EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(the
"Agreement")
dated
this ____ day of September, 2008 is between Adcom Express, Inc., a Minnesota
corporation with a place of business at 0000 Xxxx 00xx
Xxxxxx,
Xxxxxxxxxxx, XX (the "Company"),
and
Xxxxxx X. Xxxxxxxx, an individual residing at 000 Xxxxx Xxxxx Xxxxxx, Xxxx
0000,
Xxxxxxxxxxx, XX 00000 (the "Executive").
RECITALS
WHEREAS,
the
Company desires to employ Executive, and Executive desires to be employed by
the
Company, upon the terms and conditions set forth in this Agreement;
and
WHEREAS,
the
Company and Executive have agreed to enter into this Agreement in consideration
for, and in connection with, that certain Stock Purchase Agreement (the “Stock
Purchase Agreement”) dated the date hereof by and between the Executive and
Radiant Logistics, Inc. (the “Parent”).
NOW,
THEREFORE,
in
consideration of the foregoing, the mutual and dependent promises hereinafter
set forth, and other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged the parties, intending to be legally bound,
do
hereby agree as follows:
EMPLOYMENT
AND TERM
1.1 Employment/Title.
The
Company hereby agrees to employ in the Minneapolis, Minnesota metropolitan
area
the Executive and the Executive hereby accepts employment as President of the
Company under the terms and conditions set forth in this Agreement. The
Executive shall report to the Board of Directors of the Company or such other
person as the Board of Directors shall designate, for the performance of his
duties, and shall have responsibility for such duties as are customarily
associated with his position and such other executive level duties and
responsibilities, consistent therewith and with the status of a senior level
executive of the Company, or as may be assigned to the Executive by the Chief
Executive Officer of the Company or the Board of Directors of the Company or
such other person as the Board of Directors shall designate.
1.2 Employment/Duties.
During
the Term (as defined in Section 1.3 hereof), Executive shall devote
substantially all of his working time, attention and skill to the business
affairs of the Company. Executive shall diligently and faithfully devote his
entire time, energy, skill, and best efforts to the performance of his duties
under this Agreement. Executive shall conduct himself at all times so as to
advance the best interests of the Company, and shall not undertake or engage
in
any other business activity or continue or assume any other business
affiliations which conflict or interfere with the performance of his services
hereunder without the prior written consent of the Board of Directors of the
Company. Executive also agrees that he
shall
not
usurp or misappropriate, either to himself, or to any other person or entity,
any corporate or other opportunities that would otherwise be available to the
Company.
1.3 Effective
Date.
Executive will commence work immediately on the date hereof (the "Effective
Date").
1.4 Term.
This
Agreement shall remain in force and effect for a term commencing on the
Effective Date hereof and expiring on June 30, 2011 (the "Initial Term"), or
until the employment relationship is terminated pursuant to Section 5 hereof.
This Agreement may be extended at the election and agreement of the Company
and
Executive (a "Renewal Term"). The Initial Term and any Renewal Term are
collectively referred to as the "Term."
ARTICLE
2
COMPENSATION
2.1 Base
Salary.
For
each twelve (12) month period during the Term of this Agreement, the Executive
shall be paid an annual base salary of One Hundred Twenty-five Thousand Dollars
($125,000) (the “Base Salary”). The Executive's annual Base Salary shall be
payable in equal installments in accordance with the Company's general salary
payment policies but no less frequently than monthly.
2.2 Benefits.
The
Executive will, during the Term, be permitted to participate in such pension,
profit sharing, bonus, life insurance, hospitalization, major medical, and
other
employee benefit plans of the Company that may be in effect from time to time,
to the extent Executive is eligible under the terms of those plans. The Company
may alter, modify, add to or delete its executive benefit plans as they apply
to
the Company's senior executive officers at such times and in such manner as
the
Company determines appropriate, without recourse by Executive so long as such
changes are applied in a substantially uniform manner to the Company's executive
officers.
