Exhibit 10.1
EMPLOYMENT AGREEMENT
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This Agreement ("Agreement") is entered into as of September 10, 2004 by
and between X.X.X Transportation Services, INC. ("XXX") and XXXXXX XXXXXX
("EMPLOYEE"), and the parties therefore agree as follows:
Subject to the terms and conditions contained in this Agreement and during the
Term of this Agreement (as defined below), XXX hereby employs EMPLOYEE in the
position of "President and CEO," with such duties and responsibilities as are
commensurate with such office and may from time-to-time be assigned to EMPLOYEE
by PAM's Board of Directors.
EMPLOYEE hereby accepts such employment as a full time employee, and while
employed, shall devote his full business time, skills, energy and attention to
the business of XXX, shall perform his duties in a diligent, loyal, businesslike
and efficient manner, all for the sole purpose of enhancing the business of XXX,
and in a manner consistent with all XXX policies, resolutions and directives
from time to time stated or made by the Board of Directors. Moreover, EMPLOYEE
shall perform such services and duties as are consistent with EMPLOYEE's
position, are necessary or appropriate for the operation and management of XXX,
and as are normally expected of persons appointed to chief executive positions
in the business in which EMPLOYER is engaged.
1. Term of Agreement
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This Agreement shall commence on July 1, 2004 (the "Commencement Date")
and shall expire on June 30, 2006 (the "Term") for a Term of two years, unless
sooner terminated pursuant to the provisions of Section 10 or extended pursuant
to Section 3.
2. Compensation for Services
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XXX shall pay to EMPLOYEE compensation at the rate of $450,000 effective
July 1, 2004 and $450,000 effective July 1, 2005 per year as annual salary
("Base Salary") payable in equal installments pursuant to PAM's payroll system
in effect from time to time, less all applicable taxes required to be withheld
by XXX pursuant to federal, state or local law.
3. Option To Extend
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XXX shall have the option to extend this Agreement for two consecutive
years for an additional one (1) year at a time. The EMPLOYEE's annual salary for
the two one-year option periods shall be $500,000 payable in equal installments
pursuant to PAM's payroll system in effect from time to time, less all
applicable taxes required to be withheld by XXX pursuant to federal, state or
local law. XXX may elect to exercise this extension option any time prior to the
end of the contract years and/or the extended options years.
4. Benefits
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EMPLOYEE shall be entitled to fringe benefits provided by XXX for its
employees in the normal course of business. XXX agrees to compensate EMPLOYEE
for significant cost increases in benefit costs that are beyond the normal
annual cost that all employees experience.
XXX agrees to provide Directors and Officers insurance coverage except
under extraordinary market conditions such as those that resulted from the
events of 9/11/01 in which case coverage, if any, shall be as determined by the
Board of Directors.
5. Business Expenses
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XXX shall reimburse EMPLOYEE for all reasonable and necessary business
expenses incurred by him in the performance of his duties hereunder with respect
to travel, entertainment and other business expenses, subject to PAM's business
expense policies in effect from time to time, including its procedures with
respect to the manner of incurring, reporting and documenting such expenses.
6. Proprietary Information
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a. EMPLOYEE shall forever hold in the strictest confidence and not
disclose to any person, firm, corporation or other entity any of PAM's
Proprietary Information (as defined below) or any of PAM's Records (as defined
below) except as such disclosure may be required in connection with EMPLOYEE's
work for XXX and as expressly authorized by PAM's Board of Directors in writing.
b. For the purposes of this Agreement, the term "Proprietary
Information" shall mean inter company publications, unpublished works, plans,
policies, computer and information systems, software and other information and
knowledge relating or pertaining to the products, services, sales or other
business of XXX or its successor, affiliates and customers in any way which is
of a confidential or proprietary nature, the prices it obtains or has obtained
from the sale of its services, its manner of operation, its plans, processes or
other data, contracts, information about contracts, contract forms, business
applications, costs, profits, tax information, marketing information,
advertising methods, customers, potential customers, brokers, potential brokers,
employees, matters of a technical nature (including inventions, computer
programs, concepts, developments, contributions, devices, discoveries, software
and documentations, secret processes or machines, including any improvements
thereto and know-how related thereto, and research projects, etc.), and other
information not generally available to the public, without regard to whether
all of the foregoing matters will be deemed confidential, material or important.
