Exhibit 10.68
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EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective November __, 1999, by and between United Shipping & Technology, Inc.,
a corporation duly organized and existing under the laws of the State of Utah,
with a place of business at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxx, hereinafter
referred to as "UST", and Xxxxxxx Xxxxxx, hereinafter referred to as
"Executive".
ARTICLE 1
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EMPLOYMENT
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1.01. Executive is currently employed by UST without a written contract of
employment. UST hereby agrees to employ Executive as Chief Financial Officer and
Executive hereby accepts and agrees to such employment from and after the date
of this agreement, on the terms and conditions of this agreement.
1.02. Executive shall generally have the authority, responsibilities, and
perform such duties as are customarily performed by chief financial officer in
other or similar businesses as that engaged in by UST. A list of duties and
responsibilities for this position is attached hereto, and incorporated as a
part hereof, as Exhibit A. Executive shall also render such additional services
and duties as may be reasonably requested of him from time to time by UST's
Board of Directors.
1.03. Executive shall report to the chief executive officer of UST, and
shall generally be subject to direction, orders and advice of the chief
executive officer. UST retains the discretion to transfer or reassign Executive
to another executive position or to other executive duties and any such transfer
or reassignment shall not affect the enforcement of this Agreement.
ARTICLE 2
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BEST EFFORTS OF EXECUTIVE
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2.01. Executive agrees that he will at all times faithfully,
industriously, and to the best of his ability, experience, and talents, perform
all of the duties that may be required of and from him pursuant to the express
and implicit terms of this Agreement, to the reasonable satisfaction of UST.
ARTICLE 3
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TERM OF EMPLOYMENT AND AGREEMENT
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3.01. The Term of Executive's employment with UST pursuant to this
Agreement shall be two (2) years from the date of this Agreement, subject to the
provisions set forth in Article 6 of this Agreement. Upon the expiration of this
initial two-year Term, this Agreement shall be automatically extended for six
(6) month periods unless either Executive or UST provides the other with written
notice of intention not to renew at least thirty (30) days prior to the
expiration of the current or any extension term.
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ARTICLE 4
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COMPENSATION AND BENEFITS
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4.01. Executive will be paid an annualized base salary of Two Hundred
Fifty Thousand and no/100 Dollars ($250,000.00). Executive's base salary shall
be payable in equal installments pursuant to UST's normal payroll procedures and
dates. UST's Board of Directors shall review Executive's base salary
compensation annually at the conclusion of UST's fiscal year. At that time,
Executive's base salary will be increased by a percentage amount equal to the
then current Consumer Price Index, but not to exceed three (3) percent per year.
Any other actual increase in Executive's base salary shall be made within UST's
sole judgment and discretion and shall be based on an analysis of total
compensation paid to chief financial officers of comparable entities within this
region and any other criteria UST determines are appropriate. Such base
compensation shall not be subject to decrease unless the Board of Directors
takes action to effect a uniform percentage decrease in compensation for all
senior executives of UST and its major subsidiaries.
4.02. Executive shall be eligible to receive such fringe benefits as are,
and may be, made available to other executive employees of UST from time to time
in the exclusive discretion of UST's Board of Directors. Such benefits may
include, but are not limited to, a medical and dental plan, short term
disability plan, long term disability plan, and a life insurance plan. UST is
not obligated to provide or continue any of these benefits and may, without any
prior notice, discontinue any benefit already provided or as may be provided in
the future, within the exclusive discretion of UST's Board of Directors.
4.03. Executive shall be eligible to receive annual discretionary
incentive bonus compensation upon achievement of personal and overall company
goals as are determined and approved by UST's Board of Directors with input from
Executive. Any bonus payments shall be made within ninety (90) days following
the completion of each fiscal year. Any dispute between Executive and UST as to
the amount of, or entitlement to, any bonus shall be promptly addressed by the
Board of Directors Compensation Committee. Unresolved disputes shall be
submitted to arbitration in Minneapolis, Minnesota, in accordance with the
applicable rules of the American Arbitration Association.
ARTICLE 5
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VACATION AND LEAVE OF ABSENCE
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5.01. Executive is entitled to twenty-one (21) days of paid vacation per
year, in addition to UST's normal holidays. Vacation time will be scheduled
taking into account the Executive's duties and obligations at UST. Sick leave,
holiday pay and all other leaves of absence will be in accordance with UST's
stated personnel policies. Vacation days not used in any year may be carried
over to the following year.
