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EXHIBIT 10.9
[EAGLEUSA LOGO]
EMPLOYMENT AGREEMENT
THIS AGREEMENT CREATES AND AFFECTS SIGNIFICANT LEGAL RIGHTS FOR BOTH YOU AND THE
COMPANY. READ IT CAREFULLY AND BE CERTAIN THAT YOU UNDERSTAND IT BEFORE YOU
AGREE TO ITS TERMS. IF YOU THINK YOU MIGHT WISH TO FIRST CONSULT WITH A LAWYER,
THE COMPANY URGES YOU TO DO SO.
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into between XXXX
XXXXXXX (the "Employee") and EAGLE USA AIRFREIGHT, INC. (the "Company").
WHEREAS, the Company wishes to employ Employee under the terms and
conditions set forth below, and the Employee wishes to accept such employment
under the terms and conditions set forth below.
WHEREAS, Employee acknowledges that Employee has read and is fully
familiar with the terms of this Agreement, that Employee has had a reasonable
opportunity to consider this Agreement and to seek legal counsel, and that after
such review, Employee finds that the promises and considerations provided by
Employee in this Agreement are not greater than necessary for the protection of
the Company's good will and legitimate business interests and do not create
undue hardship for the Employee or the public,
NOW, THEREFORE, for and in consideration of the above stated premises,
and the mutual promises and agreements set forth herein, the parties agree as
follows:
1. ARBITRATION. The Company and Employee agree that in the event of any legal
dispute between the parties concerning this Agreement or legal rights
arising from or relating to the employment relationship between the Company
and Employee, the parties shall submit their dispute to binding
arbitration. Provided, however, that the Company may, at any time, pursue
the preliminary injunctive remedies specifically provided for in Paragraph
5(g) below in a court of law and thereafter require arbitration of all
remaining issues of final relief. This provision does not prohibit Employee
from filing a charge with a federal administrative agency. Insured workers
compensation claims (other than wrongful discharge claims), and claims for
unemployment insurance are excluded from arbitration under this provision.
The arbitration will be conducted under the authority of the Federal
Arbitration Act. The Arbitration will be conducted by the American
Arbitration Association, or other mutually agreeable arbitration service.
The arbitrator(s) shall be duly licensed to practice law in the State of
Texas. Either party may pursue a motion for summary judgment from the
arbitrator(s) which shall be decided under the federal standard. Each party
will be allowed at least one deposition. The arbitrator(s) shall be
required to state in a written opinion all facts and conclusions of law
relied upon to support any outcome determinative error of state or federal
law, or to fashion a cause of action or whether the arbitrator(s) authority
has been exceeded will be resolved by summary judgment in a court of law.
In all other respects, the arbitration process will be conducted in
accordance with the American Arbitration Association employment arbitration
rules or other mutually agreeable arbitration service rules with each
party's expenses therefrom to be borne by that party unless otherwise
determined by the arbitrator(s). All proceedings shall be conducted in
Houston, Texas, or another mutually agreeable site. The duty to arbitrate
described above shall survive the termination of this Agreement. The
parties hereby waive trial in a court of law or by jury. All other rights,
remedies, time limitations and defenses applicable to claims asserted in a
court of law will apply in the arbitration.
2. DUTIES. Upon the effective date of this Agreement, Employee (i) shall
commence to perform the duties of the position to which he or she is
assigned, and (ii) shall devote such time, ability, skills and attention to
the business of the Company as shall be reasonably necessary to perform the
assigned duties and performance targets, (iii) shall perform the duties in
a reasonable, timely and professional manner, and (iv) shall comply with
all
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EMPLOYMENT AGREEMENT PAGE 1 XXXX X. XXXXXXX - CORP.
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applicable policies and rules of the Company. Employee's position will
involve Employee being in charge of Domestic Operations (Company-wide) of
the Company's operations in the area assigned to Employee, involves
providing unique or special services, and will require Employee to exercise
independent discretion without day to day supervision.
