SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest reported event) May 9, 1995
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MARK VII, INC.
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(Exact name of Registrant as specified in its charter)
Missouri
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(State or other jurisdiction of incorporation)
0-14810 43-1074964
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(Commission File Number) (IRS Employer Identification No.)
10100 N.W. Executive Hills Blvd., Suite 200, Kansas City, Missouri
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(Address of principal executive offices)
64153
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(Zip Code)
Registrant's telephone number, including area code (816)891-0500
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Not Applicable
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(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
On May 9, 1995, the Registrant issued a press release
announcing the filing of a registration statement with the
Securities and Exchange Commission relating to a previously
announced proposed underwritten secondary offering of shares of
common stock by Roger M. Crouch, a director of the Registrant, and
certain relatives of Mr. Crouch and related entities. As described
in the press release, in connection with the closing of the
proposed secondary offering, Mr. Crouch will resign as a director
of the Registrant. Pursuant to an existing employment agreement,
however, Mr. Crouch remains available to serve the Registrant on an
as-requested basis and remains subject to a non-compete agreement.
A copy of such agreement is attached as an exhibit hereto, along
with the employment agreements between the Registrant and the named
executive officers, excluding Mr. Musacchio, whose agreement is
subject to further negotiation and which is expected to be
substantially similar to the agreement with Mr. Liss.
The foregoing is qualified in its entirety by reference
to the exhibits hereto.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit 1 Press Release issued May 9, 1995 by
the Registrant
Exhibit 2 Employment and Noncompete Agreement
between Roger M. Crouch and the
Registrant dated as of December 23,
1992
Exhibit 3 Employment and Noncompete Agreement
between R.C. Matney and the
Registrant dated as of April 1, 1992.
Revised Addendum to Employment and
Noncompete Agreement between R.C.
Matney and the Registrant dated as
of July 1, 1994
Exhibit 4 Employment and Noncompete Agreement
between J. Michael Head and the
Registrant dated as of August 1,
1992. Addendum to Employment and
Noncompete Agreement between J.
Michael head and the Registrant
dated as of February 1, 1995
Exhibit 5 Employment and Noncompete Agreement
between David H. Wedaman and the
Registrant dated as of January 1,
1992
Exhibit 6 Employment and Noncompete Agreement
between Robert E. Liss and Jupiter
Transportation, Inc., an indirect
wholly owned subsidiary of the
Registrant, dated as of July 1, 1994
Exhibit 7 Employment and Noncompete Agreement
between James T. Graves and the
Registrant dated as of August 1,
1992
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
MARK VII, INC.
By: /s/ James T. Graves
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Name: James T. Graves
Title: Vice Chairman, General
Counsel and Secretary
PRESS RELEASE
Kansas City, MO, May 9, 1995 -- Mark VII, Inc. (Nasdaq NMS:
MVII) announced that it has filed with the Securities and Exchange
Commission on behalf of Roger M. Crouch, a director of the Company,
and certain relatives and related entities of Mr. Crouch a
registration statement relating to the previously announced proposed
underwritten secondary offering of up to 1,269,613 shares of Common
Stock of the Company. The offering will be made with respect to
currently outstanding shares and will not include the issuance of any
additional shares by the Company. It is expected that Mr. Crouch will
bear all the expenses of the secondary offering. The Company will not
receive any of the proceeds from the offering. Alex. Brown & Sons
Incorporated will act as underwriter.
In connection with the closing of the proposed secondary
offering, Mr. Crouch will resign as a director of the Company.
Pursuant to an existing employment agreement, however, Mr. Crouch
remains available to serve the Company on an as-requested basis and
remains subject to a non-compete agreement.
The registration statement relating to these securities has
not yet become effective. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This press release shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any
sale of such securities in any state in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under
the securities laws of any such state.
CONTACT: J. Michael Head (816) 891-0500
EMPLOYMENT AND NONCOMPETE AGREEMENT
23rd day of December, 1992, is made by and among ROGER M. CROUCH,
a resident of the State of Missouri ("Executive"); and MNX
INCORPORATED, a Missouri corporation (THIS AGREEMENT, dated this
"Employer").
RECITALS
A. Employer and its subsidiaries are engaged in the business
of freight transportation services, both providing and arranging
transportation of goods. Subsequent references to Employer herein
shall be deemed to also include Employer's subsidiary corporations.
B. Executive desires to continue to be employed by Employer as
Vice Chairman of the Board of Directors and Chairman of the Executive
Committee (hereafter collectively "Vice Chairman"), and Employer
desires to employ Executive in such capacity under the terms set forth
herein.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and other good and valuable consideration,
sufficiency of which is hereby acknowledged by Executive and Employer,
the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby accepts
employment with Employer for a period of ten (10) years subsequent to
the date hereof , unless sooner terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall undertake
and assume responsibility for those duties that Employer's Board of
Directors shall, from time to time, assign to Executive. Executive's
principal duties as of the date of this Agreement shall be and are
those typically performed by the Vice Chairman of a company; however,
Employer may, for any reason whatsoever, reassign Executive's duties
to another person.
Subject to appropriate action by Employer's Board of Directors,
Executive has been elected as Vice Chairman of Employer; however,
nothing contained in this Agreement shall be interpreted to require
Employer's Board of Directors to elect Executive to any corporate
office or to prevent Employer's Board of Directors, in their sole
discretion and without cause, from removing Executive from an office
to which he may be elected.
Executive shall, at all times, faithfully and to the best of his
ability, experience and talents, perform the duties set forth herein
or to which Executive may, in the future, be assigned, always acting
solely in the best interests of the Employer.
2.02 Time Devoted to Employment. Executive shall devote the
majority of his time and attention to performance of the above
described assigned employment duties; provided, however, he shall be
allowed to also pursue those separate and personal business interests
which do not conflict or compete with the business of the Employer
directly or indirectly. The Executive will not be involved in any
transportation ventures other than those of the Employer without the
advance written authorization of the Employer's Board of Directors
which will not be unreasonably withheld.
It is also understood that the Executive is not hereby precluded
from engaging in appropriate civic, charitable or religious activities
or from devoting less than a majority of his time to private
investments that do not compete with the business of Employer.
In the event the Employer's Board of Directors shall reassign the
duties of the Executive as Vice Chairman to another person, the
Executive shall thereafter serve as a member of the Executive
Committee of MNX, engaged in the consultation, performance and
management of those specific projects which are acceptable to the
Executive and to the Employer and which are consistent with his
experience and competence.
3. Compensation.
During the term of this Agreement, Employer shall pay to
Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of Two Hundred Twenty-five Thousand and No/100 Dollars
($225,000) per year ("Base Salary"), payable in equal bi-weekly
installments on alternate Fridays. Employer's Board of Directors
shall have the complete discretion to increase or decrease Executive's
salary at any time; however, it shall not be reduced to less than the
original Base Salary. Executive shall be given equal consideration,
along with other members of senior executive management, for merit,
longevity, and cost of living salary increases.
3.02 Bonus. In addition to the Base Salary, Executive shall
receive a bonus of $210,000 in cash on the date of this Agreement.
Executive shall participate equally in any senior executive management
bonus program established by Employer.
3.03 Fringe Benefits. Executive shall receive all of the fringe
benefits Employer offers to other members of senior executive
management.
3.04 Reimbursement of Expenses. Employer shall reimburse
Executive for ordinary, necessary and reasonable business expenses
incurred to conduct or promote Employer's business, including travel
and entertainment, provided Executive submits an itemization of such
expenses and supporting documentation therefor, all according to
Employer's generally applicable procedures.
3.05 Stock Options. By separate document, Employer has provided
Employee with an option to purchase 60,000 shares of Employer's common
stock, exercisable at not more than $8.25 per share, 30,000 of which
vested February 3, 1992 with the remainder vesting in 5 equal annual
installments , commencing February 3, 1993 , exercisable one year
after vesting. All such options shall lapse 10 years subsequent to
grant.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of
his employment by Employer, he has, in the past, used and acquired
and, in the future, will use and acquire knowledge and information
used by Employer in its business and which is not generally available
to the public or to persons in the transportation industry, including,
without limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer software
programs; test results; data; manuals; methods of accounting;
financial information; devices; systems; procedures; manuals; internal
reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing
and contemplated products and service, except such information known
by Executive prior to his employment by Employer ("Confidential
Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation set forth
herein, Executive agrees that, during the term of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not,
directly or indirectly, divulge or disclose to any person, for any
purpose, for a period of three (3) years after the termination of this
Agreement, any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then
only if use by such person is for Employer's benefit.
