EXHIBIT 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of December 5, 1997, by and
between TELETRAC, INC., a Delaware corporation (the "Company"), and XXXX
X. XXXX (the "Employee").
W I T N E S S E T H:
WHEREAS the Company desires to induce the Employee to enter into
employment with the Company for the period provided in this Agreement, and
the Employee is willing to accept such employment with the Company on a
full-time basis, all in accordance with the terms and conditions set forth
below;
NOW, THEREFORE, for and in consideration of the premises hereof
and the mutual covenants contained herein, the parties hereto hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby employs the Employee,
and the Employee hereby accepts such employment with the Company, for the
period set forth in Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) The Employee affirms and represents that he is under no
obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this
Agreement.
2. Term of Employment. Unless earlier terminated as
hereinafter
provided, the term of the Employee's employment under this Agreement shall
be for a period beginning on the date hereof and ending on December 31,
1998. The period from the date hereof until the date the Employee's
employment hereunder is terminated (whether on December 31, 1998 or
earlier as provided herein) is hereinafter called the "Employment Term."
3. Duties. The Employee shall be employed as the Vice
President
of Finance and Corporate Development of the Company, shall faithfully and
competently perform such duties as are specified in the Bylaws of the
Company and shall also perform and discharge such other executive
employment duties and responsibilities consistent with his position as
Vice President of Finance and Corporate Development as the Board of
Directors of the Company,
the Senior Team or (when an individual is retained by the Company to
occupy such position) the Chief Executive Officer or Chief Operating
Officer of the Company may from time to time reasonably prescribe. The
Employee shall perform his duties at such places and times as the Board of
Directors of the Company may reasonably prescribe; PROVIDED, HOWEVER, that
if compliance with this requirement would require the Employee to relocate
more than 40 miles from his current home in Kansas City, Missouri, the
Employee will only be required to relocate on such terms and to such
location as is mutually acceptable to the Employee and the Company.
Except as may otherwise be approved in advance by the Board of Directors
of the Company, and except during vacation periods and reasonable periods
of absence due to sickness, personal injury or other disability, personal
affairs or non-profit public service activities, the Employee shall devote
his full time during normal business hours throughout the Employment Term
to the services required of him hereunder. The Employee shall render his
business services exclusively to the Company during the Employment Term
and shall use his best efforts, judgment and energy to improve and advance
the business and interests of the Company in a manner consistent with the
duties of his position.
4. Salary, Bonus and Stock Option. (a) Salary. As
compensation
for the performance by the Employee of the services to be performed by the
Employee hereunder during the Employment Term, the Company shall pay the
Employee a base salary at the annual rate of one hundred fourteen thousand
one hundred and twenty eight dollars ($114,128) (said amount, together
with any increases thereto as provided in this Section 4(a), being
hereinafter referred to as "Salary"). Any Salary payable hereunder shall
be paid in regular intervals (but in no event less frequently than
monthly) in accordance with the Company's payroll practices from time to
time in effect. The Salary payable to the Employee pursuant to this
Section 4(a) may be increased as determined from time to time by the Board
of Directors of the Company in its sole discretion.
(b) Bonus. (i) The Employee shall be eligible to receive
bonus
compensation from the Company in respect of each fiscal year (or portion
thereof) occurring during the Employment Term in an amount up to 20% of
his then current Salary, to be determined by the Board of Directors of the
Company.
(ii) In the event the Employee is still employed by the Company
on December 31, 1999, the Employee shall receive bonus compensation from
the Company in respect of fiscal year 1999 of 100% of his then current
Salary.
Any bonus payable hereunder shall be paid as promptly as
practicable as determined by the Board of Directors in its sole
discretion.
(c) Withholding, Etc. The payment of any Salary and bonus
hereunder shall be subject to applicable withholding and payroll taxes,
and such other deductions as may be required under the Company's employee
benefit plans.
(d) Stock Option. The Employee shall be eligible to
participate
in the Company's stock option plans on the same basis as similarly
situated employees of the Company. The Employee expressly acknowledges
that any grants to him under such plans shall be determined in the sole
discretion of the Board of Directors of the Company and the Compensation
Committee thereof.
