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Exhibit 10.25
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT"), dated as of the 24th day
of November, 1998, is entered into in Dallas, Texas by and between HighwayMaster
Corporation, a Delaware corporation, with its principal place of business
located at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000 ("EMPLOYER"),
and Xxxxxxx Xxxxx, an individual residing in Dallas Flower Mound, Texas
("EMPLOYEE").
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Employer and Employee, intending to be legally bound, hereby agree as
follows:
1. Employment Relationship. Employer hereby employs Employee, and
Employee hereby accepts such employment, upon the terms and conditions set forth
in this Agreement. Such employment relationship shall continue for the stated
term of this Agreement, as described in Section 8 hereof, or until the earlier
termination of such relationship and this Agreement pursuant to Section 6
hereof.
2. Position and Responsibilities of Employee. Employee shall
be employed as Chief Financial Officer, with job responsibilities related
thereto and to be expanded at the sole discretion of Employer. Employee shall
report to the President and shall devote such time, skill and attention to the
business of Employer as shall be required for the efficient management thereof,
and shall manage and supervise such business, and shall devote his full time
best efforts to the faithful performance of his duties on behalf of Employer.
Employee shall also perform such other duties, and may have job responsibilities
and titles modified from time to time as may be requested by the President or by
resolution of the Board of Directors of Employer, provided such duties and job
titles are generally consistent with the level of responsibility currently held
by Employee. Employee shall not engage in additional gainful employment during
the term of this Agreement without advance written consent from Employer.
3. Compensation. For all services rendered by Employee
pursuant to this Agreement, Employer shall pay to Employee, and Employee shall
accept as full compensation hereunder the following:
(a) Salary. Employee shall receive a salary of $12,500
per month payable by Employer in bi-monthly amounts in Dallas, Texas.
Employee's salary shall be subject to all appropriate federal and state
withholding taxes and shall be payable in accordance with the normal
payroll procedures of Employer.
(b) Benefits and Perquisites. Employee shall be entitled
to participate in the employee benefit plans provided by Employer for
all employees generally, and for executive employees of Employer.
Employer shall be entitled to change such plans from time to time,
EMPLOYMENT AGREEMENT - PAGE 1
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and the parties acknowledge that at the initial date of this Agreement
the fringe benefits provided to Employee include a corporate 401(k)
plan (contributions by Employee only), health and dental insurance for
the Employee, and reimbursement of certain expenses in accordance with
the policies and procedures of the Company.
(c) Signing Bonus. Employer shall pay to Employee a
signing bonus of $30,000 upon execution of this Agreement.
(d) Discretionary Bonuses. Employer shall establish an
incentive bonus plan for Employee based on various targets and
performance criteria to be established by the President and Board of
Directors in consultation with the Employee. The evaluation of the
performance of the Employee as measured by the applicable targets and
the awarding of applicable bonuses, if any, shall be at the sole
discretion of the President. The potential annual bonus which may be
awarded to Employee shall be in the amount of $25,000 at each fiscal
year end of Employer during the term of this Agreement, pro-rated for
partial years. Each annual discretionary bonus may be awarded in whole,
in part, or withheld in its entirety based on the level of incentive
bonus plan performance criteria achieved by Employee, in the sole
judgement of the President and Board of Directors.
4. Stock Options. Employee will be granted options to purchase
75,000 125,000 shares of common stock of the Employer's parent concurrent with
the execution of this Agreement. The terms and vesting of the stock options are
as set forth in the applicable Employee Stock Option Plan and Employee Stock
Option Agreement signed by the Employee concurrently with this Agreement.
5. Protective Covenants. Employee recognizes that his employment
by Employer is one of the highest trust and confidence because (i) Employee will
become fully familiar with all aspects of Employer's business during the period
of his employment with Employer, (ii) certain information of which Employee will
gain knowledge during his employment by Employer is proprietary and confidential
information which is of special and peculiar value to Employer, and (iii) if any
such proprietary and confidential information were imparted to or became known
by any person, including Employee, engaging in a business in competition with
that of Employer, hardship, loss and irreparable injury and damage could result
to Employer, the measurement of which would be difficult if not impossible to
ascertain. Employee acknowledges that any and all inventions, improvements,
discoveries, formulae, processes, products or designs developed by Employee
alone or in conjunction with others in connection with Employer's business
during the term of Employee's employment with Employer ("Proprietary
Information") shall be the sole and absolute property of Employer in perpetuity,
that Employee shall promptly disclose such Proprietary Information to Employer,
and Employee shall have no right, title or interest therein or to receive
additional monies therefor, regardless of whether development occurred during
working hours or any other time during the term of Employee's employment with
Employer. Employee shall assist Employer in obtaining patents on all such
Proprietary Information deemed patentable by Employer and shall execute all
documents necessary to obtain such patents and to vest Employer with full and
exclusive title to the patents and to provide testimony, documents, or otherwise
make himself available to protect the patents against infringement by others.