4.02 Covenant Against Competition. During the term of this
Agreement and subject to the provisions of section 6.05 below, for a
period of three (3) years after the termination of this Agreement,
Executive shall not have any interest in or be engaged ("Prohibited
Activity") by any business or enterprise that is in the business of
providing motor freight transportation services or arranging for the
transportation of goods, including any business that acts as a
licensed property broker or shipper's agent, which is directly
competitive with any aspect of the business Employer now conducts or
which Employer in the future conducts during the term of operation of
this Section 4.02. For purposes of this Section 4.02, Executive shall
be deemed to have an "interest in or be engaged by a business or
enterprise" if Executive acts (a) individually, (b) as a partner,
officer, director, shareholder, employee, associate, agent or owner of
any entity or (c) as an advisor, consultant, lender or other person
related, directly or indirectly, to any business or entity that is
engaging in, or is planning to engage in, any Prohibited Activity.
Ownership of less than five percent (5%) of the outstanding capital
stock of a publicly traded entity that engages in any Prohibited
Activity shall not be a violation of this Section 4.02.
4.03 Employment of Other Employees by Executive. During the term
of this Agreement and, subject to the provisions of section 6.05
below, for a period of three (3) years after the termination of this
Agreement , Executive shall not directly or indirectly solicit for
employment, or employ, except on behalf of Employer, any person who
was an employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
4.04 Judicial Amendment. If a court of competent jurisdiction
determines any of the limitations contained in this Agreement are
unreasonable and may not be enforced as herein agreed, the parties
hereto expressly agree this Agreement shall be amended to delete all
limitations judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum limitations
if such arbitrator(s) or court finds to be reasonable under the
circumstances.
4.05 Irreparable Injury. Executive acknowledges that his
abilities and the services he will provide to Employer are unique and
that his failure to perform his obligations under this Section 4 would
cause Employer irreparable harm and injury. Executive further
acknowledges that the only adequate remedy is one that would prevent
him from breaching the terms of Section 4. As a result, Executive and
Employer agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by
Executive. Nothing contained in this Section 4.05 shall prohibit
Employer from seeking and obtaining any other remedy, including
monetary damages, to which it may be entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall terminate
upon the first of the following events to occur:
a) At the end of ten (10) years subsequent to the date hereof;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined
in section 5.02 (a) below, effective on the day Executive receives
notice from Employer that it is exercising its option granted by this
Section to terminate this Agreement;
d) On the day Executive receives written notice from Employer
that Executive's employment is being terminated for cause, as defined
in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from
Employer specifying any act of insubordination or failure to comply
with any instructions of Employer's Board of Directors or any act or
omission that Employer's Board of Directors believes, in good faith,
materially does, or may, adversely affect Employer's business or
operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
f) On the date Executive resigns or, at the Employer's option,
the date Executive commits any act that is a material breach of this
Agreement; or
g) At Executive's option, on the date Employer commits any act
that is a material breach of this Agreement.
5.02 Definitions. For purposes of Section 5.01 the following
definitions shall apply:
a) "Disability" means Executive's inability, because of
sickness or other incapacity, whether physical or mental, to perform
his duties under this Agreement for a period in excess of one hundred
eighty (180) consecutive days, as professionally determined by two
medical doctors licensed to practice medicine, one of which is
selected by the Employer and one of which is selected by the
Executive. In the event the doctors should disagree as to whether the
Executive is disabled, they shall select a third licensed medical
doctor to make such determination which shall be binding on the
parties hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a failure
resulting from Executive's incapacity to do so because of physical or
mental illness, (ii) a willful act by Executive that constitutes gross
misconduct and which is materially injurious to Employer, (iii)
Executive's commitment of any act of material dishonesty toward
Employer, or (iv) Executive's conviction of any felony involving
dishonest, or immoral conduct.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death or Disability. Upon the
termination of this Agreement pursuant to Section 5.01 (b) (death) or
Section 5.01 (c) (disability), Employer shall pay, or cause to be
paid, to Executive, his designated beneficiary or his legal
representative,
a) the Base Salary and fringe benefits through the period
ending twelve (12) months after occurrence of the event causing
termination; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to
Executive.
6.02 Payments Upon Expiration of Term or Termination, for Cause,
Insubordination, Resignation or Breach by Executive. Upon termination
of this Agreement pursuant to Section 5.01 (a) (lapse of term),
Section 5.01 (d) (cause), Section 5.01 (e) (insubordination), or
Section 5.01 (f) (resignation or breach by Executive), Employer shall
pay, or cause to be paid, to Executive,
a) the Base Salary and fringe benefits for the period ending on
the date this Agreement is terminated pursuant to the appropriate
subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to
Executive.
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g) (Employer's
breach), Employer shall pay to Executive all of the compensation set
forth in Section 3 thru the period ending on the tenth anniversary of
this Agreement . All compensation paid by Employer under the terms of
this Section 6.03 shall be paid in the manner set forth in Section 3.
6.04 Payment of Amounts Due Upon Termination. If Executive is
entitled to payment of Base Salary, fringe benefits or business
expenses upon termination of this Agreement, Employer shall make said
payments within the ordinary course of its business and pursuant to
the terms hereof.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) All of the provisions of Section 4(confidentiality,
noncompete and nonemployment of other employees ) of this Agreement
shall survive termination hereof pursuant to Section 5.01 (d) (cause),
Section 5.01 (e) (insubordination) or Section 5.01 (f) (resignation)
even though the remaining terms and provisions of this Agreement shall
be void, including the terms of Section 3(compensation).
b) Upon termination of this Agreement pursuant to Section 5.01
(a) (lapse of term) Employer may elect to continue the obligations of
Executive set forth in Section 4 (confidentiality noncompete and
nonemployment) for so long as the Employer continues to provide all
compensation set forth in Section 3, but not to exceed three years
subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability)
the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) shall survive for one year
thereafter.
d) Upon termination of this Agreement pursuant to Section 5.01
(g) (Employer breach), all of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other employees)
shall be void.
6.06 Provisions Void Upon Termination. Except as specifically
provided herein to the contrary, all terms and provisions of this
Agreement shall be void upon any termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not, directly
or indirectly, have any interest in any business which is a supplier
of Employer without the express written consent of Employer's Board of
Directors. Such interest shall include, without limitation, an
interest as a partner, officer, director, stockholder, advisor or
employee of or lender to such a supplier. An ownership interest of
less than five percent (5%) in a supplier whose stock is publicly held
or regularly traded shall not be a violation of this Section 7.
8. Indemnification of Executive
The Employer will indemnify the Executive and hold him harmless
(including reasonable attorney fees and expenses) to the fullest
extent now or hereafter permitted by law in connection with any actual
or threatened civil, criminal, administrative or investigative action,
suit or proceeding in which the Executive is a party or witness as a
result of his employment with the Employer. This indemnification
shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal office shall
be located at St. Joseph, Missouri, or at such other location where
Employer and Executive shall mutually agree.
9.02 Assignment. Neither party may assign any of the rights or
obligations under this Agreement without the express written consent
of the other party. For purposes of the foregoing sentence, the term
"assign" shall not include an assignment of this Agreement by written
agreement or by operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties' heirs, successors and assigns, to
the extent allowed herein.
9.04 Severability. The provisions of this Agreement are
severable. The invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity or enforceability
of any other part of this Agreement.
9.05 Waiver. Waiver of any provision of this Agreement or any
breach thereof by either party shall not be construed to be a waiver
of any other provision or any subsequent breach of this Agreement.
9.06 Notices. Any notice or other communication required or
permitted herein shall be sufficiently given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid,
addressed to:
Employer: MNX Incorporated
P.O. Box 939
5310 St. Joseph Avenue
St. Joseph, Missouri 64505
Attention: Chairman of the Board
cc: Randy Sunberg
Shook, Hardy & Bacon
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Executive: Roger M. Crouch
Lathrop, Missouri
or such other address as shall be furnished in writing by any such
party. Any notice sent by the above-described method shall be deemed
to have been received on the date personally delivered or so mailed.
Notices sent by any other method shall be deemed to have been received
when actually received by the addressee or its or his authorized
agent.
9.07 Applicable Law. Except to the extent preempted by federal
law, this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Missouri, without
considering its laws or rules related to choice of law.
9.08 Jurisdiction and Venue. Subject to the arbitration
provision in section 9.11 below, the parties hereby consent, and waive
any objection, to the jurisdiction of either the Circuit Court of
Buchanan County, Missouri or the United States District Court for the
Western District of Missouri over the person of either party for
purposes of any action brought under or as the result of a breach of
this Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within the State of
Missouri. The parties further consent that venue of any action
brought under or as the result of a breach of this Agreement shall be
proper in either of the above named courts and they each waive any
objection thereto.