Anything to the contrary notwithstanding, the parties hereto stipulate that any
and all knowledge, data and information gathered by the EMPLOYEE through this
Agreement, his employment with XXX and the operation of the business of XXX is
deemed important, material or confidential, and gravely affects the effective
and successful conduct of the business of XXX and XXX 's good will; could not
without great expense and difficulty be obtained or duplicated by others who
have not been able to acquire such information by virtue of employment with XXX;
and that any breach of the terms of this Paragraph 6 shall be deemed a material
breach of this Agreement.
c. EMPLOYEE agrees that all creative work, including without limitation,
designs, drawings, specifications, techniques, models, processes and software
prepared or originated by EMPLOYEE during or within the scope of employment
whether or not subject to protection under the federal copyright or other law
constitutes work made for hire all rights to which are owned by XXX. Moreover,
EMPLOYEE hereby assigns to XXX all right, title and interest whether by way of
copyright, trade secret, patent or otherwise, and all such work whether or not
subject to protection by copyright or other law.
d. Upon termination of employment with XXX or at any other time
requested by XXX, EMPLOYEE shall immediately return to XXX and not retain any
copies of, any records, data, lists, plans, policies, publications, computer and
information systems, files, diagrams and documentation, data, papers, drawings,
memos, customer records, reports, correspondence, note books, service listing
and any-other business record of any kind or nature (including without
limitation records in machine-readable or computer-readable forms) relating to
Proprietary Information ("Records").
7. Covenant Not To Compete
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a. As a material part of the consideration for this Agreement, EMPLOYEE
agrees to the following covenants not to compete with XXX, and with all of its
affiliated companies listed in Exhibit A to this Agreement ("Affiliated
Companies") during his employment and for a one (1) year period following the
termination of EMPLOYEE's employment with XXX for any reason. EMPLOYEE agrees
not to interfere with customer contracts for a period of one year. This
restriction shall apply to all XXX Customers and Customers of Affiliated
Companies. EMPLOYEE further agrees not to solicit, retain, employ or accept
business that is competitive from any XXX employees, agents or owner operators,
or the employees, agents or owner operators of any Affiliated Companies.
Anything contrary notwithstanding, this Paragraph 7 shall survive after the
termination or the earlier cancellation of this Agreement.
b. Both parties agree that the restrictions in this section are fair and
reasonable in all respects including the length of time that they shall remain
in effect and that PAM's employment of EMPLOYEE upon the terms and conditions of
this Agreement is fully sufficient consideration for EMPLOYEE's obligations
under this section.
c. If any provisions of this section are ever held by a Court to be
unreasonable, the parties agree that this section shall be enforced to the
extent it is deemed to be reasonable.
8. No Interference With Employment Relationships
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EMPLOYEE agrees that he will not either before or after termination of
his employment with XXX encourage, solicit or otherwise attempt to persuade any
other employee of XXX to leave the employment of XXX. In the event EMPLOYEE
hires an employee of XXX, XXX shall be compensated at a fee equal to 30% of the
employee's first year's gross compensation. This paragraph 8 also applies to
employees of companies on Exhibit A.
9. Equitable Relief And Remedies At Law
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EMPLOYEE acknowledges that XXX would suffer unique and irreparable
injury in the event of a breach of the covenants contained in Sections 6, 7 and
8 of this Agreement, which breach could not be adequately compensated by the
payment of damages alone. Accordingly in the event of any such breach by
EMPLOYEE, EMPLOYEE agrees that this Agreement may be enforced by a decree of
specific performance or an injunction without the necessity of posting a bond in
addition to any remedies available at law, including damages arising out of or
relating to a breach of those covenants, and that any remedy which XXX might
have at law would be inadequate by itself.