2.3 Vacation.
Executive shall be entitled to receive annual vacation in accordance with the
Company's policies applicable to its senior executive officers, which in any
event shall not be less than four (4) weeks
or
such greater number of weeks as may be provided to the Company's senior
executives with comparable length of service. The Executive shall also be
entitled to the paid holidays and other paid leave set forth in the Company's
policies. Vacation days during any calendar year that are not used by the
Executive during such calendar year may, at the election of the Company’s Board
of Directors, either be carried over and used in the subsequent calendar year
(however, not to exceed two (2) weeks), or may be
paid
to Executive in cash at the end of the calendar year.
2.4 Business
Expenses. Subject
to and in accordance with the Company's policies and procedures, and, upon
presentation of itemized accounts, the Executive shall be reimbursed by the
Company for reasonable and necessary business-related expenses, which expenses
are incurred by the Executive on behalf of the Company.
ARTICLE
3
PROPRIETARY
INFORMATION
3.1 Confidential
and Proprietary Information.
Executive acknowledges that he is in a relationship of confidence and trust
with
the Company and will come into possession of Confidential Information (as
defined in the Stock Purchase Agreement), which could constitute a major asset
of the Company, Parent or their respective affiliates and be of significant
commercial value, the use, misappropriation or disclosure of such would cause
a
breach of trust and could cause irreparable injury to the Company, Parent or
their respective affiliates (all of the aforementioned information is
hereinafter collectively referred to as "Proprietary Information").
3.2 Non-Disclosure.
Executive acknowledges that all Proprietary Information shall be the sole
property of the Company, Parent, their respective affiliates and their
successors and assigns. Executive further acknowledges that it is essential
for
the proper protection of the business of the Company and Parent that such
Proprietary Information be kept confidential and not disclosed to third parties
or used for the benefit of Executive. Accordingly, Executive agrees that during
the Term and for so long as the information remains Proprietary Information,
to
keep in confidence and trust all Proprietary Information, and not to use,
disclose, disseminate, publish, copy, or otherwise make available, directly
or
indirectly, except in the ordinary course of the performance of Executive's
duties under this Agreement or the Stock Purchase Agreement, any Proprietary
Information except as expressly authorized in writing by the Company or Parent;
provided,
however,
that
Executive shall be relieved of his obligation of nondisclosure hereunder if
Proprietary Information is required to be disclosed by any applicable judgment,
order or decree of any court or governmental body or agency having jurisdiction
or by any law, rule or regulation, provided that in connection with any such
disclosure, Executive shall give the Company and Parent reasonable prior written
notice of the disclosure of such information pursuant to this exception and
shall cooperate with the Company and Parent to permit the Company or Parent
to
seek confidential treatment for such information from any authority requiring
delivery of such information; provided further,
however,
that if
Company or Parent has not obtained such confidential treatment by the date
Executive is required by such authority to disclose the Proprietary Information,
Executive shall be free to provide such disclosure and there shall be no
violation of or damages determined under this Agreement or otherwise for
Executive’s disclosure action and compliance with or pursuant to such
authority.
3.3 Return
of Proprietary Information.
Executive agrees that when he ceases to be employed by the Company, whether
such
cessation of employment shall be for any reason or for no reason, with or
without cause, voluntary or involuntary, or by termination, resignation,
disability, retirement or otherwise, Executive shall deliver to the Company
all
documents and data of any nature owned by the Company pertaining to the
Proprietary Information.
3.4 Works
made for Hire.
Executive further recognizes and understands that Executive's duties at the
Company may include the preparation of materials, including without limitation
written or graphic materials, and that any such materials conceived or written
by Executive shall be done as "work made for hire" as defined and used in the
Copyright Act of 1976, 17 U.S.C. §§ 1 et seq.
In the
event of publication of such materials, Executive understands that since the
work is a "work made for hire", the Company will solely retain and own all
rights in said materials, including right of copyright.
3.5 Disclosure
of Works and Inventions.