9.09 Ownership and Return of Documents and Objects. Every plan,
drawing, blueprint, flowchart, listing of source or object code,
notation, record, diary, memorandum, worksheet, manual or other
document, magnetic media and every physical object created or acquired
by Executive as part of his employment by Employer, or which relates
to any aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall, immediately upon
Employer's request or upon termination of this Agreement for any
reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all
documents and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer then in
Executive's possession.
9.10 Attorney's Fees. Subject to the arbitration provision in
Section 9.11 below, if either party brings an action to enforce the
terms hereof, the prevailing party in such action, on trail or appeal,
shall be entitled to its reasonable attorney's fees, costs and
expenses to be paid by the losing party as fixed by the court.
9.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgement upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MNX INCORPORATED ("Employer")
By: /s/ R.C. Matney
-----------------------------
R.C. Matney, Chairman
/s/ Roger M. Crouch
-----------------------------
Roger M. Crouch, in his individual
capacity
"Executive"
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of April 1, 1992, is made by
and among R.C. Matney, a resident of the State of Indiana
("Executive"); and MNX INCORPORATED, a Missouri corporation
("Employer").
RECITALS
A. Employer and it's subsidiaries are engaged in the business
of freight transportation services, both providing and arranging
transportation of goods. Subsequent references to Employer herein
shall be deemed to also include Employer's subsidiary corporations.
B. Executive desires to be employed by Employer as Chairman,
and Employer desires to employ Executive in such capacity under the
terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and other good and valuable consideration,
sufficiency of which is hereby acknowledged by Executive and Employer,
the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby accepts
employment which Employer for the term commencing on the date hereof
and continuing for a period of ten (10) years subsequent to the date
hereof , unless sooner terminated as provided in Section 5. The
parties hereto entered into any earlier "Employment and Noncompete
Agreement" dated March 31, 1989 which is superceded in its entirety by
this Agreement.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall undertake
and assume the responsibility for those duties that Employer's Board
of Directors shall, from time to time, assign to Executive.
Executive's principal duties as of the date of this Agreement shall be
and are those typically performed by the Chairman of a company;
however, Employer may, for any reason whatsoever, reassign Executive's
duties to another person.
Subject to appropriate action by Employer's Board of Directors,
Executive has been elected as Chairman of Employer; however, nothing
contained in this Agreement shall be interpreted to require Employer's
Board of Directors to elect Executive to any corporate office or to
prevent Employer's Board of Directors, in their sole discretion and
without cause, from removing Executive from an office to which he may
be elected.
2.02 Full Time Employment. Executive shall, at all times,
faithfully and to the best of his ability, experience and talents,
perform the duties set forth herein or to which Executive may, in the
future, be assigned, always acting solely in the best interests of the
Employer.
Executive shall devote his full time and attention to performance
of the above described duties; provided, however, he shall be allowed
to engage in appropriate civic, charitable or religious activities and
to devote a reasonable amount of time to passive private investments.
2.03 Reassignment of Duties of Chairman. In the event the
Employer's Board of Directors shall reassign the duties of the
Executive as Chairman to another person, the Executive shall
thereafter serve as President of Mark VII Transportation Co. (a wholly
owned subsidiary of Employer) and as a member of the Executive
Committee of MNX, engaged in the performance and management of
marketing services of Mark VII and the management and administration
of those specific projects which are acceptable to the Employee and
which are consistent with his experience and competence.
Employer undertakes and agrees to make such reassignment of the
duties of Chairman should Executive so request at any time following
the seventh anniversary of this Agreement.
3. Compensation.
During the term of this Agreement, Employer shall pay to
Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of One Hundred Seventy-Five Thousand and No/100 Dollars
($175,000) per year ("Base Salary"), payable in regular equal
installments not less often than monthly. Employer's Board of
Directors shall have the complete discretion to increase or decrease
Executive's salary at any time; however, it shall not be reduced to
less than the original Base Salary. Executive shall be given equal
consideration, along with other members of senior executive
management, for merit, longevity, and cost of living salary increases.
3.02 Bonus. Commencing January 1, 1992, Executive shall
participate equally in any senior executive management bonus program
established by Employer.
3.03 Fringe Benefits. Executive shall receive all of the fringe
benefits Employer offers to other members of senior executive
management.
3.04 Reimbursement of Expenses. Employer shall reimburse
Executive for ordinary, necessary and reasonable business expenses
incurred to conduct or promote Employer's business, including travel
and entertainment, provided Executive submits an itemization of such
expenses and supporting documentation therefor, all according to
Employer's generally applicable procedures.
<PAGE>
3.05 Stock Options. By separate document, Employer shall provide
Employee with an option to purchase 60,000 shares of Employer's common
stock, exercisable at not more than $8.25 per share, of which 30,000
shall vest immediately with the balance vesting in 5 equal annual
installments , commencing January 1, 1993, exercisable one year after
vesting. All such options shall lapse 10 years subsequent to vesting.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of
his employment by Employer, he has, in the past, used and acquired
and, in the future, will use and acquire knowledge and information
used by Employer in its business and which is not generally available
to the public or to persons in the transportation industry, including,
without limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer software
programs; test results; data; manuals; methods of accounting;
financial information; devices; systems; procedures; manuals; internal
reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing
and contemplated products and service, except such information known
by Executive prior to his employment by Employer ("Confidential
Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation set forth
herein, Executive agrees that, during the term of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not,
directly or indirectly, divulge or disclose to any person, for any
purpose, for a period of three (3) years after the termination of this
Agreement,any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then
only if use by such person is for Employer's benefit.
4.02 Covenant Against Competition. During the term of this
Agreement and subject to the provisions of section 6.05 below, for a
period of three (3) years after the termination of this Agreement,
Executive shall not have any interest in or be engaged by any business
or enterprise that is in the business of providing motor freight
transportation services or arranging for the transportation of goods,
including any business that acts as a licensed property broker or
shipper's agent, which is directly competitive with any aspect of the
business Employer now conducts or which Employer is conducting or is
in the process of developing at the time of any competitive actions by
Executive ("Prohibited Activity") except to the extent provided in
section 2. For purposes of this Section 4.02, Executive shall be
deemed to have an "interest in or be engaged by a business or
enterprise" if Executive acts (a) individually, (b) as a partner,
officer, director, shareholder, employee, associate, agent or owner of
any entity or (c) as an advisor, consultant, lender or other person
related, directly or indirectly, to any business or entity that is
engaging in, or is planning to engage in, any Prohibited Activity.
Ownership of less than five percent (5%) of the outstanding capital
stock of a publicly traded entity that engages in any Prohibited
Activity shall not be a violation of this Section 4.02.
<PAGE>
4.03 Employment of Other Employees by Executive. During the term
of this Agreement and, subject to the provisions of section 6.05
below, for a period of three (3) years after the termination of this
Agreement , Executive shall not directly or indirectly solicit for
employment, or employ, except on behalf of Employer, any person who
was an employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
4.04 Judicial Amendment. If a court of competent jurisdiction
determines any of the limitations contained in this Agreement are
unreasonable and may not be enforced as herein agreed, the parties
hereto expressly agree this Agreement shall be amended to delete all
limitations judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum limitations
such court finds to be reasonable under the circumstances.
4.05 Irreparable Injury. Executive acknowledges that his
abilities and the services he will provide to Employer are unique and
that his failure to perform his obligations under this Section 4 would
cause Employer irreparable harm and injury. Executive further
acknowledges that the only adequate remedy is one that would prevent
him from breaching the terms of Section 4. As a result, Executive and
Employer agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by
Executive. Nothing contained in this Section 4.05 shall prohibit
Employer from seeking and obtaining any other remedy, including
monetary damages, to which it may be entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall terminate
upon the first of the following events to occur:
a) At the end of ten (10) years subsequent to the date hereof;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined
in section 5.02 (a) below, effective on the day Executive receives
notice from Employer that it is exercising its option granted by this
Section to terminate this Agreement;
d) On the day Executive receives written notice from Employer
that Executive's employment is being terminated for cause, as defined
in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from
Employer specifying any act of insubordination or failure to comply
with any instructions of Employer's Board of Directors or any act or
omission that Employer's Board of Directors believes, in good faith,
materially does, or may, adversely affect Employer's business or
operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
f) On the date Executive resigns or, at the Company's option,
the date Executive commits any act that is a material breach of this
Agreement; and
g) At Executive's option, on the date Employer commits any act
that is a material breach of this Agreement.