3. TERM, TERMINATION AND COMPENSATION. The following terms of employment will
apply:
a. TERM. Company agrees to employ Employee for an initial term of
thirty (30) days (the "Initial Term"), and as an Employee with no
definite term or tenure of employment thereafter. Recoverable
damages, if any, for termination of employment will be limited to
the Employee's Ordinary Wages for the remaining portion of the
Initial Term or pay period the Employee is in at the time. "Pay
Period" means the bi-weekly or monthly period within which
Employee receives a pay check. "Ordinary wages" shall be
calculated based on the per diem average of Employee's wages
(excluding bonuses, contests, or other unusual awards) in the
previous thirty (30) day period or such shorter period as Employee
has been or presumed to extend past the Initial Term, or notice
period in effect thereafter, for purposes of any damage
calculation.
b. TERMINATION. Employment may be terminated by the Employee, with or
without cause, at any time, so long as fourteen (14) days notice
to the Company is provided. During the Initial Term, employment
may only be terminated by the Company for "cause". After the
Initial Term, Company may terminate Employee's employment (a) at
its discretion, with or without "cause", upon fourteen (14) days
notice, or (b) without any notice for "cause". As used here,
"cause" will include death, the elimination of Employee's
position, an indication of any intent to quit by Employee,
insubordination, lies or misrepresentations to the Company,
inability to perform essential functions of the job after
accommodation or leave are applied to the extent required by law,
failure or refusal to perform assigned duties, fraud, negligence,
violation of Company rules of behavior, or a failure to abide by
the terms of this Agreement.
c. EARLY PAYMENT. The Company may buy off the unexpired portion of
the Initial Term or thereafter provide pay in lieu of fourteen
days notice, at any time, by paying Employee his or her ordinary
wages for the remainder of that applicable time period.
d. COMPENSATION. Company shall provide Employee wages and benefits
subject to adjustment at the discretion of the Company during
employment. Employee authorizes the Company to make any deductions
from his or her compensation, including his or her final pay
check, that are deemed necessary by the Company to comply with
state or federal laws on withholdings, to compensate for property
not returned, or to recover advances paid to Employee. To the
extent Employee is paid by commission, Employee understands and
agrees that credit for sales towards a commission are not
considered earned unless full payment is received for the sale and
full compliance with all terms of this Agreement is maintained. As
concerns commissions that are not paid or sales towards a
commission that are not credited at the time Employee's employment
with the Company terminates, the outstanding commission will not
be considered earned or payable, and will be forfeited along with
any other incentive compensation, if the Company determines that
Employee has failed to comply with the protective covenants in
sections 4 and 5 below.
4. BUSINESS INTERESTS AND OBLIGATIONS. The following are the parties'
agreements as to the legitimate protectible business interests of the
Company:
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EMPLOYMENT AGREEMENT PAGE 2 XXXX X. XXXXXXX - CORP.
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a. TRADE SECRETS. During the Initial Term, and as deemed necessary by
the Company thereafter, Employee will be given access to and
allowed to become familiar with various trade secrets of the
Company which are applicable to the Employee's position under the
Company's normal policies and procedures. These trade secrets may
include, without limitation, compilations of market information,
customer lists, and business plans of the Company. Employee agrees
that Employee shall not disclose any of the trade secrets,
directly or indirectly, nor use them in any way, either during the
term of this agreement or at any time thereafter, except as
required in the ordinary course of Employee's employment for the
benefit of Company.
b. CONFIDENTIAL INFORMATION. During the Initial Term, and as deemed
necessary by the Company thereafter, the Company will provide
Employee confidential information, and/or access to confidential
information, that is applicable to the Employee's position under
the Company's normal policies and procedures. The parties agree
that, for purposes of this Agreement, "Confidential Information"
is information acquired by the Employee in the course and scope of
his or her activities for the Company that is designated by the
Company as "confidential" or that the Company indicates through
its policies, procedures, or other instructions should not be
disclosed to anyone outside the Company except through controlled
means. The controlled disclosure of Confidential Information to
customers or vendors for legitimate business purposes and the
availability of the Confidential Information to others outside the
Company through independent investigation and effort will not
remove it from protected as Confidential Information status under
this Agreement if the employee acquired the Confidential
Information while employed with the Company. Employee agrees to
use such Confidential Information for the exclusive benefit of the
Company, and Employee shall not, during employment with the
Company or thereafter, directly or indirectly, use the
Confidential Information for any other purpose. Confidential
information may also be protected as trade secret under Paragraph
4(a) above. Some examples of Confidential Information are internal
financial statements and analysis, personnel files and
evaluations, internal pricing and cost information, customer lists
and contacts information, salary and compensation information, and
information concerning specific customer needs.
c. GOODWILL. During the Initial Term, and as deemed necessary by the
Company thereafter, Company agrees to provide Employee with
compensation, expense reimbursements in accordance with Company
policy limits, confidential information, and contact with
customers, contractors, vendors and co-workers, in order to help
Employee develop goodwill for the Company, where applicable to
Employee's position under the Company's normal policies and
procedures. Employee agrees to use the goodwill developed with the
Company's customers, contractors, vendors and co-workers for the
exclusive benefit of the Company.