In
consideration of the promises set forth herein, Executive agrees to disclose
promptly to the Company’s Board of Directors, any and all works, inventions,
discoveries and improvements authored, conceived or made by Executive during
the
period of employment and related to the business or activities of the Company,
and Executive hereby assigns and agrees to assign all of Executive's interest
in
the foregoing to the Company or to its Board of Directors. Executive agrees
that, whenever he is requested to do so by the Company, Executive shall execute
any and all applications, assignments or other instruments which the Company
shall deem necessary to apply for and obtain Letters Patent or Copyrights of
the
United States or any foreign country or to otherwise protect the Company's
interest therein. Executive hereby appoints an authorized officer of the Company
as Executive's attorney in fact to execute documents on his behalf for this
purpose. Such obligations shall continue beyond the termination or nonrenewal
of
Executive's employment with respect to any works, inventions, discoveries and/or
improvements that are authored, conceived of, or made by Executive during the
period of Executive's employment, and shall be binding upon Executive's
successors, assigns, executors, heirs, administrators or other legal
representatives. Executive has attached hereto as Exhibit A a list of
Innovations as of the date hereof which belong to Executive and which are not
assigned to the Company hereunder (the "Prior Innovations"), or, if no such
list
is attached, Executive represents that there are no Prior
Innovations.
ARTICLE
4
COMPETITION
4.1 Noncompetition
and Nonsolicitation Covenants.
(a) Executive
covenants and agrees with the Company that during the Noncompete Term (as
defined below) he will not, without the prior written consent of the
Company,
which
may be withheld or given in its sole discretion, directly or indirectly, or
individually or collectively within the United States of America, engage in
any
activity or act in any manner, including but not limited to, as an individual,
owner, sole proprietor, founder, associate, promoter, partner, joint venturer,
shareholder (other than as the record or beneficial owner of less than five
percent (5%) of the outstanding shares of a publicly traded corporation),
officer, director, trustee, manager, employer, employee, licensor, licensee,
principal, agent, salesman, broker, representative, consultant, advisor,
investor or otherwise for the purpose of establishing, operating, assisting
or
managing any business or entity that is engaged in activities competitive with
the business of the Company.
(b) Executive
covenants and agrees with the Company that during the Noncompete
Term
(as
defined below), he will not, without the prior
written consent
of
the
Company which may be withheld or given in its sole discretion, act in any
manner, including but not limited to, as an individual, owner, sole proprietor,
founder, associate, promoter, partner, joint venturer, shareholder (other than
as the record or beneficial owner of less than five percent (5%) of the
outstanding shares of a publicly traded corporation), officer, director,
trustee, manager, employer, employee, licensor, licensee, principal, agent,
salesman, broker, representative, consultant, advisor, investor or otherwise,
directly or indirectly, to: (i) solicit, counsel or attempt to induce any person
who is then in the employ of the Company, or who is then providing
services
as a consultant or agent of the Company, to leave the employ of or cease
providing services, as applicable, to the Company, or employ or attempt to
employ any such person or persons who at any time during the preceding one
(1)
year was in the employ of, or provided services to, the Company; or (ii)
solicit, bid for or perform for any of the then current customers of the Company
(defined as a customer who has done business with the Company within a year)
any
services of the type the Company performed for such customer at any time during
the preceding one (1) year period.
4.2 Noncompete
Term.
The
"Noncompete Term" shall mean the period commencing on the Effective Date and
ending on the later of: (i) October 1, 2012; (ii) the end of such period that
Executive remains employed by the Company; or (iii) the end of any period during
which Executive receives severance or salary continuation from the Company
following employment.
4.3 Blue
Pencil Rule.
The
Executive and the Company desire that the provisions of this Article 4 be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. The parties agree
that Executive is a key executive of the Company. If a court of competent
jurisdiction, however, determines that any restrictions imposed on the Executive
in this Article 4 are unreasonable or unenforceable because of duration,
geographic area or otherwise, the Executive and Company agree and intend that
the court shall enforce this Article 4 to the maximum extent the court deems
reasonable and that the court shall have the right to strike or change any
provisions of this Article 4 and substitute therefore different provisions
to
effect the intent of this Article 4 to the maximum extent possible.
ARTICLE
5
TERMINATION
OF EMPLOYMENT AND SEVERANCE BENEFITS
5.1 Events
of Termination by the Company.
(a) Death
or Disability.