5.02 Definitions. For purposes of Section 5.01 the following
definitions shall apply:
a) "Disability" means Executive's inability, because of
sickness or other incapacity, whether physical or mental, to perform
his duties under this Agreement for a period in excess of one hundred
eighty (180) substantially consecutive days, as professionally
determined by two medical doctors licensed to practice medicine, one
of which is selected by the Employer and one of which is selected by
the Executive. In the event the doctors should disagree as to whether
the Executive is disabled, they shall select a third licensed medical
doctor to make such termination which shall be binding on the parties
hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a failure
resulting from Executive's incapacity to do so because of physical or
mental illness, (ii) a willful act by Executive that constitutes gross
misconduct and which is materially injurious to Employer, (iii)
Executive's commitment of any act of dishonesty toward Employer, theft
of corporate property or unethical business conduct or (iv)
Executive's conviction of any felony involving dishonest, or immoral
conduct.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death or Disability. Upon the
termination of this Agreement pursuant to Section 5.01 (b) (death) or
Section 5.01 (c) (disability), Employer shall pay, or cause to be
paid, to Executive, his designated beneficiary or his legal
representative,
a) the Base Salary and fringe benefits through the period
ending twelve (12) months after occurrence of the event causing
termination; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to
Executive.
6.02 Payments Upon Expiration of Term or Termination, for Cause,
Insubordination, Resignation or Breach by Executive. Upon termination
of this Agreement pursuant to Section 5.01 (a) (lapse of term),
Section 5.01 (d) (cause), Section 5.01 (e) (insubordination), or
Section 5.01 (f) (resignation or breach by Executive), Employer shall
pay, or cause to be paid, to Executive,
a) the Base Salary and fringe benefits for the period ending on
the date this Agreement is terminated pursuant to the appropriate
subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to
Executive.
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g) (Employer's
breach), Employer shall pay to Executive all of the compensation set
forth in Section 3 thru the period ending on the tenth anniversary of
this Agreement . All compensation paid by Employer under the terms of
this Section 6.03 shall be paid in the manner set forth in Section 3.
6.04 Payment of Amounts Due Upon Termination and Mitigation. If
Executive is entitled to payment of Base Salary, fringe benefits or
business expenses upon termination of this Agreement, Employer shall
make said payments within the ordinary course of its business and
pursuant to the terms hereof. All such payments shall be reduced by
the amount of compensation earned by the Executive from other
employment.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) All of the provisions of Section 4(confidentiality,
noncompete and nonemployment of other employees ) of this Agreement
shall survive termination hereof pursuant to Section 5.01 (d) (cause),
Section 5.01 (e) (insubordination) or Section 5.01 (f) (resignation)
even though the remaining terms and provisions of this Agreement shall
be void, including the terms of Section 3(compensation).
b) Upon termination of this Agreement pursuant to Section 5.01
(a) (lapse of term) Employer may elect to continue the obligations of
Executive set forth in Section 4 (confidentiality noncompete and
nonemployment) for so long as the Employer continues to provide all
compensation set forth in Section 3, but not to exceed three years
subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability)
the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) shall survive for one year
thereafter.
d) Upon termination of this Agreement pursuant to Section 5.01
(g) (Employer breach), all of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other employees)
shall be void.
6.06 Provisions Void Upon Termination. Except as specifically
provided herein to the contrary, all terms and provisions of this
Agreement shall be void upon any termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not, directly
or indirectly, have any interest in any business which is a supplier
of Employer without the express written consent of Employer's Board of
Directors. Such interest shall include, without limitation, an
interest as a partner, officer, director, stockholder, advisor or
employee of or lender to such a supplier. An ownership interest of
less than five percent (5%) in a supplier whose stock is publicly held
or regularly traded shall not be a violation of this Section 7.
8. Indemnification of Executive
The Employer will indemnify the Executive and hold him harmless
(including reasonable attorney fees and expenses) to the fullest
extent now or hereafter permitted by law in connection with any actual
or threatened civil, criminal, administrative or investigative action,
suit or proceeding in which the Executive is a party or witness as a
result of his employment with the Employer. This indemnification
shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal office shall
be located at Indianapolis, Indiana, or at such other location where
Employer and Executive shall mutually agree.
9.02 Assignment. Neither party may assign any of the rights or
obligations under this Agreement without the express written consent
of the other party. For purposes of the foregoing sentence, the term
"assign" shall not include an assignment of this Agreement by written
agreement or by operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties' heirs, successors and assigns, to
the extent allowed herein.
9.04 Severability. The provisions of this Agreement are
severable. The invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity or enforceability
of any other part of this Agreement.
9.05 Waiver. Waiver of any provision of this Agreement or any
breach thereof by either party shall not be construed to be a waiver
of any other provision or any subsequent breach of this Agreement.
9.06 Notices. Any notice or other communication required or
permitted herein shall be sufficiently given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid,
addressed to:
Employer: MNX Incorporated
P.O. Box 939
5310 St. Joseph Avenue
St. Joseph, Missouri 64505
Attention: Chairman of the Board
cc: Randy Sunberg
Shook, Hardy & Bacon
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Executive: R.C. Matney Indianapolis, Indiana
or such other address as shall be furnished in writing by any such
party. Any notice sent by the above-described method shall be deemed
to have been received on the date personally delivered or so mailed.
Notices sent by any other method shall be deemed to have been received
when actually received by the addressee or its or his authorized
agent.
9.07 Applicable Law. Except to the extent preempted by federal
law, this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Missouri, without
considering its laws or rules related to choice of law.
9.08 Jurisdiction and Venue. Subject to the arbitration
provision in section 9.11 below, the parties hereby consent, and waive
any objection, to the jurisdiction of either the Circuit Court of
Buchanan County, Missouri or the United States District Court for the
Western District of Missouri over the person of either party for
purposes of any action brought under or as the result of a breach of
this Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within the State of
Missouri. The parties further consent that venue of any action
brought under or as the result of a breach of this Agreement shall be
proper in either of the above named courts and they each waive any
objection thereto.
9.09 Ownership and Return of Documents and Objects. Every plan,
drawing, blueprint, flowchart, listing of source or object code,
notation, record, diary, memorandum, worksheet, manual or other
document, magnetic media and every physical object created or acquired
by Executive as part of his employment by Employer, or which relates
to any aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall, immediately upon
Employer's request or upon termination of this Agreement for any
reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all
documents and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer then in
Executive's possession.
9.10 Attorney's Fees. Subject to the arbitration provision in
Section 9.11 below, if either party brings an action to enforce the
terms hereof, the prevailing party in such action, on trail or appeal,
shall be entitled to its reasonable attorney's fees, costs and
expenses to be paid by the losing party as fixed by the court.
9.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgement upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
<PAGE>
WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
/s/ R.C. Matney
---------------------------------------
R.C. Matney, in his individual capacity
(Executive)
MNX INCORPORATED
a Missouri corporation
By: /s/ J. Michael Head
---------------------------------------
(Employer) J. Michael Head
President and Chief Executive Officer
- ----------------------------------------------------------------------
REVISED ADDENDUM TO
EMPLOYMENT AND NONCOMPETE AGREEMENT
R.C. MATNEY
THIS AGREEMENT, dated this 1st day of July, 1994, is made by and among
R.C. Matney, a resident of the State of Indiana ("Executive"), and
Mark VII, Inc., a Missouri corporation. ("Employer").
RECITALS
Executive and Employer previously entered into "Employment and
Noncompete Agreement" as of April 1, 1992, of which a true and
correct copy is attached ("Agreement"). The parties hereto undertake
and agree to modify said Agreement to the extent expressly stated
herein. In all other respects, said Agreement shall remain as
originally stated.
AGREEMENTS
In consideration of the mutual promises, covenants and agreements
contained herein and in the underlying Agreement, the parties do
hereby further agree as follows:
1. Base Salary.
The base salary of Executive shall be $235,000 a year commencing July
1,1994.
2. Annual Performance Bonus.
Commencing in 1995, Executive shall be paid two annual cash bonuses,
neither of which shall exceed half of his base salary.
Once such bonuses shall be paid immediately following the completion
of the annual audit for the fiscal year in an amount equal to that
percentage of the base salary of the Executive by which consolidated
income from continuing operations before income tax for the fiscal
year 1994 exceeds $4,199,325 (the fiscal 1993 amount) plus 25% each
year thereafter. However, for any fiscal year during which a 25%
increase in consolidated income from continuing operations before
income tax is not attained, this bonus shall not be paid.
The other bonus shall be paid immediately following June 30 each year
in an amount equal to that percentage of the base salary of the
Executive by which the increase (if any) in the per share price of the
common stock of Mark VII from July 1, 1994 to June 30, 1995, and each
subsequent year thereafter during the term hereof, exceeds the
increase in the average of per share prices of the common stock of
certain other companies in the Company's industry (the "transportation
services peer group").