5. PROTECTIVE COVENANTS. Employee agrees that the following covenants are
reasonable and necessary protective covenants for the protection of the
business interests described in Paragraph 4 above:
a. DEFINITIONS. "Competing Business" means any business involving
freight logistics, freight forwarding, or any related activities
that involve the same type of services sold by the Company, or any
business so similar in nature that it would displace business
opportunities or customers of the Company. "Covered Customer"
means those customer entities and/or persons who did business with
the Company and that Employee either (a) received Confidential
Information about, or (b) had contact with within the last twenty
four (24) month period that Employee was employed with
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EMPLOYMENT AGREEMENT PAGE 3 XXXX X. XXXXXXX - CORP.
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Company. "Restricted Area" means (a) a one hundred fifty (150)
mile radius of any station of the Company that Employee worked out
of, provided services to, or provided supervision over, and (b)
any location, storefront, address or place of business where a
Covered Customer is present and available for solicitation.
Employee may not circumvent the purpose of any restriction by
engaging in business in the Restricted Area through remote means
like telephone, correspondence, or computerized communication.
b. HANDLING OF COVERED ITEMS. All information and material covered by
Paragraphs 4 (a)-(c) shall remain the exclusive property of the
Company, and shall not be removed from the premises of the company
without the prior consent of the Company. If removed from the
Company premises by consent, such information and material will be
used only for the benefit of the Company in the ordinary course of
business. All documents covered by Paragraphs 4 (a)-(c) are, and
shall continue to be, the property of the Company, and shall,
together with all copies thereof, be returned and delivered to the
Company by Employee immediately without demand, upon the
termination of the Employee's employment with the Company, and
shall be returned at any time if the Company so demands.
c. RESTRICTION ON INTERFERING WITH EMPLOYEE RELATIONSHIPS. Employee
agrees that during employment with Company, and for a period of
twelve (12) complete calendar months following the termination of
Employee's employment with the Company, Employee will not, either
directly or indirectly, hire, call on, solicit, or take away, or
attempt to call on, solicit or take away any of the employees or
officers of the Company or encourage any employees or officers of
the Company to terminate their relationship with the Company,
without the prior written consent of Xxxxx X. Xxxxx or his
designee.
d. RESTRICTION ON INTERFERING WITH CUSTOMER RELATIONSHIPS. Employee
agrees that during employment with the Company, and for a period
of twelve (12) complete calendar months following the termination
of Employee's employment with the Company, Employee will not,
directly or indirectly, except in connection with Employee's
employment with the Company, service, call on, solicit, or take
away, or attempt to call on, solicit, or take away any of the
Covered Customers of the Company in the Restricted Area, without
the prior written consent of Xxxxx X. Xxxxx or his designee.
e. RESTRICTION ON UNFAIR COMPETITION. Employee agrees that during
employment with the Company, Employee will not participate in any
way in a Competing Business. Employee agrees that for twelve (12)
complete calendar months following termination of employment,
Employee will not actively participate in a Competing Business in
the Restricted Area by providing services (whether as an employee,
agent, consultant, advisor, independent contractor, or other
capacity) to a Competing Business in a position that would involve
the use or disclosure of Company trade secrets or Confidential
Information, that has substantially the same functions and/or
responsibilities as a position Employee held with Company, or that
involves supervision over substantially the same functions and/or
responsibilities.
Employee agrees that during employment with the Company, Employee
will not participate in any way in a Competing Business. Employee
agrees that for twelve (12) complete calendar months following
termination of employment, Employee will not actively participate
in a Competing Business in the Restricted Area. For purpose of
this paragraph, "actively participate in" includes participating,
directly or indirectly, either as an employee, consultant,
partner, shareholder (other than through ownership of
publicly-traded capital stock of a corporation which represents
less than ten percent (10%) of the outstanding capital stock of
such corporation),
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EMPLOYMENT AGREEMENT PAGE 4 XXXX X. XXXXXXX - CORP.