In the
event Executive dies or becomes permanently disabled during the term of this
Agreement, his employment hereunder shall automatically terminate. In such
case,
the Company shall pay to Executive or his estate, personal representative or
beneficiary, as the case may be: (i) any Base Salary earned but unpaid at the
date of termination; (ii) any unpaid accrued benefits of the Executive through
the date of termination; (iii) any unreimbursed expenses for which Executive
shall not have been reimbursed as provided in Article 2; and (iv) any accrued
but unpaid bonus through the date of termination. For the purpose of this
Agreement, "permanent disability" or "permanently disabled" shall mean the
inability of the Executive, due to physical or mental illness or disease, to
perform the functions then performed by such Executive for one hundred eighty
(180) substantially consecutive days, accompanied by the likelihood, in the
opinion of a physician chosen by the Company and reasonably acceptable to the
Executive, that the disabled Executive will be unable to perform such functions
within the reasonably foreseeable future; provided,
however,
that
the foregoing definition shall not include a disability for which the Company
is
required to provide reasonable accommodation pursuant to the Americans with
Disabilities Act or other similar statute or regulation.
(b) By
the
Company for Cause.
This
Agreement may be terminated by the Company for "Cause" at any time. "Cause"
for termination shall mean the following conduct:
(i) Executive's
falsification of the books and records of the Company, misappropriation or
embezzlement of funds or property of the Company, any attempt to obtain any
personal profit from any transaction in which the Executive has an interest
that
is adverse to the Company, any breach of the duty of loyalty and fidelity to
the
Company, or any other similar material dishonesty with respect to the Company;
(ii) Any
act
or omission which subjects the Company or any of its affiliates to public
disrespect, scandal, or ridicule, or that causes the Company to be in violation
of governmental regulations that subjects the Company either to sanctions by
governmental authority or to civil liability to its employees or third
parties;
(iii) Breach
of
any material provision of this Agreement by the Executive if not cured within
fifteen (15) days after receiving written notice thereof;
(iv) Material
neglect or refusal to perform the duties assigned to the Executive pursuant
to
this Agreement if not cured within fifteen (15) days after receiving written
notice thereof;
(v) Conviction
of, or plea of nolo contendere to, a felony; or
(vi) Gross
or
willful misconduct of Executive with respect to the Company if not cured within
fifteen (15) days after receiving written notice thereof.
Upon
termination of Executive's employment hereunder for Cause, the Company shall
have no further obligation or liability to Executive other than the payment
of
(i) Base Salary earned but unpaid at the date of termination,
(ii) any
unpaid accrued benefits of the Executive, and (iii) reimbursement for any
expenses for which the Executive shall not have been reimbursed as provided
in
Article 2.
(c) By
Executive For Good Reason.
(i) Executive
may terminate his employment by the Company for "Good Reason" at any time upon
at least thirty (30) days’ written notice to the Company and a right to cure,
setting forth in reasonable detail the nature of such good reason. "Good Reason"
for Executive to terminate his employment shall mean, the occurrence of a
Corporate Transaction (as defined in the Stock Purchase Agreement), a
requirement that the Executive relocate outside of the Minneapolis metropolitan
area, or in the absence of a for Cause event initiated first by the Company,
any
material act or omission by the Company that is not consented to by the
Executive in a writing signed by Executive which constitutes a material breach
of any term or provision of this Agreement or which results in the assignment
to
Executive of any duties materially inconsistent with, or in any material
diminution of, the positions,
duties,
responsibilities and status of Executive hereunder or any change in Executive's
title or duties with the same intent or effect which breach continues for more
than fifteen (15) days after written notice of such breach to
Company.
(ii) In
the
event of the termination of the Executive’s employment with the Company by
Executive for “Good Reason” as defined above, Executive shall be entitled to
receive from the Company continuation of payment of all Base Salary and bonus
and continuation of all benefits which Executive would have been entitled to
receive had his employment not terminated, at the same times as such payments
would otherwise have been made pursuant to Article 2 hereof for a period of
one
(1) year after such termination of employment if, and only if, the Executive
signs a valid general release of all claims against the Company, its affiliates,
subsidiaries, officers, directors, and agents, in a form provided by the
Company.