Employer's Board of Directors shall indentify those companies deemed
to constitute Employer's "peer group" from time to time in its
direction. It is agreed, however, that initially said peer group is
deemed by said Board to constitute the following companies:
Air Express Internationl Harper Group
Expediters International Intertrans
Fritz Company
3. Stock Options.
In addition to options to purchase 60,000 shares of Employers common
stock set forth at 3.05 of Agreement by separate instrument Employer
shall provide Executive with options to purchase an additional 250,000
shares of Employer's common stock, exercisable at a price equal to
$14.00, the closing price on July 1, 1994. Such options will vest at
the rate of 31,250 shares a year commencing with the effective date
of this Agreement and shall lapse five years subsequent to vesting.
It is agreed and understood that this grant of options is subject to
(1)stockholder approval of an increase in the number of shares of
common stock reserved for issuance upon the exercise of options, a
proposal which has been recommended by the Board to the stockholders
for their vote at the annual meeting of the shareholders of Mark VII,
Inc. which is expected to be conducted in September of 1994 and (2)
consummation of the sale of assets by Missouri-Nebraska Express to
Swift Transportation Co., Inc. on or before December 31, 1994.
4. Duties and Position of Executive.
Employer's Board of Directors has elected Executive as Chairman,
President and Chief Executive Officer. Executive herewith agrees to
undertake and assume responsibility for the duties of such offices.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on
the day and year first above written.
"EXECUTIVE" "EMPLOYER"
MARK VII, INC.
a Missouri corporation
/s/ R. C. Matney By: /s/ James T. Graves
- ---------------------------------- ------------------------------
R.C. Matney James T. Graves, Vice Chairman
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of August, 1992, is made by
and among J. MICHAEL HEAD, a resident of the State of Missouri
("Executive"); and MNX INCORPORATED, a Missouri corporation
("Employer").
RECITALS
A. Employer and it's subsidiaries are engaged in the business
of freight transportation services, both providing and arranging
transportation of goods. Subsequent references to Employer herein
shall be deemed to also include Employer's subsidiary corporations.
B. Executive desires to be employed by Employer as its
President and Chief Executive Officer and Employer desires to employ
Executive in such capacity under the terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration,
sufficiency of which is hereby acknowledged by Executive and Employer,
the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby accepts
employment which Employer for the term commencing on the date hereof
and continuing for a period of three (3) years subsequent to the date
hereof , unless sooner terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall undertake
and assume the responsibility for those duties that Employer's Board
of Directors shall, from time to time, assign to Executive.
Executive's principal duties as of the date of this Agreement shall be
and are those typically performed by the President and Chief
Executive Officer of a company; however, Employer may, for any reason
whatsoever, reassign Executive's duties to another person.
Subject to appropriate action by Employer's Board of Directors,
Executive has been elected as President and Chief Executive Officer
of Employer; however, nothing contained in this Agreement shall be
interpreted to require Employer's Board of Directors to elect
Executive to any corporate office or to prevent Employer's Board of
Directors, in their sole discretion and without cause, from removing
Executive from an office to which he may be elected.
Executive shall, at all times, faithfully and to the best of his
ability, experience and talents, perform the duties set forth herein
or to which Executive may, in the future, be assigned, always acting
solely in the best interests of the Employer.
2.02 Time Devoted to Employment. Executive shall devote a the
majority of his time and attention to performance of the above
described assigned employment duties; provided, however, he shall be
allowed to also pursue those separate and personal business interests
which do not conflict or compete with the business of the Employer
directly or indirectly. The Executive will not be involved in any
transportation ventures other than those of the Employer without the
advance written authorization of the Employer's Board of Directors
which will not be unreasonably withheld.
The Board has approved the participation of Executive in the Dave
Clark Company and Head/Clark Enterprises, Inc. which is involved in
cattle feeding, as well as the ownership of two power units which are
leased to Belger Cartage, a carrier not competitive to the present
activities of Employer.
It is also understood that the Executive is not hereby precluded
from engaging in appropriate civic, charitable or religious activities
or from devoting a reasonable amount of time to private investments
that do not compete with the business of Employer.
In the event the Employer's Board of Directors shall reassign the
duties of the Executive as President and Chief Executive Officer to
another person, the Executive shall thereafter serve as Executive Vice
President and as a member of the Executive Committee of MNX, engaged
in the consultation, performance and management of accounting and
financial services of Employer and the performance of those specific
projects which are acceptable to the Executive and to the Employer
and which are consistent with his experience and competence.
3. Compensation.
During the term of this Agreement, Employer shall pay to
Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of One Hundred Seventy-five Thousand and No/100 Dollars ($
175,000) per year ("Base Salary"), payable in equal bi-weekly
installments on alternate Fridays. Employer's Board of Directors
shall have the complete discretion to increase or decrease Executive's
salary at any time; however, it shall not be reduced to less than the
original Base Salary. Executive shall be given equal consideration,
along with other members of senior executive management, for merit,
longevity, and cost of living salary increases.
3.02 Bonus. Commencing January 1, 1992, Executive shall
participate equally in any senior executive management bonus program
established by Employer.
3.03 Fringe Benefits. Executive shall receive all of the fringe
benefits Employer offers to other members of senior executive
management.
3.04 Reimbursement of Expenses. Employer shall reimburse
Executive for ordinary, necessary and reasonable business expenses
incurred to conduct or promote Employer's business, including travel
and entertainment, provided Executive submits an itemization of such
expenses and supporting documentation therefor, all according to
Employer's generally applicable procedures.
3.05 Stock Options. By separate document, Employer shall provide
Employee with an option to purchase 60,000 shares of MNX common
stock, exercisable at not more than $8.25 per share, of which the
options for 30,000 shares shall vest January 1, 1992 with the
remainder vesting in 5 equal annual installments , commencing January
1, 1997, all exercisable one year after vesting. All such options
shall lapse 10 years subsequent to vesting.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of
his employment by Employer, he has, in the past, used and acquired
and, in the future, will use and acquire knowledge and information
used by Employer in its business and which is not generally available
to the public or to persons in the transportation industry, including,
without limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer software
programs; test results; data; manuals; methods of accounting;
financial information; devices; systems; procedures; manuals; internal
reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing
and contemplated products and service, except such information known
by Executive prior to his employment by Employer ("Confidential
Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation set forth
herein, Executive agrees that, during the term of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not,
directly or indirectly, divulge or disclose to any person, for any
purpose, for a period of three (3) years after the termination of this
Agreement, any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then
only if use by such person is for Employer's benefit.
4.02 Covenant Against Competition. During the term of this
Agreement and subject to the provisions of section 6.05 below, for a
period of three (3) years after the termination of this Agreement,
Executive shall not have any interest in or be engaged by any business
or enterprise that is in the business of providing motor freight
transportation services or arranging for the transportation of goods,
including any business that acts as a licensed property broker or
shipper's agent, which is directly competitive with any aspect of the
business Employer now conducts or which Employer is conducting or is
in the process of developing at the time of any competitive actions by
Executive ("Prohibited Activity") except to the extent provided in
section 2.02. For purposes of this Section 4.02, Executive shall be
deemed to have an "interest in or be engaged by a business or
enterprise" if Executive acts (a) individually, (b) as a partner,
officer, director, shareholder, employee, associate, agent or owner of
any entity or (c) as an advisor, consultant, lender or other person
related, directly or indirectly, to any business or entity that is
engaging in, or is planning to engage in, any Prohibited Activity.
Ownership of less than five percent (5%) of the outstanding capital
stock of a publicly traded entity that engages in any Prohibited
Activity shall not be a violation of this Section 4.02.
4.03 Employment of Other Employees by Executive. During the term
of this Agreement and, subject to the provisions of section 6.05
below, for a period of three (3) years after the termination of this
Agreement , Executive shall not directly or indirectly solicit for
employment, or employ, except on behalf of Employer, any person who
was an employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
4.04 Judicial Amendment. If a court of competent jurisdiction
determines any of the limitations contained in this Agreement are
unreasonable and may not be enforced as herein agreed, the parties
hereto expressly agree this Agreement shall be amended to delete all
limitations judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum limitations
such court finds to be reasonable under the circumstances.
4.05 Irreparable Injury. Executive acknowledges that his
abilities and the services he will provide to Employer are unique and
that his failure to perform his obligations under this Section 4 would
cause Employer irreparable harm and injury. Executive further
acknowledges that the only adequate remedy is one that would prevent
him from breaching the terms of Section 4. As a result, Executive and
Employer agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by
Executive. Nothing contained in this Section 4.05 shall prohibit
Employer from seeking and obtaining any other remedy, including
monetary damages, to which it may be entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall terminate
upon the first of the following events to occur:
a) At the end of three (3) years subsequent to the date
hereof;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined
in section 5.02 (a) below, effective on the day Executive receives
notice from Employer that it is exercising its option granted by this
Section to terminate this Agreement;
d) On the day Executive receives written notice from Employer
that Executive's employment is being terminated for cause, as defined
in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from
Employer specifying any act of insubordination or failure to comply
with any instructions of Employer's Board of Directors or any act or
omission that Employer's Board of Directors believes, in good faith,
materially does, or may, adversely affect Employer's business or
operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
f) At the Company's option, the date Executive commits any act
that is a material breach of this Agreement; and
g) At Executive's option, on the date Employer commits any act
that is a material breach of this Agreement.
h) On the date Executive resigns.