For purposes of this Agreement, an invention shall be deemed to have been
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made during the period of Employee's employment if, during such period, the
invention was conceived or first actually reduced to practice, and Employee
agrees that any patent application filed by Employee within one (1) year after
the termination of Employee's employment with Employer shall be presumed to
relate to an invention made during the term of Employee's employment with
Employer unless Employee can establish the contrary. Employee further
acknowledges that Employer has developed unique skills, concepts, sales
presentations, marketing programs, marketing strategy, business practices,
methods of operation, trademarks, licenses, technical information, Proprietary
Information, computer software programs, tapes and discs concerning its
operations systems, customer lists, customer leads, documents identifying past,
present and future customers, hiring and training methods, investment policies,
financial and other confidential and proprietary information concerning its
operations and expansion plans ("Trade Secrets"). Therefore, Employee agrees
that it is necessary for Employer to protect its business and that of its
affiliates from such damage, and Employee further agrees that the following
covenants constitute a reasonable and appropriate means, consistent with the
best interest of both Employee and Employer, to protect Employer or its
affiliates against damage due to loss or disclosure of Proprietary Information
or Trade Secrets and shall apply to and be binding upon Employee as provided
herein:
(a) Trade Secrets. Employee recognizes that his position
with Employer is one of the highest trust and confidence by reason of
Employee's access to and contact with certain Trade Secrets of
Employer. Employee agrees and covenants that, except as may be required
by Employer in connection with this Agreement, or with the prior
written consent of Employer, Employee shall not, either during the term
of this Agreement or thereafter, directly or indirectly, use for
Employee's own benefit or for the benefit of another, or disclose,
disseminate, or distribute to another, except as directed by Employer
or as required for the performance of Employee's duties on behalf of
the Employer, any Trade Secret (whether or not acquired, learned,
obtained, or developed by Employee alone or in conjunction with others)
of Employer or of others with whom Employer has a business
relationship. All memoranda, notes, records, drawings, documents, or
other writings whatsoever made, compiled, acquired, or received by
Employee during the term of this Agreement, arising out of, in
connection with, or related to any activity or business of Employer,
including, but not limited to, the customers, suppliers, or others with
whom Employer has a business relationship, the arrangements of Employer
with such parties, and the pricing and expansion policies and strategy
of Employer, are, and shall continue to be, the sole and exclusive
property of Employer and shall, together with all copies thereof and
all advertising literature, be returned and delivered to Employer by
Employee immediately, without demand, upon the termination of this
Agreement, or at any time upon Employer's demand.
Employee represents and warrants that he is not bound by any agreement
with any prior employer or other party that will be breached by execution and
performance of this Agreement, or which would otherwise prevent him from
performing his duties with Employer as set forth in this Agreement. Employee
represents and warrants that he has not retained any copies of proprietary and
confidential information of any prior employer, and he will not use or rely on
any confidential and proprietary information of any prior employer in carrying
out his duties for Employer.
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(b) Covenant Not to Compete. In the event this
Agreement is terminated for any reason, Employee hereby covenants and
agrees that for a period of 24 months after termination of this
Agreement for any reason, he will not directly or indirectly, either as
an employee, employer, consultant, agent, principal, partner,
shareholder (other than through ownership of publicly-traded capital
stock of a corporation which represents less than five percent (5%) of
the outstanding capital stock of such corporation), corporate officer,
director, investor, financier or in any other individual or
representative capacity, engage or participate in the wireless tracking
and communication services business for the long haul or regional
trucking industry in the United States of America, or in wireless
automotive vehicle security and roadside assistance services in the
United States of America, or in fleet tracking and dispatching services
in the United States of America.
(c) Non-Solicitation of Employees Employee agrees
that he will not, for a period of two years after he leaves the
employment of Employer, solicit for employment, encourage or refer any
other party to solicit for employment, or hire or cause to be hired any
employee of HighwayMaster.
(d) Survival of Covenants. Each covenant of Employee
set forth in this Section 5 shall survive the termination of this
Agreement and shall be construed as an agreement independent of any
other provision of this Agreement, and the existence of any claim or
cause of action of Employee against Employer whether predicated on this
Agreement or otherwise shall not constitute a defense to the
enforcement by Employer of said covenant.