5. Other Benefits. During the Employment Term, the Employee
shall:
i) be eligible to participate in employee fringe benefits and
pension and/or profit sharing plans that may be provided by the Company
for its senior executive employees in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
ii) be eligible to participate in any medical and health plans
or other employee welfare benefit plans that may be provided by the
Company for its senior executive employees in accordance with the
provisions of any such plans, as the same may be in effect from time to
time;
iii) be entitled to three weeks' annual paid vacation;
iv) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable to
senior executive employees from time to time; and
v) be entitled to reimbursement for all reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the
performance of his duties hereunder in accordance with the Company's
policies applicable thereto.
6. Confidential Information. The Employee hereby covenants,
agrees and acknowledges as follows:
(a) The Employee has and will have access to and will
participate in the development of or be acquainted with confidential
or proprietary information and trade secrets related to the business
of the Company, its subsidiaries and affiliates (collectively, the
"Companies"), including but not limited to (i) business plans,
operating plans, marketing plans, financial reports, operating data,
budgets, wage and salary rates, pricing strategies and information,
terms of agreements with suppliers or customers and others, customer
lists, patents, devices, software programs, reports, correspondence,
tangible property and specifications owned by or used in the
businesses of one or more of the Companies, (ii) information
pertaining to future developments such as, but not limited to,
research and development, future marketing, distribution, delivery or
merchandising plans or ideas, and potential new business locations,
and (iii) other tangible and intangible property, which are used in
the business and operations of the Companies but not made publicly
available. The information and trade secrets relating to the
business of the Companies described hereinabove in this paragraph (a)
are hereinafter referred to collectively as the "Confidential
Information", provided that the term Confidential Information shall
not include any information (x) that is or becomes generally publicly
available (other than as a result of violation of this Agreement by
the Employee) or (y) that the Employee receives on a nonconfidential
basis from a source (other than the Company, its affiliates or
representatives) that is not known by him to be bound by an
obligation of secrecy or confidentiality to the Companies or any of
them.
(b) The Employee hereby assigns to the Company, in
consideration of his employment, all Confidential Information
developed by or otherwise in the possession of the Employee at any
time during the Employment Term, whether or not made or conceived
during working hours, alone or with others, which relates, directly
or indirectly, to businesses or proposed businesses of any of the
Companies, and the Employee agrees that all such Confidential
Information shall be the exclusive property of the Companies. Upon
request of the Board of Directors of the Company, the Employee shall
execute and deliver to the Companies any specific assignments or
other documents appropriate to vest title in such Confidential
Information in the Companies or to obtain for the Companies legal
protection for such Confidential Information.
(c) The Employee shall not disclose, use or make known for his
or another's benefit any Confidential Information or use such
Confidential Information in any way except in the best interests of
the Companies in the performance of the Employee's duties under this
Agreement. The Employee may disclose Confidential Information when
required by applicable law or judicial process, but only after notice
to the Company of the Employee's intention to do so and opportunity
for the Company to challenge or limit the scope of the disclosure.
(d) The Employee acknowledges and agrees that a remedy at law
for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees
that the Companies shall be entitled to injunctive relief in addition
to any other available rights and remedies in case of any such breach
or threatened breach; PROVIDED, HOWEVER, that nothing contained
hereinshall be construed as prohibiting the Companies from
pursuing any other rights and remedies available for any such
breach or threatened breach.
(e) The Employee agrees that upon termination of his employment
by the Company for any reason, the Employee shall forthwith return to
the Company all Confidential Information, documents, correspondence,
notebooks, reports, computer programs and all other materials and
copies thereof (including computer discs and other electronic media)
relating in any way to the business of the Companies in any way
developed or obtained by the Employee during the period of his
employment with the Company.
(f) The obligations of the Employee under this Section 6 shall,
except as otherwise provided herein, survive the termination of the
Employment Term and the expiration or termination of this Agreement
and shall terminate three years after the termination of the
Employment Term.
(g) Without limiting the generality of Section 10 hereof, the
Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors
and legal representatives.
7. Termination. (a) The Employee's employment hereunder shall
be
terminated upon the occurrence of any of the following:
i) death of the Employee;
ii) termination of the Employee's employment hereunder by the
Employee at any time for "good reason" (as defined below);
iii) termination of the Employee's employment hereunder by the
Employee at any time for any reason whatsoever (including, without
limitation, resignation or retirement), other than "good reason" as
contemplated by clause (ii) above;
iv) termination of the Employee's employment hereunder by the
Company because of the Employee's inability to perform his duties on
account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, within any
period of twelve (12) consecutive months;
v) termination of the Employee's employment hereunder by the
Company at any time "for cause" (as defined below), such termination
to take effect immediately upon written notice from the Company to
the Employee; and
vi) termination of the Employee's employment hereunder by the
Company at any time, other than (x) termination by reason of
disability or incapacity as contemplated by clause (iv) above or (y)
termination by the Company "for cause" as contemplated by clause (v)
above.