5.02 Definitions. For purposes of Section 5.01 the following
definitions shall apply:
a) "Disability" means Executive's inability, because of
sickness or other incapacity, whether physical or mental, to perform
his duties under this Agreement for a period in excess of one hundred
eighty (180) substantially consecutive days, as professionally
determined by two medical doctors licensed to practice medicine, one
of which is selected by the Employer and one of which is selected by
the Executive. In the event the doctors should disagree as to whether
the Executive is disabled, they shall select a third licensed medical
doctor to make such termination which shall be binding on the parties
hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a failure
resulting from Executive's incapacity to do so because of physical or
mental illness, (ii) a willful act by Executive that constitutes gross
misconduct and which is materially injurious to Employer, (iii)
Executive's commitment of any act of dishonesty toward Employer, theft
of corporate property or unethical business conduct or (iv)
Executive's conviction of any felony involving dishonest, or immoral
conduct.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death, Disability or Resignation.
Upon the termination of this Agreement pursuant to Section 5.01 (b)
(death), Section 5.01 (c) (disability) or Section 5.01 (h)
(resignation), Employer shall pay, or cause to be paid, to Executive,
his designated beneficiary or his legal representative,
a) the Base Salary and fringe benefits through the period
ending twelve (12) months after occurrence of the event causing
termination; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to
Executive.
6.02 Payments Upon Expiration of Term or Termination, for Cause,
Insubordination, or Breach by Executive. Upon termination of this
Agreement pursuant to Section 5.01 (a) (lapse of term), Section 5.01
(d) (cause), Section 5.01 (e) (insubordination), or Section 5.01 (f)
(breach by Executive), Employer shall pay, or cause to be paid, to
Executive,
a) the Base Salary and fringe benefits for the period ending on
the date this Agreement is terminated pursuant to the appropriate
subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to
Executive.
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g) (Employer's
breach), Employer shall pay to Executive all of the compensation set
forth in Section 3 thru the period ending on the third anniversary of
this Agreement . All compensation paid by Employer under the terms of
this Section 6.03 shall be paid in the manner set forth in Section 3.
6.04 Payment of Amounts Due Upon Termination and Mitigation. If
Executive is entitled to payment of Base Salary, fringe benefits or
business expenses upon termination of this Agreement, Employer shall
make said payments within the ordinary course of its business and
pursuant to the terms hereof. All such payments shall be reduced by
the amount of compensation earned by the Executive from other
employment.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) All of the provisions of Section 4(confidentiality,
noncompete and nonemployment of other employees ) of this Agreement
shall survive termination hereof pursuant to Section 5.01 (d) (cause),
Section 5.01 (e) (insubordination), Section 5.01 (f) (breach by
Executive) or Section 5.01 (h) (resignation) even though the remaining
terms and provisions of this Agreement shall be void, including the
terms of Section 3(compensation).
b) Upon termination of this Agreement pursuant to Section 5.01
(a) (lapse of term) Employer may elect to continue the obligations of
Executive set forth in Section 4 (confidentiality noncompete and
nonemployment) for so long as the Employer continues to provide all
compensation set forth in Section 3, but not to exceed three years
subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability)
the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) shall survive for one year
thereafter.
d) Upon termination of this Agreement pursuant to Section 5.01
(g) (Employer breach), all of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other employees)
shall be void.
6.06 Provisions Void Upon Termination. Except as specifically
provided herein to the contrary, all terms and provisions of this
Agreement shall be void upon any termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not, directly
or indirectly, have any interest in any business which is a supplier
of Employer without the express written consent of Employer's Board of
Directors. Such interest shall include, without limitation, an
interest as a partner, officer, director, stockholder, advisor or
employee of or lender to such a supplier. An ownership interest of
less than five percent (5%) in a supplier whose stock is publicly held
or regularly traded shall not be a violation of this Section 7.
8. Indemnification of Executive
The Employer will indemnify the Executive and hold him harmless
(including reasonable attorney fees and expenses) to the fullest
extent now or hereafter permitted by law in connection with any actual
or threatened civil, criminal, administrative or investigative action,
suit or proceeding in which the Executive is a party or witness as a
result of his employment with the Employer. This indemnification
shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal office shall
be located at St. Joseph, Missouri, or at such other location where
Employer and Executive shall mutually agree.
9.02 Assignment. Neither party may assign any of the rights or
obligations under this Agreement without the express written consent
of the other party. For purposes of the foregoing sentence, the term
"assign" shall not include an assignment of this Agreement by written
agreement or by operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties' heirs, successors and assigns, to
the extent allowed herein.
9.04 Severability. The provisions of this Agreement are
severable. The invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity or enforceability
of any other part of this Agreement.
9.05 Waiver. Waiver of any provision of this Agreement or any
breach thereof by either party shall not be construed to be a waiver
of any other provision or any subsequent breach of this Agreement.
9.06 Notices. Any notice or other communication required or
permitted herein shall be sufficiently given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid,
addressed to:
Employer: MNX Incorporated
P.O. Box 939
5310 St. Joseph Avenue
St. Joseph, Missouri 64505
Attention: Chairman of the Board
cc: Randy Sunberg
Shook, Hardy & Bacon
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Executive: J. Michael Head
Route 2, Box 364
Smithville, Missouri
or such other address as shall be furnished in writing by any such
party. Any notice sent by the above-described method shall be deemed
to have been received on the date personally delivered or so mailed.
Notices sent by any other method shall be deemed to have been received
when actually received by the addressee or its or his authorized
agent.
9.07 Applicable Law. Except to the extent preempted by federal
law, this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Missouri, without
considering its laws or rules related to choice of law.
9.08 Jurisdiction and Venue. Subject to the arbitration
provision in section 9.11 below, the parties hereby consent, and waive
any objection, to the jurisdiction of either the Circuit Court of
Buchanan County, Missouri or the United States District Court for the
Western District of Missouri over the person of either party for
purposes of any action brought under or as the result of a breach of
this Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within the State of
Missouri. The parties further consent that venue of any action
brought under or as the result of a breach of this Agreement shall be
proper in either of the above named courts and they each waive any
objection thereto.
9.09 Ownership and Return of Documents and Objects. Every plan,
drawing, blueprint, flowchart, listing of source or object code,
notation, record, diary, memorandum, worksheet, manual or other
document, magnetic media and every physical object created or acquired
by Executive as part of his employment by Employer, or which relates
to any aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall, immediately upon
Employer's request or upon termination of this Agreement for any
reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all
documents and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer then in
Executive's possession.
9.10 Attorney's Fees. Subject to the arbitration provision in
Section 9.11 below, if either party brings an action to enforce the
terms hereof, the prevailing party in such action, on trail or appeal,
shall be entitled to its reasonable attorney's fees, costs and
expenses to be paid by the losing party as fixed by the court.
9.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgement upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MNX INCORPORATED
By: /s/ R.C. Matney
---------------------
R.C. Matney, Chairman
(Employer)
/s/ J. Michael Head
----------------------
J. Michael Head, in his
individual capacity
(Executive)
- ----------------------------------------------------------------------
ADDENDUM TO
EMPLOYMENT AND NONCOMPETE AGREEMENT
J. Michael Head
THIS AGREEMENT, dated this 1st day of February, 1995, is made by
and between J. Michael Head, a resident of the State of Missouri
("Executive") and Mark VII, Inc., a Missouri Corporation ("Employer").
RECITALS
Executive and Employer previously entered into "Employment and
Noncompete Agreement" as of August 1, 1992, of which a true and
correct copy is attached ("Agreement"). The parties hereto do hereby
undertake and agree to modify said Agreement to the extent expressly
stated herein. In all other respects, said Agreement shall remain as
originally stated.
AGREEMENT
In consideration of mutual promises, covenants and agreements
contained herein and in the underlying Agreement, the parties do
hereby further agree as follows:
1. Term of Employment.
The initial term of Employment shall be until September 30, 1996 after
which further employment shall continue subject to all of the
provisions of this Agreement (excluding Paragraph 5.01(a)) until
either party gives the other 60 days written notice of termination.