10. Termination of Agreement
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a. Without limitation of any other remedy available to XXX, whether in
law or in equity, EMPLOYEE's employment relationship shall terminate immediately
without any further liability of XXX to EMPLOYEE, upon written notice from XXX
to EMPLOYEE, for just cause: conviction of a crime, moral turpitude, gross
negligence in the performance of duties, intentional failure to perform duties,
insubordination or dishonesty. In the event of EMPLOYEE's termination pursuant
to this Section 10(a), XXX shall have no obligation to pay Base Salary and
benefits effective as of the 30th day after the employment relationship is
terminated.
b. EMPLOYEE's employment relationship shall terminate immediately upon
death of EMPLOYEE.
c. EMPLOYEE agrees to submit to a medical examination at any time at
PAM's request and expense. The medical examination will be related to EMPLOYEE's
job and consistent with a business necessity of XXX. This Agreement may be
terminated by XXX immediately upon written notice to EMPLOYEE if the examination
reveals that EMPLOYEE is unable to perform the essential functions of this
Agreement even with a reasonable accommodation. The Agreement may also be
terminated if, for a period of three (3) consecutive months, EMPLOYEE is unable
to perform the essential functions of the Agreement even with a reasonable
accommodation. Upon such termination due to 'Medical disability, EMPLOYEE's
compensation shall be continued for twelve (12) months from the date of
disability.
d. Upon the determination by PAM's Board of Directors that the best
interests of XXX would be served, XXX shall have the further right to terminate
EMPLOYEE's employment relationship immediately or at any time, at its option
upon written notice to EMPLOYEE, without just cause. If EMPLOYEE is terminated
pursuant to this Section 10(d), EMPLOYEE shall be entitled to receive only Base
Salary and benefits and any earned but unpaid bonus for a period of twelve (12)
months following such termination. These payments shall not constitute
employment for purpose of Section 7.
e. Any compensation payable to EMPLOYEE pursuant to this Section 10
following termination pursuant to subsection (d) of this Section 10 shall be
reduced by the amount of any compensation earned by EMPLOYEE in any employment
or consulting he may undertake during said period that constitutes a violation
of Section 7 respecting non-competition.
f. Upon three months' prior written notice to XXX at any time, EMPLOYEE
shall have the right to terminate his employment relationship with XXX at his
option. Upon receipt of such notice XXX shall have the option to terminate
EMPLOYEE's employment relationship immediately upon written notice to EMPLOYEE.
In the event of termination pursuant to this Section 10(f), EMPLOYEE shall be
entitled to receive Base Salary and benefits only through the three month period
following EMPLOYEE's notice of termination. The time period on the covenant not
to compete shall commence at the end of the three (3) month period, and EMPLOYEE
shall also be bound by the covenant not to compete during the three (3) month
period he is receiving Base Salary and benefits. EMPLOYEE shall be liable for
all costs and expenses incurred by XXX for the failure to give three (3) months'
notice.
g. Upon termination of this Agreement by XXX EMPLOYEE shall, without a
claim for compensation, provide XXX with written resignations from any and all
offices held by him in or at the request of XXX, and in the event of his failure
to do so, XXX is hereby irrevocably authorized to be, or designated as
EMPLOYEE's attorney in fact, to act in his name and in his behalf to execute
such resignations.
h. This Agreement shall terminate upon expiration of the Term unless
otherwise agreed to by the parties in writing prior thereto.
11. Exclusive Consulting Contract
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Upon termination of EMPLOYEE's employment with XXX for any reason
whatsoever, XXX shall have the right at its option, to retain EMPLOYEE as an
independent consultant under an exclusive consulting contract, for the
performance by EMPLOYEE of such duties as may be reasonably assigned by XXX
consistent with the position of an independent consultant. The specific terms
regarding the actual services to be performed, length of service, restrictions
on competition and other contractual terms not set forth in this paragraph,
shall be mutually agreeable to EMPLOYEE and XXX. Services as an independent
contractor shall not constitute employment for purposes of Section 7.
12. No Restriction on Performance of Services Contemplated by Agreement
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EMPLOYEE represents and warrants to XXX that: (i) he is under no
contractual or other restriction which would give a third party a legal right to
assert that he would not be legally permitted to perform, the services
contemplated by this Agreement; and (ii) by entering into this Agreement he has
not breached, and by performing the services contemplated by this Agreement, he
would not breach, any Agreement or duty relating to proprietary information of
another person or entity.
13. Confidentiality of Agreement
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EMPLOYEE shall not disclose any of the terms of this Agreement to any
person with the exception of his spouse or attorneys or as required by law,
provided the spouse or attorneys agree to be bound by this Section.