ARTICLE 6
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TERMINATION
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6.01. Executive may resign his position and terminate his employment by
giving UST six (6) months written notice of his intention to resign. If
requested by UST, Executive agrees to cooperate in training his successor until
his actual termination. In the event of such resignation, Executive shall
receive only that compensation earned through his last day of employment;
provided, however, that Executive shall be entitled to all or a portion of any
bonus due Executive pursuant to any bonus plan or arrangement established prior
to termination, to the extent earned or performed based upon the requirements or
criteria of such plan or arrangement, as the Board shall in good faith
determine.
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6.02. UST may, subject to applicable law, terminate this Agreement by
giving Executive two (2) months notice if Executive, due to sickness or injury,
is prevented from carrying out his essential job functions for a period of six
(6) months or longer. In the event of such termination, Executive shall receive
only that compensation earned through the date of termination; provided,
however, that Executive shall be entitled to all or a portion of any bonus due
Executive pursuant to any bonus plan or arrangement established prior to
termination, to the extent earned or performed based upon the requirements or
criteria of such plan or arrangement, as the Board shall in good faith
determine.
6.03. Executive's employment and this Agreement will be deemed terminated
upon the death of the Executive. In the event of such termination, Executive
shall receive only compensation earned through the date of termination provided,
however, that Executive shall be entitled to all or a portion of any bonus due
Executive pursuant to any bonus plan or arrangement established prior to
termination, to the extent earned or performed based upon the requirements or
criteria of such plan or arrangement, as the Board shall in good faith
determine.
6.04. Any other provision of this Agreement notwithstanding, UST may
terminate Executive's employment without notice if the termination is based on
any of the following events that constitute Cause:
(a) Any conviction or nolo contendere plea by Executive to a felony,
gross misdemeanor or misdemeanor involving moral turpitude, or any
public conduct by Executive that has or can reasonably be expected
to have a detrimental effect on UST; or
(b) Any fraud, misappropriations or embezzlement by Executive or
intentional material damage to the property or business of UST; or
(c) Executive's failure to perform his duties and responsibilities in
accordance with the provisions of this Agreement, or Executive's
violation of specific written lawful directions of the Board of UST.
In the event of such termination, and not withstanding any contrary provision
otherwise stated, Executive shall receive only his base salary earned through
the date of termination.
6.05. The employment of the Executive shall in no event be considered to
have been terminated for Cause if the termination of his employment took place:
(a) as a result of an act or omission which occurred more than 360 days
prior to the Executive's having been given notice of the termination
of his employment for such act or omission, unless the commission of
such act or such omission could not at the time of such commission
or omission have been known to a member of the Board of Directors of
UST (other than the Executive, if he is then a member of the Board
of Directors), in which case more than 360 days from the date that
the commission of such act or such omission was or could reasonably
have been so known; or
(b) as a result of the continuing course of action which commenced and
was or reasonably could have been known to a member of the Board of
Directors of UST (other than the Executive) more than 360 days prior
to notice having been given to the Executive of the termination of
his employment.
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ARTICLE 7
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SEVERANCE
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7.01. If either (a) UST, its successors or assigns, terminates Executive's
employment for any reason other than those listed in Sections 6.02, 6.03, and
6.04 above or (b) Executive resigns his employment pursuant to Section 6.01,
UST, its successors or assigns, shall:
(a) pay Executive as severance pay each month for eighteen (18)
consecutive months following his termination or resignation his
monthly base salary in effect at the time of separation, less
customary withholdings, beginning one (1) month after termination;
(b) if Executive timely elects to continue his group health and dental
insurance coverage pursuant to applicable COBRA/continuation law and
the terms of the respective benefit plans, pay on Executive's behalf
the premiums for such coverage for the lesser of twelve (12) months
or such time as Executive's COBRA/continuation rights expire;
(c) cause the immediate vesting of any unvested stock options then held
by Executive; and
(d) provide or reimburse Executive for outplacement services and related
benefits for a period of twelve (12) months in an aggregate amount
not to exceed $20,000.00.