2. Duties and Position of Executive.
Employer's Board of Directors has elected Executive as Executive Vice
President, Finance and Administration and as President of its Mark VII
Risk Management Services Division. Executive hereby undertakes and
agrees to perform the duties related to those positions.
3. Additional Options.
In addition to those options referred to in Paragraph 3.05 of the
Agreement, by separate instrument, Employer shall also provide
Employee with an option to purchase 10,000 shares of Employer's
common stock, exercisable at the price equal to $14 per share, the
closing price on July 1, 1994.
It is agreed and understood that this grant of options is subject to
(1)stockholder approval of an increase in the number of shares of
common stock reserved for issuance upon the exercise of options,
a proposal which has been recommended by the Board to the Stockholders
for their vote at the annual meeting of the shareholders of Mark VII,
Inc., which is expected to be conducted in September of 1994; and (2)
closing of the Asset Sale. Said options shall be vested as of the
closing of the Asset Sale and shall lapse five years thereafter.
4. Twelve Months Base Salary and Benefits Subsequent to Termination.
Upon termination of employment for any reason other than cause
(Section 5.01(d)), insubordination (Section 5.01(e)) or breach by
Executive (Section 5.01(f)) Executive shall be paid his then
prevailing base salary and fringe benefits for a period of twelve
subsequent months subject only to the provisions of Section 6.04.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on
the day and year first above written.
"EXECUTIVE"
/s/ J. Michael Head
--------------------
J. Michael Head
"EMPLOYER"
MARK VII, INC.,
a Missouri corporation
By: /s/ R.C. Matney
-----------------------
R.C. Matney, Chairman
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of January, 1992,
is made by and among DAVID H. WEDAMAN , a resident of the
State of Tennessee ("Executive"); MARK VII TRANSPORTATION
COMPANY, INC., a Delaware corporation ("Employer"), a wholly
owned subsidiary of MNX INCORPORATED, a Missouri
corporation (" MNX").
RECITALS
A. Employer, MNX, and it's subsidiaries, are engaged
in the business of freight transportation services, both
providing and arranging transportation of goods. Subsequent
references to Employer herein shall be deemed to also
include MNX and its subsidiary corporations.
B. Executive desires to continue to be employed by
Employer as its Executive Vice President of Transportation
Services, and Employer desires to employ Executive in such
capacity under the terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable
consideration, sufficiency of which is hereby acknowledged
by Executive and Employer, the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby
accepts employment which Employer for the term commencing on
the date hereof and continuing for a period of five (5)
years subsequent to January 1, 1992, unless sooner
terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall
undertake and assume the responsibility for those duties
that Employer's Board of Directors shall, from time to time,
assign to Executive. Executive's principal duties as of the
date of this Agreement shall be and are those typically
performed by an Executive Vice President of a company;
however, Employer may, for any reason whatsoever, reassign
Executive's duties to another person.
Subject to appropriate action by Employer's Board of
Directors, Executive has been elected as Executive Vice
President of Transportation Services of Employer; however,
nothing contained in this Agreement shall be interpreted to
require Employer's Board of Directors to elect Executive to
any corporate office or to prevent Employer's Board of
Directors, in their sole discretion and without cause, from
removing Executive from an office to which he may be
elected.
Executive shall, at all times, faithfully and to the
best of his ability, experience and talents, perform the
duties set forth herein or to which Executive may, in the
future, be assigned, always acting solely in the best
interests of the Employer.
2.02 Time Devoted to Employment. Executive shall devote
a the majority of his time and attention to performance of
assigned employment duties; provided, however, he shall be
allowed to also pursue those separate and personal business
interests which do not conflict or compete with the business
of the Employer directly or indirectly. The Executive will
not be involved in any transportation ventures other than
those of the Employer without the advance written
authorization of the Employer's Board of Directors.
It is also understood that the Executive is not hereby
precluded from engaging in limited appropriate civic,
charitable or religious activities or from devoting limited
amount of time to private investments that do not compete
with the business of Employer.
In the event the Employer's Board of Directors shall
reassign the duties of Executive as Executive Vice
President of Transportation Services to another person, the
Executive shall thereafter continue to serve as a member of
the Executive Committee of MNX, engaged in the consultation,
performance and management of those specific projects to
which he is assigned by the Employer and which are
consistent with his experience and competence.
3. Compensation.
During the term of this Agreement, Employer shall pay
to Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial
base salary of One Hundred Five Thousand Dollars and
No/100 Dollars ($105,000) per year ("Base Salary"), in
equal monthly installments on the first day of each month.
The Base Salary shall be increased annually by a minimum
amount equal to the most recent annual increase in the
Consumer Price Index for the area in which Memphis,
Tennessee is located. The Employer's Board of Directors
will review Executive's performance and adjust his Base
Salary at least annually on or before each anniversary of
this Agreement. The Employer's Board of Directors may
increase the salary of the Executive at any time; provided,
however, that the Board may not reduce the Base Salary fixed
in this Agreement.
<PAGE>
3.02 Bonus. In addition to the Base Salary, in each
fiscal year (commencing with the fiscal year ending December
31, 1992), Employer will provide a bonus to Executive
payable within 90 days following the close of the Employer's
fiscal year. The annual bonus shall be based upon pre-tax
profit (computed on the basis of generally accepted
accounting principles consistently applied) earned by Mark
VII as compared to the annual business plan described in
paragraph 5.02 (c) below, in the following amounts:
% OF BUSINESS BONUS AS A %
PLAN PROFIT ATTAINED OF BASE SALARY
100% 40%
120% 50%
140% 60%
160% 70%
180% 80%
190% 90%
200% 100%
Provided, however, in any year in which results equal to the
1992 business plan pre-tax profit are attained, Executive
shall receive a minimum alternative bonus equal to 25% of
base salary.
In each plan year pre-tax profit shall be reduced by the
amount of the following items:
(a) All charges of Employer to any affiliated company
for services rendered, said services to be to charged at
cost;
(b) Any gain on the sale, casualty or other disposition
of any capital asset of the Employer;
(c) Any other income which was not the result of
ordinary operations of the Employer.
The Board of Directors of the Employer shall make the sole
and final determination of what constitutes "pre-tax
earnings" as defined above.
3.03 Car Allowance. In addition, the Executive shall
receive $400 a month as a car allowance, plus the costs he
incurs in operating his private automobile with respect to
insurance, fuel, oil, filters, hoses, belts, license tags,
one set of tires every four years and sales tax upon
acquisition.
3.04 Fringe Benefits/Vacation. Executive shall receive
standard Mark VII fringe benefits, including three (3)
weeks of vacation with pay each year.
3.05 Reimbursement of Expenses. Employer shall
reimburse Executive for ordinary, necessary and reasonable
business expenses incurred to conduct or promote Employer's
business, including travel and entertainment, provided
Executive submits an itemization of such expenses and
supporting documentation therefor, all according to
Employer's generally applicable procedures.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a
result of his employment by Employer, he has, in the past,
used and acquired and, in the future, will use and acquire
knowledge and information used by Employer in its business
and which is not generally available to the public or to
persons in the transportation industry, including, without
limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer
software programs; test results; data; manuals; methods of
accounting; financial information; devices; systems;
procedures; manuals; internal reports; lists of shippers and
carriers; methods used for and preferred by its customers;
and the pricing structure of its existing and contemplated
products and service, except such information known by
Executive prior to his employment by Employer
("Confidential Information"). As a material inducement to
Employer to enter into this Agreement, and to pay to
Executive the compensation set forth herein, Executive
agrees that, during the term of this Agreement and subject
to the provisions of section 6.05 below, Executive shall
not, directly or indirectly, divulge or disclose to any
person, for any purpose, for a period of three (3) years
after the termination of this Agreement, any Confidential
Information, except to those persons authorized by Employer
to receive Confidential Information and then only if use by
such person is for Employer's benefit.
4.02 Covenant Against Competition. During the
term of this Agreement and subject to the provisions of
section 6.05 below, Executive shall not have any interest
in or be engaged by any business or enterprise that is in
the business of providing motor freight transportation
services or arranging for the transportation of goods,
including any business that acts as a licensed property
broker or shipper's agent, which is directly competitive
with any aspect of the business Employer now conducts or
which Employer is conducting or is in the process of
developing at the time of any competitive actions by
Executive ("Prohibited Activity") except to the extent
provided in section 2. For purposes of this Section 4.02,
Executive shall be deemed to have an "interest in or be
engaged by a business or enterprise" if Executive acts (a)
individually, (b) as a partner, officer, director,
shareholder, employee, associate, agent or owner of any
entity or (c) as an advisor, consultant, lender or other
person related, directly or indirectly, to any business or
entity that is engaging in, or is planning to engage in, any
Prohibited Activity. Ownership of less than five percent
(5%) of the outstanding capital stock of a publicly traded
entity that engages in any Prohibited Activity shall not be
a violation of this Section 4.02.