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lender, corporate officer, director, or in any other capacity, in
assisting a Competing Business if the participation would involve,
in any way, influence or input into the Competing Business'
business decisions or relationships with customers."
Employee agrees that competition in violation of these terms is
intrinsically unfair to the Company because it would involve
inevitable disclosure of trade secrets and confidential
information, as well as conversion of the Company's investment in
goodwill and training and confusion over company names and
associations.
f. SURVIVAL OF COVENANTS. Each restriction set forth in Paragraph 5
hereof shall survive the termination of Employee's employment with
the Company. The existence of any claim or cause of action of the
Employee against the Company whether predicated on this Agreement
or otherwise shall not constitute a defense to the enforcement by
the Company of said covenant. In the event an enforcement remedy
is sought under Paragraph 5(g), the time periods provided for in
Paragraph 5 shall be extended by one day for each day Employee
failed to comply with the restriction at issue.
g. REMEDIES. In the event of breach or threatened breach by Employee
of any provision of Paragraph 5 hereof, the Company shall be
entitled to (i) injunctive relief by temporary restraining order,
temporary injunction, and/or permanent injunction, (ii) recovery
of all attorney's fees and costs incurred by the Company in
obtaining such relief, and (iii) any other legal and equitable
relief to which it may be entitled, including any and all monetary
damages which the Company may incur as a result of said breach or
threatened breach. An agreed amount for the bond to be posted if
an injunction is sought by the Company, is $1,000. The Company may
pursue any remedy available, including declaratory relief,
concurrently or consecutively in any order as to any breach,
violation, or threatened breach or violation, and the pursuit of
one such remedy at any time will not be deemed an election of
remedies or waiver of the right to pursue any other remedy. The
Company has the right to pursue partial enforcement, and/or to
seek declaratory relief regarding the enforceable scope of this
Agreement without penalty and without waiving the Company's right
to pursue any other available remedy subsequent to declaratory
relief.
h. EARLY RESOLUTION CONFERENCE. This Agreement is understood to be
clear and enforceable as written and is executed by both parties
on that basis. However, should Employee later challenge any
provision as unclear, unenforceable, or inapplicable to activity
that Employee intends to engage in, Employee will first notify the
Company in writing and meet with a Company representative and a
neutral mediator (if the Company elects to retain one at its
expense) to discuss resolution of any disputes between the
parties. Employee will provide this notification at least fourteen
(14) days before Employee engages in any activity on behalf of a
Competing Business or engages in other activity that could
foreseeably fall within a questioned restriction. The failure to
comply with this requirement shall waive Employee's right to
challenge the reasonable scope, clarity, applicability, or
enforceability of the Agreement and its restrictions at a later
time. All rights of both parties will be preserved if the Early
Resolution Conference requirement is complied with even if no
agreement is reached in the conference.
i. CHANGES IN RESTRICTIONS. The parties agree that the Company may
change the scope, geography and/or time limitations which apply to
the restrictions in Paragraph 5 as a condition of a reassignment,
promotion, or other change in position, compensation, or duties
for the Employee. The agreements in Paragraphs 4 and 5 are
independently sufficient to support this option provided to the
Company. Such a change in the terms of this Agreement will be made
in
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writing by a duly authorized officer of the Company. The Company
will give the Employee at least fourteen (14) days written notice
of the change in terms. Employee's act in continuing employment
after the effective date will be deemed an acceptance of the
change.
j. ANCILLARY INTERESTS. The parties agree that any one of the
agreements in Paragraphs 4(a) - (c) standing alone, will be deemed
an otherwise enforceable agreement at the time this Agreement was
made, and gives rise to the need for the restrictions in
Paragraphs 5 (a) - (h).
6. MERGER OR ACQUISITION DISPOSITION. In the event the Company should
consolidate, or merge into another entity, or transfer all or substantially
all of its assets to another entity, or divide its assets among a number of
entities, this Agreement shall continue in full force and effect with regard
to the surviving entity.
7. NOTICES. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or on the date deposited in a
receptacle maintained by the United States Postal Service for such purpose,
postage prepaid, by certified mail, return receipt requested, addressed to
the Company at:
EAGLE USA AIRFREIGHT, INC.
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: XXXXX X. XXXXX
and to the Employee at the address set forth below Employee's signature on
the signature page hereto. Either party hereto may designate a different
address by providing written notice of such new address to the other party
hereto.