14. Severability
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In case any one or more of the provisions hereof shall be held to be
invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but,
this Agreement shall be construed as, if such invalid, illegal or unenforceable
provision had never been contained herein. To the extent possible, there shall
be deemed substituted such other provision as will most nearly accomplish the
intent of the parties, to the extent permitted by applicable law.
15. Entire Agreement
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This Agreement embodies all the representations, warranties, covenants
and agreements of the parties in relation to the subject matter hereof, and no
representations, warranties, covenants, understandings, or agreements, unless
expressly set forth herein or in an instrument in writing signed by the party to
be bound thereby which makes reference to this Agreement, shall be considered
effective.
16. No Rights in Third Parties
--------------------------
Nothing herein expressed or implied is intended to, or shall be
construed to confer upon, or give to any person, firm or other entity other than
the parties hereto any rights or remedies under this Agreement, except as
provided in Section 17.
17. Assignment
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XXX may assign its rights and delegate its responsibilities under this
Agreement to any affiliated company or to any corporation which acquires all or
substantially all of the operating assets of XXX by merger, consolidation,
dissolution, liquidation, combination, sale or transfer of assets or stock or
otherwise. EMPLOYEE shall not be entitled to assign his rights or delegate his
responsibilities under this Agreement to any person.
18. Payment to Estate
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No person, firm or entity shall have any right to receive any payments
owing to EMPLOYEE hereunder, except that EMPLOYEE's estate shall be entitled to
receive a final payment of installment of Base Salary for services rendered to
XXX through date of death and reimbursement for any business expenses previously
incurred by EMPLOYEE for which he would have been entitled to reimbursement
hereunder.
19. Amendment
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No modification or amendment of this Agreement shall be binding unless
executed in writing by each of the parties hereto.
20. Survival of Covenants
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Without limitation of any other provisions of this Agreement, all
representations and warranties set forth in this Agreement and the covenants set
forth in Sections 6, 7, 8 and 13 shall survive the termination of this Agreement
for any reason for the maximum period permitted by law.
21. Governing Law
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This Agreement shall be governed by and construed in accordance with
the internal laws (and not the law of conflicts) of the State of Arkansas. The
parties agree that should any litigation arise out of, in connection with, or
relating to this Agreement, such litigation will be commenced in a court of
Arkansas jurisdiction.
22. Notices
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Service of all notices under this Agreement must be given personally to
the party involved at the address set forth below or at such other address as
such party shall provide in writing from time to time.
COMPANY: Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
EMPLOYEE: Xxxxxx Xxxxxx
000 Xxxx Xxxxx Xx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
23. Paragraph Headings
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The titles to the paragraphs of this Agreement are for convenience of
the parties only and shall not affect in any way the meaning or construction
of any Paragraph of this Agreement.
24. Non-Waiver
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No covenant or condition of this Agreement may be waived except by the
written consent of XXX Board of Directors. Forbearance or indulgence by XXX in
any regard whatsoever shall not constitute a waiver of the covenants or
conditions to be performed by EMPLOYEE to which the same may apply, and, until
complete performance by EMPLOYEE of said covenant or condition, XXX shall be
entitled to invoke any remedy available to XXX under this Agreement or by law or
in equity, despite said forbearance or indulgence.
25. Construction
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Although this Agreement was drafted by XXX the parties agree that it
accurately reflects the intent and understanding of each party and should not be
construed against XXX if there is any dispute over the meaning or intent of any
provisions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXX TRANSPORTATION SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Its: Director - Compensation Committee
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Witness: /s/ Xxxx Xxxxxx
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/s/ Xxxxxx X. Xxxxxx
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EMPLOYEE
EXHIBIT A
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XXX Transportation Services, Inc.
Choctaw
XXX Dedicated
Xxxxx Freight Services
Xxxxxx Transport
XXX Transport
East Coast Transportation
XxXxxxx Transport
Central Transport, Inc.
L.I.N.C.
Logistic Services Inc.
CTX Of Michigan LLC
Pro Logistics Inc.
Central Global Express Of MI LLC
Flint Special Services, Inc.
Custom SVCS, Int'l
Mohawk Service Corp.
Central Transport Intl. Inc.
M.C.S.I.
M.C.S.I. Titan
Central-XxXxxxxx International Ltd
C C Canada, Ltd.
Line Ontario, Ltd