(e) Remedies. In the event of breach or threatened
breach by Employee of any provision of this Section 5, Employer shall
be entitled to relief by temporary restraining order, temporary
injunction, or permanent injunction or otherwise, in addition to other
legal and equitable relief to which it may be entitled, including any
and all monetary damages which Employer may incur as a result of said
breach, violation or threatened breach or violation. Employer may
pursue any remedy available to it concurrently or consecutively in any
order as to any breach, violation, or threatened breach or violation,
and the pursuit of one of such remedies at any time will not be deemed
an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or threatened breach or
violation, or as to any other breach, violation, or threatened breach
or violation.
Employee hereby acknowledges that Employee's agreement to be bound by
the protective covenants set forth in this Section 5 was a material inducement
for Employer entering into this Agreement and agreeing to pay Employee the
compensation and benefits set forth herein.
6. Termination. The employment relationship between Employee
and Employer created hereunder shall terminate before the expiration of the
stated term of this Agreement upon the occurrence of any one of the following
events:
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(a) Death or Permanent Disability. The employment
relationship shall be terminated effective on the death or permanent
disability of the Employee.
(b) Termination for Cause. The following events,
which for purposes of this Agreement shall constitute "cause" for
termination:
(1) The breach by Employee of any provision
of Sections 1, 2 or 5 (including but not limited to a refusal
to follow lawful directives of the Senior Management or Board
of Directors of Employer which are not inconsistent with the
provisions of this Agreement);
(2) Any act of fraud, misappropriation or
embezzlement by Employee with respect to any aspect of
Employer's business;
(3) The illegal use of drugs by Employee
during the term of this Agreement that, in the determination
of the Senior Management of Employer, substantially interferes
with Employee's performance of his duties hereunder;
(4) Substantial failure of performance by
Employee, other than a failure permitted pursuant to
Subsection 6(a) above; or
(5) conviction of Employee by a court of
competent jurisdiction of a felony or of a crime involving
moral turpitude.
Any notice of discharge under Section 6(a) or 6(b) above shall
describe with reasonable specificity the cause or causes for the
termination of Employee's employment, as well as the effective date of
the termination (which effective date may be the date of such notice
under Subsection 6(a) or 6(b) above). If Employer terminates Employee's
employment for any of the reasons set forth above, Employer shall have
no further obligations hereunder from and after the effective date of
termination (other than as set forth below) and shall have all other
rights and remedies available under this or any other agreement and at
law or in equity.
(c) Termination by Employee. Employee may terminate
this Agreement without liability to Employer arising from the
resignation of Employee at any time during the term of this Agreement
upon 90 days or more (the "Notice Period") written notice to Employer.
In the event of a proper notice by Employee, the termination date of
Employee's employment and this Agreement with Employer shall be the
date provided in such notice, and Employee shall be entitled to
compensation during the Notice Period (ending in its entirety upon
completion of the Notice Period), as provided in Section 7 below. Upon
proper notice of Employee's voluntary termination, Employer has the
right to require Employee to cease his employment responsibilities
immediately; however, for purposes of the compensation, stock option
vesting, and all other benefits provided to Employee by or as a result
of this Agreement, Employee shall be considered an employee of Employer
for the entire Notice
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Period. If Employee terminates this Agreement with notice prior to
December 14, 1999, Employee shall be required to pay back, on a
pro-rata basis, the signing bonus set forth in Section 3(c) above.
(d) Termination by Employer with Notice. Employer may
terminate this Agreement without cause at any time upon 30 days'
written notice to Employee, during which period Employee shall not be
required to perform any services for Employer other than to assist
Employer in training his successor and generally preparing for an
orderly transition; PROVIDED, HOWEVER, that Employee shall be entitled
to compensation upon such termination as provided in Section 7 below.
7. Compensation Upon Termination. Upon the termination of
Employee's employment under this Agreement before the expiration of the stated
term hereof for any reason, Employee shall be entitled to (i) the salary earned
by him before the effective date of termination as provided in Section 3(a)
hereof (including salary payable during any applicable notice period), prorated
on the basis of the number of full days of service rendered by Employee during
the salary payment period to the effective date of termination, (ii) any
accrued, but unpaid, vacation or sick leave benefits, and (iii) any previously
authorized but unreimbursed business expenses. If Employee's employment
hereunder terminates because of the death or permanent disability of Employee,
all amounts that may be due to him under this Section 7 shall be paid to him or
his administrators, personal representatives, heirs and legatees, as may be
appropriate.
If Employee's employment hereunder terminates without cause pursuant to
Section 6(d) above, Employer shall pay to Employee (in addition to the amounts
set forth in Subsections 7(i), 7(ii), 7(iii) and 7(iv) above) salary payments
for the duration of the initial term of this Agreement as set forth in Section 8
below when and as such salary payments would have come due had the Employee's
employment not been terminated.