(d) Termination
other than for Cause.
Executive’s
employment may not be terminated by the Company hereunder except for Cause,
or
as a result of his Death or Disability, or following his voluntary
resignation.
5.2 Voluntary
Termination by Executive.
If
Executive voluntarily resigns or terminates his employment for other than Good
Reason, the Company shall have no further obligation or liability to Executive
other than the payment of: (i) Base Salary earned but unpaid at the date of
termination; (ii) any unpaid accrued benefits of the Executive;
(iii)
reimbursement for any expenses for which the Executive shall not have been
reimbursed as provided in Article 2; and (iv) any unpaid bonus that has been
earned by the Executive and accrued by the Company prior to the date of such
termination.
5.3 Survival.
Notwithstanding termination of this Agreement as provided in this
Article 5, the rights and obligations of Executive and the Company under
Article 3 through Article 5 and Sections 6.5, 6.9 and 6.10 shall survive
termination.
ARTICLE
6
GENERAL
PROVISIONS
6.1 Entire
Agreement.
This
Agreement, including any Exhibits to this Agreement and any definitions
incorporated herein, contains the entire understanding of the parties with
respect to the matters contained herein and supersedes all prior and
contemporaneously made written or oral agreements between the parties relating
to the subject matter hereof. There are no oral understandings, terms, or
conditions, and no party has relied upon any representation, express or implied,
not contained in this Agreement.
6.2 Amendments.
This
Agreement may not be amended in any respect whatsoever, nor may any provision
hereof be waived by any party, except by a further agreement, in writing, fully
executed by each of the parties.
6.3 Successors.
This
Agreement shall be binding upon and inure to the benefit of the parties and
to
their respective heirs, personal representatives, successors and assigns,
executors and/or administrators, provided that (a) Executive may not assign
his
rights hereunder (except by will or the laws of descent) without the prior
written consent of the Company and (b) Company may not assign its rights
hereunder without the prior written consent of Executive which will not be
unreasonably withheld.
6.4 Captions.
The
captions of this Agreement are for convenience and reference only and in no
way
define, describe, extend or limit the scope or intent of this Agreement or
the
intent of any provision contained in this Agreement.
6.5 Notice.
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered
by
hand, (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c)
when
received by the addressee, if sent by a nationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If
to the
Company:
c/x
Xxxx
X. Xxxxx
0000
000xx
Xxxxxx
XX
Xxxxxxxx,
XX 00000
With
a
copy to:
Xxxxxxx
X. Xxxxx, Esq.
c/o
Fox
Rothschild LLP
0000
Xxxxxx Xxxxxx; 00xx
xxxxx
Xxxxxxxxxxxx,
XX 00000
If
to the
Shareholder:
Xxxxxx
X.
Xxxxxxxx
000
X.
0xx
Xxxxxx
Xxxx
0000
Xxxxxxxxxxx,
XX 00000
With
a
copy to:
Xxxxx
Xxxxxx, P.A.
c/o
Xxxx
X. Xxxx, Esq.
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
6.6 Counterparts.
This
Agreement may be executed in one or more copies, each of which shall be deemed
an original. This Agreement may be executed by facsimile signature and each
party may fully rely upon facsimile execution; this agreement shall be fully
enforceable against a party which has executed the agreement by
facsimile.
6.7 Partial
Invalidity.
The
invalidity of one or more of the phrases, sentences, clauses, sections or
Articles contained in this Agreement shall not affect the validity of
the
remaining
portions so long as the material purposes of this Agreement can be determined
and effectuated.
6.8 Applicable
Law.
This
Agreement shall be governed by, construed and enforced in accordance with the
laws of the State of Minnesota without regard to principles of comity or
conflicts of laws provisions of any jurisdiction.
6.9 Resolution
of Disputes.