8. SEVERABILITY. If any provision contained in this Agreement is determined to
be void, illegal or unenforceable, in whole or in part, then the other
provisions contained herein shall remain in full force and effect as if the
provision which was determined to be void, illegal, or unenforceable had not
been contained herein. If the restrictions in paragraph 5 are deemed
unenforceable as written, the parties expressly authorize the court to
revise, delete, or add to the restrictions contained in Paragraph 5 of the
Agreement to the extent necessary to enforce the intent of the parties and
to provide the Company's goodwill, confidential information, and other
business interests with effective protection.
9. WAIVER, OPPORTUNITY TO CURE, MODIFICATION, AND INTEGRATION. The waiver by
any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach by any party;
provided, however, that if Employee becomes aware of any breach of any
material term of this agreement by the Company, Employee will give the
company written notice of the alleged breach within seven (7) days and give
the Company thirty (30) days to cure such alleged breach. Employee's failure
to provide this notice and opportunity to cure will waive any right of
Employee to assert that alleged breach at a later time. This instrument
contains the entire agreement of the parties. This Agreement may not be
modified, altered or amended except by written agreement of all the parties
hereto, except as provided in Paragraph 5 (i)above or by order of the court
pursuant to Paragraph 8 above.
10. BINDING EFFECT. This Agreement shall be binding and effective upon the
Company and its successors and permitted assigns, and upon Employee,
Employee's heirs and representatives.
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11. GOVERNING LAW. It is the intention of the parties that the laws of the State
of Texas should govern the validity of this Agreement, the construction of
its terms, and the interpretation of the rights and duties of the parties
hereto; provided, however, that federal law will control as to the
arbitration clause. The agreed venue and jurisdiction for any claims or
disputes under this Agreement is Houston, Texas.
12. REPRESENTATION OF EMPLOYEE. Employee hereby represents and warrants to the
Company that Employee has not previously assumed any obligations
inconsistent with those contained in this Agreement, and will not use,
disclose, or otherwise rely upon any confidential information or trade
secrets derived from any previous employment, if Employee has any, in the
performance of his duties on behalf of the Company.
13. COUNTERPART EXECUTION. This Agreement may be executed in two or more
identical counterparts, each of which shall be deemed an original, but all
of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties agree to the foregoing terms with an effective
date of September 24, 1998.
EMPLOYEE: /s/ XXXX X. XXXXXXX
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Signature
Printed Name: XXXX X. XXXXXXX
Address: 0000 XXXXXXX XX
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City, State Zip XXXXXXX, XX 00000
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COMPANY: EAGLE USA AIRFREIGHT
By: /s/ XXXXX X. XXXXX
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Printed Name: XXXXX X. XXXXX
Title: PRESIDENT
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EMPLOYMENT AGREEMENT ADDENDUM
(FOR EXISTING EMPLOYEES)
As an addendum to the Employment Agreement between XXXX X. XXXXXXX (the
"Employee") and EAGLE USA AIRFREIGHT (the "Company") dated September 24, 1998
(the "Employment Agreement"). Company agrees to pay to Employee the sum of one
hundred dollars ($100) within thirty (30) days of the date of this agreement as
consideration for Employee's agreement to the terms of this Employment Agreement
Addendum, in addition to and in further support of the mutual promises and
agreements set forth in the Employment Agreement. In exchange, Employee agrees:
a) that all rights and remedies provided for in any prior employment
agreements between the parties are fully replaced with the new rights and
remedies provided for in the Employment Agreement
b) that goodwill developed with the Company's customers by Employee in the
past is now the property of the Company, whether previously so agreed or
not
c) that Trade Secrets and Confidential Information of the Company acquired by
Employee during past employment with the Company is now to be used by
Employee for the exclusive benefit of the Company, whether previously so
agreed or not, and
d) that all provisions of the Employment Agreement including, without
limitation, the arbitration clause and protective covenants, will be
complied with by Employee from the date of this addendum forward. The
definitions applied in the Employment Agreement also apply to this
Employment Agreement Addendum.
EMPLOYEE: /s/ XXXX X. XXXXXXX COMPANY: EAGLE USA AIRFREIGHT
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Printed Name: XXXX X. XXXXXXX By: /s/ XXXXX X. XXXXX
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Address: 0000 XXXXXXX XX Printed Name: XXXXX X. XXXXX
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City, State, Zip: XXXXXXX, XX 00000 Title: President
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Date: 9-28-98 Date: 9-24-98
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