ARTICLE 8
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NONDISCLOSURE
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8.01. Except as permitted or directed by UST or as may be required in the
proper discharge of Executive's employment hereunder, Executive shall not,
during the Term or at any time thereafter, divulge, furnish or make accessible
to anyone or use in any way any confidential, trade secret or proprietary
information of UST, including without limitation, whether or not reduced to
writing, customer lists, customer files or information, planning and financial
information, contracts, sales and marketing information, business strategy or
opportunities for new or developing business, which Executive has prepared,
acquired or become acquainted with during his employment by UST. Executive
acknowledges that the above-described knowledge or information is the property
of UST that constitutes a unique and valuable asset and represents a substantial
investment by UST, and that any disclosure or other use of such knowledge or
information, other than for the sole benefit of UST, would be wrongful and would
cause irreparable harm to UST. Executive agrees to at all times maintain the
confidentiality of such knowledge or information, to refrain from any acts or
omissions that would reduce its value to UST, and to take and comply with
reasonable security measures to prevent any accidental or intentional disclosure
or misappropriation. Upon termination of Executive's employment for any reason,
Executive shall promptly return to UST all such confidential, trade secret and
proprietary information, including all copies thereof, then in Executive's
possession, control or influence, whether prepared by Executive or others.
8.02. The foregoing obligations of confidentiality shall not apply to any
knowledge or information the entirety of which is now published or subsequently
becomes generally publicly known, other than as a direct or indirect result of
the breach of this Agreement by Executive or a breach of a confidentiality
obligation owed to UST by any third party.
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8.03. In the event of a breach or threatened breach by Executive of the
provisions of this Article 8, UST shall be entitled to an injunction restraining
Executive from directly or indirectly disclosing, disseminating, lecturing upon,
publishing or using such confidential, trade secret or proprietary information
(whether in whole or in part) and restraining Executive from rendering any
services or participating with any person, firm, corporation, association or
other entity to whom such knowledge or information (whether in whole or in part)
has been disclosed, without the posting of a bond or other security. Nothing
herein shall be construed as prohibiting UST from pursuing any other equitable
or legal remedies available to it for such breach or threatened breach,
including the recovery of damages from Executive. Executive agrees that UST
shall be entitled to recover its costs of litigation, expenses and attorney fees
incurred in enforcing this Agreement.
8.04. The Executive understands and agrees that any violation of this
Article 8 while employed by UST may result in immediate disciplinary action by
UST, including termination of employment pursuant to Section 6.04 hereof.
8.05. The provisions of this Article 8 shall survive termination of this
Agreement indefinitely.
ARTICLE 9
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NONCOMPETITION AND NON-RECRUITMENT
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9.01. UST and Executive recognize and agree that: (i) Executive has
received, and will in the future receive, substantial amounts of highly
confidential and proprietary information concerning UST, its business, customers
and employees; (ii) as a consequence of using or associating himself with UST's
name, goodwill, and reputation, Executive will develop personal and professional
relationships with UST's current and prospective customers and clients; and
(iii) provision for non-competition and non-recruitment obligations by Executive
is critical to UST's continued economic well-being and protection of UST's
confidential and proprietary business information. In light of these
considerations, this Article 9 sets forth the terms and conditions of
Executive's obligations of non-competition and non-recruitment during the Term
of and subsequent to the termination of this Agreement and/or Executive's
employment for any reason.
9.02. Unless the obligation is waived or limited by UST as set forth
herein, Executive agrees that during the term of Executive's employment pursuant
to this Agreement and for a period of twelve (12) months following termination
of Executive's employment for any reason, Executive will not directly or
indirectly (a) solicit or do competitive business with any person or entity that
is or was a customer or vendor of UST within the twelve (12) months prior to the
date of termination, or (b) engage within the North American markets in which
UST engages in business at the time of termination, in any similar or related
business activity in competition with UST's direct line of business as conducted
at the time of Executive's termination. Among all other competitive actions that
are likewise restricted, Executive shall not cause or attempt to cause any
existing or prospective customer, client or account who then has a relationship
with UST for current or prospective business to divert, terminate, limit or in
any adverse manner modify, or fail to enter into any actual or potential
business with UST.
9.03. At its sole option, UST may, by express written notice to Executive,
waive or limit the time and/or geographic area in which Executive cannot engage
in competitive activity or the scope of such competitive activity.