(b) In the event that the Employee's employment is terminated
pursuant to clause (i), (ii), (iv) or (vi) of Section 7(a) above, the
Company shall pay to the Employee, as severance pay or liquidated damages
or both, during the twelve-month period immediately following such
termination, the amount of Salary that the Employee would have otherwise
been entitled to receive during such twelve-month period had the
Employee's employment not been so terminated; PROVIDED, HOWEVER, that no
such payment shall be due in
the event such termination occurs as a result of a notice of termination
given by the Company or by the Employee in connection with a failure to
renew this Agreement as provided in Section 2.
(c) Notwithstanding anything to the contrary expressed or
implied herein, except as required by applicable law and except as set
forth in Section 7(b) above, the Company (and its affiliates) shall not be
obligated to make any payments to the Employee or on his behalf of
whatever kind or nature by reason of the Employee's cessation of employ-
ment (including, without limitation, by reason of termination of the
Employee's employment by the Company for "cause"), other than (i) such
amounts, if any, of his Salary as shall have accrued and bonus as shall
have been determined to be due by the Board of Directors and, in each
case, remained unpaid as of the date of said cessation and (ii) such other
amounts, if any, which may be then otherwise payable to the Employee from
the Company's benefits plans or reimbursement policies. The termination
of this Agreement shall not relieve the Employee of any liability for any
willful breach hereof.
(d) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
(e) For purposes of this Agreement, the following definitions
shall apply:
(i) The term "good reason" shall mean only the following: (1)
material default by the Company in the performance of its obligations
hereunder, (2) material diminishment of the duties, position or
responsibilities of the Employee hereunder (provided that, in either
such case, the Employee shall have
provided the Board of Directors of the Company with written notice of
such default or other event and a reasonable opportunity to discuss
the matter with the Employee, followed by a notice that the Employee
adheres to his position and a reasonable opportunity to cure), or (3)
a "Change of Control" of the Company (as defined below);
(ii) The term "cause" shall mean only the following:
(1) conviction of the Employee of having committed a felony, (2) acts
of dishonesty or moral turpitude by the Employee that are materially
detrimental to the Company and/or its affiliates, (3) acts or
omissions by the Employee that the Employee knew were likely to
materially damage the business of the Company and/or any affiliate of
the Company whose business, operations, assets or properties are
material to the Company, (4) gross negligence by the Employee in the
performance of, or willful disregard by the Employee of, his
obligations hereunder, or willful and material breach by the Employee
of the terms hereof or (5) failure by the Employee to obey the
reasonable and lawful orders of the Board of Directors that are
consistent with the provisions of this Agreement (provided that, in
the event such failure shall not also constitute "cause" under any of
clauses (1) through (4) above, the Employee shall have received
written notice of such failure and a reasonable opportunity to
discuss the matter with the Board of Directors, followed by a notice
that the Board of Directors adheres to its position and a reasonable
opportunity to comply with such orders). It is understood and agreed
that the performance of the Company, whether financial, operational
or otherwise, shall not (in the absence of "cause" as provided in
clauses (1) through (5) above) constitute "cause."
(iii) "Change of Control" shall mean the acquisition of (a)
beneficial ownership of more than 50% of the voting equity securities
of the Company or any successor to the Company (by merger or
otherwise) or (b) all or substantially all the assets of the Company,
by any person or entity (including, without limitation, any group
within the meaning of Section 13(d)(3) of the Securities Exchange
Act, as amended) other than the "Investors," as such term is defined
in the Stock Purchase Agreement dated as of November 14, 1995, among
the Company and the Investors, or their respective affiliates.
8. Non-Assignability. (a) Neither this Agreement nor any
right
or interest hereunder shall be assignable by the Employee or his
beneficiaries or legal representatives without the Company's prior written
consent; PROVIDED, HOWEVER, that nothing in this Section 8(a) shall
preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon his death or incapacity.
(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary,
to effect any such action shall be null, void and of no effect.
