shall survive
the termination of this Agreement for any reason for the maximum period
permitted by law.
18. Governing
Law
This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts) of
the State of Michigan. The parties agree that should any litigation arise out
of, in connection with, or relating to this Agreement, such litigation will be
commenced in a the Circuit Court for Macomb County Michigan or in the United
States District Court for the Eastern District of Michigan provided such court
has subject matter jurisdiction and venue.
20. Notices.
Service of all notices under this
Agreement must be given personally to the party involved at the address set
forth below or at such other address as such party shall provide in writing from
time to time.
COMPANY: Xxxxxxx
Xxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
EMPLOYEE:
Xxxxxx X.
Xxxxxxx Xxxxxx
X. Xxxxxxx
(home
address) or 000
Xxxx Xxxxx Xx Xxxxx
Xxxxxxxxx,
XX 00000
(principal
executive offices)
21. Paragraph
Headings
The titles to the paragraphs of this
Agreement are for convenience of the parties only and shall not affect in any
way the meaning or construction of any Paragraph of this Agreement.
22. Non-Waiver.
No covenant or condition of this
Agreement may be waived except by the written consent of XXX Board of
Directors. Forbearance or indulgence by XXX in any regard whatsoever
shall not constitute a waiver of the covenants or conditions to be performed by
EMPLOYEE to which the same may apply, and, until complete performance by
EMPLOYEE of said covenant or condition, XXX shall be entitled to invoke any
remedy available to XXX under this Agreement or by law or in equity, despite
said forbearance or indulgence.
23. Construction
Although this Agreement was drafted by
XXX the parties agree that it accurately reflects the intent and understanding
of each party and should not be construed against XXX if there is any dispute
over the meaning or intent of any provisions.
24. This agreement is not
binding or effective until approved by the XXX Board of
Directors.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and delivered as of the day and
year first above written.
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X.X.X.
TRANSPORTATION SERVICES, INC.
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By: /s/ Xxxxx X. Xxxxx
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By: /s/ Xxxxxxx Xxxxxx
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[Witness]
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Xxxxxxx
Xxxxxx
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Chairman
of the board
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By: .
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By: /s/ Xxxxxx X.
Xxxxxxx
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[Witness]
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Xxxxxx
X. Xxxxxxx
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(home
address)
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EXHIBIT
A
1.
Central Transport International, Inc.
2.
Central Transport, Inc.
3.
Logistics Insights Corporation, Inc.
4. X.X.X.
Transportation Services, Inc.
5.
Universal Truckload Services, Inc.