The provisions of Sections 5 and 7 hereof shall survive the termination
of the employment relationship hereunder and this Agreement to the extent
necessary or reasonably appropriate to effect the intent of the parties hereto
as expressed in such provisions.
8. Term. This Agreement shall be binding and enforceable
against Employer and Employee immediately upon its execution by both such
parties. The stated term of this Agreement and the employment relationship
created hereunder shall begin on December 14, 1998 (with employee to be bound by
confidentiality and other provisions set forth in Section 5 herein to the extent
confidential information is provided to Employee prior to such date), and shall
remain in effect for one year thereafter, unless sooner terminated in accordance
with Section 6 hereof. This Agreement shall be deemed to be renewed for a
month-to-month, at-will basis after its initial term unless the parties execute
an express written renewal agreement which specifies a different term.
9. Remedies. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in its favor. Notwithstanding Section 10
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below, the parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
10. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or relating to Employee's rights, compensation and
responsibilities as an employee shall be determined by arbitration in Dallas,
Texas in accordance with the rules of the American Arbitration Association then
in effect. The arbitration shall be submitted to a single arbitrator selected in
accordance with the American Arbitration Association's procedures then in effect
for the selection of commercial arbitrators. This Section 10 shall survive
termination of this Agreement for any reason.
11. Assignment. This Agreement is personal to Employee and may
not be assigned in any way by Employee without the prior written consent of
Employer. This Agreement shall not be assignable or delegable by Employer, other
than to an affiliate of Employer; provided, however, that in the event of the
merger or consolidation of Employer the obligations of Employer hereunder shall
be binding upon the surviving or resulting entity of such merger of
consolidation. The rights and obligations under this Agreement shall inure to
the benefit of and shall be binding upon the heirs, legatees, administrators and
personal representatives of Employee and upon the successors, representatives
and assigns of Employer.
12. Severability and Reformation. The parties hereto intend
all provisions of this Agreement to be enforced to the fullest extent permitted
by law. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance.
13. Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed by certified mail (return
receipt requested) or sent by overnight delivery service, cable, telegram,
facsimile transmission or telex to the parties at the following addresses or at
such other addresses as shall be specified by the parties by like notice:
(a) If to Employer: Xxxxxx X. Xxxxxxxxx
General Counsel
0000 Xxx Xxxxx
Xxxxxxxxxx, XX 00000
If to Employee: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
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Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth calendar day after posting, in the
case of notice so given by overnight delivery service, on the date of actual
delivery and, in the case of notice so given by cable, telegram, facsimile
transmission, telex or personal delivery, on the date of actual transmission or,
as the case may be, personal delivery.
14. Further Actions. Whether or not specifically required
under the terms of this Agreement, each party hereto shall execute and deliver
such documents and take such further actions as shall be necessary in order for
such party to perform all of his or its obligations specified herein or
reasonably implied from the terms hereof.
15. GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE DEEMED MADE
WHEN ACCEPTED BY HIGHWAYMASTER AT HIGHWAYMASTER'S EXECUTIVE OFFICE IN DALLAS,
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS
OF THE STATE OF SUCH OFFICE AND EMPLOYEE CONSENTS TO EXCLUSIVE JURISDICTION AND
VENUE AT THE SITE OF SUCH OFFICE, AND TO SERVICE OF PROCESS BY CERTIFIED OR
REGISTERED MAIL. EMPLOYEE ACKNOWLEDGES THAT HIS CONTACTS WITH THE STATE OF TEXAS
ARE SUBSTANTIAL AND CONTINUING, INCLUDING VISITS TO DALLAS FOR TRAINING, VARIOUS
ADMINISTRATIVE FUNCTIONS, ETC.
16. Entire Agreement and Amendment. This Agreement contains
the entire understanding and agreement between the parties, and supersedes any
other agreement between Employee and Employer, whether oral or in writing, with
respect to the subject matter hereof. This Agreement may not be altered,
amended, or rescinded, nor may any of its provisions be waived, except by an
instrument in writing signed by both parties hereto or, in the case of an
asserted waiver, by the party against whom the waiver is sought to be enforced.
17. Counterparts. This Agreement may be executed in
counterparts, with the same effect as if both parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
HIGHWAYMASTER CORPORATION
By: /S/ XXXX XXXXXXXXX XXXX
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XXXX XXXXXXXXX XXXX,
President and Chief Executive Officer
EMPLOYEE:
/S/ XXXXXXX XXXXX 11/30/98
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Xxxxxxx Xxxxx
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