9. Competition, etc. (a) During the Employment Term and
during
the two-year period following the end of the Employment Term for any
reason whatsoever, provided that payments, if any, required pursuant to
Section 7(b) hereof are made in full and in a timely fashion:
i) the Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be
connected with any business or organization which engages in
competition with the Company or any of its affiliates in any State
where any business shall be carried on (or formally contemplated to
be carried on) by the Company or any of its affiliates during the
Employment Term or as of the end of the Employment Term, as the case
may be, PROVIDED, HOWEVER, that the provisions of this
Section 9(a)(i) shall not be deemed to prohibit (A) the Employee's
ownership of not more than five percent (5%) of the total shares of
all classes of stock outstanding of any publicly held company, or
ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of any other business or (B)
non-profit public service activities, as contemplated by Section 3
hereof; and
ii) the Employee will not directly or indirectly induce or
attempt to induce any employee of the Company or any affiliate of the
Company to leave the employ of the Company or such affiliate, or in
any way interfere with the relationship between the Company or any
such affiliate and any employee thereof.
(b) For purposes of this Section 9, a person or entity
(including, without limitation, the Employee) shall be deemed to be a
competitor of the Company or any of its affiliates, or a person or entity
(including, without limitation, the Employee) shall be deemed to be
engaging in competition with the Company or any of its affiliates, if such
person or entity in any way conducts, operates, carries out or engages in
(i) the business of vehicle location and fleet management services or
related services and supplies, or (ii) such other business or businesses
as the Company may conduct in the future in such geographical area or
areas as such business or businesses are conducted.
(c) For purposes of this Section 9, no company or entity that
may be deemed to be an affiliate of the Company solely by reason of its
being controlled by, or under common control with, any of the Investors or
their
respective affiliates other than the Company, will be deemed to be an
affiliate of the Company.
(d) In connection with the foregoing provisions of this
Section 9, the Employee represents that his experience, capabilities and
circumstances are such that such provisions will not prevent him from
earning a livelihood. The Employee further agrees that the limitations
set forth in this Section 9 (including, without limitation, time and
territorial limitations) are reasonable and properly required for the
adequate protection of the businesses of the Company and its affiliates.
It is understood and agreed that the covenants made by the Employee in
this Section 9 (and in Section 6 hereof) shall survive the expiration or
termination of this Agreement, except as otherwise expressly provided
herein.
(e) The Employee acknowledges and agrees that a remedy at law
for any breach or threatened breach of the provisions of this Section 9
would be inadequate and, therefore, agrees that the Company and any of its
affiliates shall be entitled to injunctive relief in addition to any other
available rights and remedies in cases of any such breach or threatened
breach; PROVIDED, HOWEVER, that nothing contained herein shall be
construed as prohibiting the Company or any of its affiliates from
pursuing any other rights and remedies available for any such breach or
threatened breach.
10. Binding Effect. Without limiting or diminishing the effect
of
Section 8 hereof, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors,
legal representatives and assigns.
11. Notices. Any notice required or permitted to be given
under
this Agreement shall be sufficient if in writing and either delivered in
person or sent by first class certified or registered mail, postage
prepaid, if to the Company, at the Company's principal place of business,
and if to the Employee, at his home address most recently filed with the
Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
12. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
13. Severability. The Employee agrees that in the event that
any court of competent jurisdiction shall finally hold that any provision
of Section 6 or 9 hereof is void or constitutes an unreasonable
restriction against the Employee, the provisions of such Section 6 or 9
shall not be rendered void but shall apply with respect to such extent as
such court may judicially determine constitutes a reasonable restriction
under the circumstances. If any part of this Agreement other than Section
6 or 9 is held by a court of competent jurisdiction to be invalid,
illegible or incapable of being enforced in whole or in part by reason of
any rule of law or public policy, such part shall be deemed to be severed
from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and
provisions of this Agreement shall in every other respect continue in full
force and effect and no covenant or provision shall be deemed dependent
upon any other covenant or provision.
14. Waiver. Failure to insist upon strict compliance with any
of
the terms, covenants or conditions hereof shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment
of any right or power hereunder at any one or more times be deemed a
waiver or relinquishment of such right or power at any other time or
times.
15. Entire Agreement; Modifications. This Agreement
constitutes
the entire and final expression of the agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
oral and written, between the parties hereto with respect to the subject
matter hereof. This Agreement may be modified or amended only by an
instrument in writing signed by both parties hereto.
16. Counterparts. This Agreement may be executed in two or
more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly
executed and delivered this Agreement as of the day and year first above
written.
TELETRAC, INC.
By/s/Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: General Counsel and Secretary
/s/Xxxx X. Xxxx
__________________________________
Xxxx X. Xxxx