9.04. For a period of twelve (12) months following termination of
Executive's employment for any reason, Executive will not initiate or actively
participate in any other employer's recruitment or hiring of any of UST's
employees.
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9.05. Executive agrees that breach by him of the provisions of this
Article 9 will cause UST irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Executive of the
provisions of this Article 9, UST shall be entitled to an injunction restraining
Executive from directly or indirectly competing or recruiting as prohibited
herein, without posting a bond or other security. Nothing herein shall be
construed as prohibiting UST from pursuing any other equitable or legal remedies
available to it for such breach or threatened breach, including the recovery of
damages from Executive. Executive agrees that UST shall be entitled to recover
its costs of litigation and attorney fees incurred in enforcing this Agreement.
9.06. The Executive understands and agrees that any violation of this
Article 9 while employed by UST may result in immediate disciplinary action by
UST, including termination of employment pursuant to Section 6.04 hereof.
9.07. The obligations contained in this Article 9 shall survive the
termination of this Agreement indefinitely.
ARTICLE 10
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MISCELLANEOUS
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10.01. Governing Law. This Agreement shall be governed and construed
according to the laws of the State of Minnesota without regard to conflicts of
law provisions, except insofar as the corporate laws of Utah may be applicable.
10.02. Successors. This Agreement is personal to Executive and Executive
may not assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder, to any other person or entity. This Agreement
may be assigned by UST and UST may require any successors or assigns to
expressly assume and agree to perform UST's obligations under this Agreement.
10.03. Waiver. The waiver by UST of the breach or nonperformance of any
provision of this Agreement by Executive will not operate or be construed as a
waiver of any future breach or nonperformance under any such provision of this
Agreement or any similar agreement with any other employee.
10.04. Modification. This Agreement supersedes and replaces any and all
prior oral or written understandings, if any, between the parties relating to
the subject matter of this Agreement, which are hereby revoked. The parties
agree that this Agreement (a) is the entire understanding and agreement between
the parties and (b) is the complete and exclusive statement of the terms and
conditions thereof, and there are no other written or oral agreements in regard
to the subject matter of this Agreement. This Agreement shall not be changed or
modified except by a written document signed by the parties hereto.
10.05. Severability and Blue Penciling. To the extent that any provision
of this Agreement shall be determined to be invalid or unenforceable as written,
the validity and enforceability of the remainder of such provision and of this
Agreement shall be unaffected. If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, UST and Executive
specifically authorize the tribunal making such determination to edit the
invalid or unenforceable provision to allow this Agreement, and the provisions
thereof, to be valid and enforceable to the fullest extent allowed by law or
public policy.
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IN WITNESS WHEREOF the following parties have executed the above
instrument the day and year first above written.
UNITED SHIPPING & TECHNOLOGY, INC.
By:
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Xxxxx X. Xxxxxxx
Its: Chair of the Board of Directors
Compensation Committee
By:
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Xxxxxxx X. Xxxxxxx
Its: Secretary and General Counsel
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Xxxxxxx Xxxxxx
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EXHIBIT A
DUTIES AND RESPONSIBILITIES
As Chief Financial Officer of the Company, Executive shall, under the
direction and control of the Company's Chief Executive Officer, have the
following duties and responsibilities:
1. Ensure the compliance of the Company and its subsidiaries with all
financial and accounting requirements, including the financial
reporting and disclosure requirements of the Securities and Exchange
Commission and Nasdaq, as well as compliance with the loan covenants
and other requirements of the Company's lenders and financial
partners;
2. Oversee and direct the activities of the Company's independent
accountants, including audits and SEC filing requirements, as
necessary in the conduct of the Company's business;
3. Prepare and present for regular review to the Board of Directors and
management of the Company, and when required to the Company's
investment bankers, financing partners and others, such financial
reports and projections as required to keep said persons informed as
to the Company's current and anticipated financial performance and
to allow the Company's management to make decisions as to the
implementation of the Company's strategy;
4. Analyze the financial performance of third parties as necessary for
the implementation of the Company's merger and acquisition
activities, and develop financial strategies needed to fund and
conduct those activities; and
5. Perform such other functions as necessary or appropriate to carry
out the directives of the Company's Chief Executive Officer.