(a) Subject
to the provisions of Section 7.9(b), any dispute, difference or controversy
arising under this Agreement regarding the payment of money shall be settled
by
arbitration. Any arbitration pursuant to this Section 7.9 shall be held
before a single arbitrator. Except as otherwise set forth herein, each party
shall bear its own expenses for counsel and other out-of-pocket costs in
connection with any resolution of a dispute, difference or controversy. Any
arbitration shall take place in Minneapolis, Minnesota or at such other location
as the parties may agree upon, according to the American Arbitration
Association's Employment
Arbitration Rules now in force and hereafter adopted or by the parties' further
agreement or as set forth herein. The parties agree that, in any arbitration
the
parties shall, to the maximum extent possible, have such rights as to the scope
and manner of discovery as are permitted in the Federal Rules of Civil Procedure
and consent to the entry of any order of any court of competent jurisdiction
necessary to enforce such discovery. In submitting the dispute to the
arbitrators, each of the parties shall concurrently furnish, at its own expense,
to the arbitrator and the other parties such documents and information as the
arbitrator may request. Each party may also furnish to the arbitrator such
other
information and documents as it deems relevant, with the appropriate copies
and
notification being concurrently given to the other party. Neither party shall
have or conduct any communication, either written or oral, with the arbitrator
without the other party either being present or receiving a concurrent copy
of
such written communication. The arbitrator may conduct a conference concerning
the objections and disagreements between the parties, at which conference each
party shall have the right to (i) present its documents, materials and
other evidence (as previously provided to the arbitrator and the other parties),
and (ii) to have present its or their advisors, accountants and/or counsel.
The arbitrator shall make his award in accordance with and based upon all the
provisions of this Agreement,
and
judgment upon any award rendered by the arbitrator shall be entered in any
court
having jurisdiction thereof. The fees and disbursements of the arbitrator shall
be borne equally by the parties, with each party bearing its own expenses for
counsel and other out-of-pocket costs. The arbitrator is specifically authorized
to award costs and attorney's fees to the party substantially prevailing in
the
arbitration and shall do so in any case in which he believes the arbitration
was
not commenced in good faith.
(b) The
parties acknowledge that in the case of disputes regarding matters other than
the payment of money, damages may be insufficient to remedy a breach of this
Agreement and that irreparable harm may result from a breach of this Agreement.
Accordingly, the parties consent to the award of preliminary and permanent
injunctive relief and specific performance to remedy any material breach of
this
Agreement, regarding disputes other than the payment of money, without limiting
any other rights or remedies to which the parties may be entitled under law
or
equity. Either party may pursue injunctive relief or specific performance in
any
court of competent jurisdiction.
6.10 No
Waiver. No
failure on the part of any Party to exercise, and no delay by any Party in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by any Party of any right,
power or remedy hereunder, preclude any other or further exercise thereof,
or
the exercise of any other right, power or remedy by such Party.
6.11 Genders.
Any
reference to the masculine gender shall be deemed to include feminine and neuter
genders, and vice versa, and any reference to the singular shall include the
plural, and vice versa, unless the context otherwise requires.
6.12 No
Conflicts.
The
parties represent and warrant that the terms of this Agreement do not violate
any existing agreements with other parties.
6.13 Deductions
from Salary and Benefits.
The
Company will withhold from any salary or benefits payable to the Executive
all
federal, state, local, and other taxes and other amounts as required by law,
rule or regulation.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first set forth above.
IMPORTANT
NOTICE:
THIS AGREEMENT RESTRICTS EXECUTIVE’S RIGHTS TO OBTAIN OTHER EMPLOYMENT FOLLOWING
HIS EMPLOYMENT WITH THE COMPANY. BY SIGNING IT, EXECUTIVE ACKNOWLEDGES THIS
FACT, AND FURTHER ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY THE COMPANY TO READ
THE AGREEMENT CAREFULLY, AND/OR TO CONSULT WITH COUNSEL OF HIS CHOICE CONCERNING
THE LEGAL EFFECTS OF SIGNING THE AGREEMENT, PRIOR TO SIGNING
IT.
COMPANY:
ADCOM
EXPRESS, INC.
By:
/s/ Xxxx X.
Xxxxx
Its:
Chief Executive
Officer
EXECUTIVE:
/s/
Xxxxxx X.
Xxxxxxxx
Xxxxxx
X.
Xxxxxxxx
EXHIBIT
A
PRIOR
INNOVATIONS
None