4.03 Employment of Other Employees by Executive.
During the term of this Agreement and, subject to the
provisions of section 6.05 below, for a period of three (3)
years after the termination of this Agreement , Executive
shall not directly or indirectly solicit for employment, or
employ, except on behalf of Employer, any person who was an
employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
4.04 Judicial Amendment. If a court of competent
jurisdiction determines any of the limitations contained in
this Agreement are unreasonable and may not be enforced as
herein agreed, the parties hereto expressly agree this
Agreement shall be amended to delete all limitations
judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum
limitations such court finds to be reasonable under the
circumstances.
4.05 Irreparable Injury. Executive acknowledges that
his abilities and the services he will provide to Employer
are unique and that his failure to perform his obligations
under this Section 4 would cause Employer irreparable harm
and injury. Executive further acknowledges that the only
adequate remedy is one that would prevent him from breaching
the terms of Section 4. As a result, Executive and Employer
agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive
relief against any threatened or continuing breach of this
Section 4 by Executive. Nothing contained in this Section
4.05 shall prohibit Employer from seeking and obtaining any
other remedy, including monetary damages, to which it may be
entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall
terminate upon the first of the following events to occur:
a) At the end of five (5) years subsequent to January
1, 1992;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability
as defined in section 5.02 (a) below, effective on the day
Executive receives notice from Employer that it is
exercising its option granted by this Section to terminate
this Agreement;
d) On the day Executive receives written notice from
Employer that Executive's employment is being terminated for
cause, as defined in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of
notice from Employer specifying any act of insubordination
or failure to comply with any instructions of Employer's
Board of Directors or any act or omission that Employer's
Board of Directors believes, in good faith, materially does,
or may, adversely affect Employer's business or operations
provided Executive fails to remedy or cease said acts within
said fifteen (15) day period;
f) On the date Executive resigns or, at the
Employer's option, the date Executive commits any act that
is a material breach of this Agreement; and
g) At Executive's option, on the date Employer commits
any act that is a material breach of this Agreement.
h) At Employer's option, upon the failure of Executive
to attain the performance standards of Section 5.02 (c)
below.
5.02 Definitions. For purposes of Section 5.01
the following definitions shall apply:
a) "Disability" means Executive's inability, because
of sickness or other incapacity, whether physical or mental,
to perform his duties under this Agreement for a period in
excess of one hundred eighty (180) substantially consecutive
days, as professionally determined by two medical doctors
licensed to practice medicine, one of which is selected by
the Employer and one of which is selected by the Executive.
In the event the doctors should disagree as to whether the
Executive is disabled, they shall select a third licensed
medical doctor to make such termination which shall be
binding on the parties hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a
failure resulting from Executive's incapacity to do so
because of physical or mental illness, (ii) a willful act by
Executive that constitutes gross misconduct and which is
materially injurious to Employer, (iii) Executive's
commitment of any act of dishonesty toward Employer, theft
of corporate property or unethical business conduct or (iv)
Executive's conviction of any felony involving dishonest,
or immoral conduct.
c) "Business Plan" means that the Executive has
participated in the preparation of a business plan of Mark
VII for 1992, which has been submitted to, and approved by,
the Board of Directors of MNX. For each calendar year
thereafter, through and including 1996, annual business
plans shall be submitted to, and approved by, the Board of
Directors of MNX, which shall constitute the basis of annual
performance reviews. If, at the time of any such annual
performance review, Employer has attained less than 50% of
the pre-tax profit projected in plan, then the Employer
shall, in its sole and exclusive discretion, have the right
to terminate this Agreement pursuant to Section 5.01 (h)
above.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death, Disability or
Failure to Make Plan. Upon the termination of this
Agreement pursuant to Section 5.01 (b) (death), Section
5.01 (c) (disability) or Section 5.01 (h) (failure to make
plan), Employer shall pay, or cause to be paid, to
Executive, his designated beneficiary or his legal
representative,
a) the Base Salary and fringe benefits through the
period ending twelve (12) months after occurrence of the
event causing termination; and
b) all necessary, ordinary, and reasonable business
expenses incurred by Executive prior to termination of this
Agreement.
Employer shall not be obligated to make any other payments
to Executive.
6.02 Payments Upon Expiration of Term or Termination,
for Cause, Insubordination, Resignation or Breach by
Executive. Upon termination of this Agreement pursuant to
Section 5.01 (a) (lapse of term), Section 5.01 (d) (cause),
Section 5.01 (e) (insubordination), or Section 5.01 (f)
(resignation or breach by Executive), Employer shall pay, or
cause to be paid, to Executive,
a) the Base Salary and fringe benefits for the period
ending on the date this Agreement is terminated pursuant to
the appropriate subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business
expenses incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments
to Executive.
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g)
(Employer's breach), Employer shall pay to Executive all of
the compensation set forth in Section 3, excepting bonus
pursuant to Section 3.02, thru December 31, 1996. All
compensation paid by Employer under the terms of this
Section 6.03 shall be paid in the manner set forth in
Section 3.
6.04 Payment of Amounts Due Upon Termination and
Mitigation. If Executive is entitled to payment of Base
Salary, fringe benefits or business expenses upon
termination of this Agreement, Employer shall make said
payments within the ordinary course of its business and
pursuant to the terms hereof. All such payments shall be
reduced by the amount of compensation earned by the
Executive from other employment.
6.05 Effect of Termination on Nondisclosure, Noncompete
and Nonsolicitation Provisions.
a) All of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other
employees ) of this Agreement shall survive termination
hereof pursuant to Section 5.01 (d) (cause), Section 5.01
(e) (insubordination) or Section 5.01 (f) (resignation) even
though the remaining terms and provisions of this Agreement
shall be void, including the terms of Section 3
(compensation).
b) Upon termination of this Agreement pursuant to
Section 5.01 (a) (lapse of term) or Section 5.01 (h)
(failure to make plan), Employer may elect to continue the
obligations of Executive set forth in Section 4
(confidentiality, noncompete and nonemployment or other
employees) for so long as the Employer continues to provide
all compensation set forth in Section 3, but not to exceed
three years subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c)
(disability) the provisions of Section 4 (confidentiality,
noncompete and nonemployment of other employees) shall
survive for one year thereafter.
d) Upon termination of this Agreement pursuant to
Section 5.01 (g) (Employer breach), all of the provisions of
Section 4 (confidentiality, noncompete and nonemployment of
other employees) shall be void.
6.06 Provisions Void Upon Termination. Except as
specifically provided herein to the contrary, all terms and
provisions of this Agreement shall be void upon any
termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not,
directly or indirectly, have any interest in any business
which is a supplier of Employer without the express written
consent of Employer's Board of Directors. Such interest
shall include, without limitation, an interest as a partner,
officer, director, stockholder, advisor or employee of or
lender to such a supplier. An ownership interest of less
than five percent (5%) in a supplier whose stock is publicly
held or regularly traded shall not be a violation of this
Section 7.
8. Indemnification of Executive
The Employer will indemnify the Executive and hold him
harmless (including reasonable attorney fees and expenses)
to the fullest extent now or hereafter permitted by law in
connection with any actual or threatened civil, criminal,
administrative or investigative action, suit or proceeding
in which the Executive is a party or witness as a result of
his employment with the Employer. This indemnification
shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal
office shall be located at Memphis, Tennessee , or at such
other location where Employer and Executive shall mutually
agree.
9.02 Assignment. Neither party may assign any of the
rights or obligations under this Agreement without the
express written consent of the other party. For purposes of
the foregoing sentence, the term "assign" shall not include
an assignment of this Agreement by written agreement or by
operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties' heirs,
successors and assigns, to the extent allowed herein.
9.04 Severability. The provisions of this Agreement
are severable. The invalidity or unenforceability of any
one or more of the provisions hereof shall not affect the
validity or enforceability of any other part of this
Agreement.
9.05 Waiver. Waiver of any provision of this Agreement
or any breach thereof by either party shall not be construed
to be a waiver of any other provision or any subsequent
breach of this Agreement.
9.06 Notices. Any notice or other communication
required or permitted herein shall be sufficiently given if
delivered in person or sent by certified mail, return
receipt requested, postage prepaid, addressed to:
Employer: MNX Incorporated
P.O. Box 939
5310 St. Joseph Avenue
St. Joseph, Missouri 64505
Attention: Chairman of the Board
cc: Randy Sunberg
Shook, Hardy & Bacon
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Executive: David H. Wedaman
1847 Woodridge Cove
Memphis, Tennessee 38138
or such other address as shall be furnished in writing by
any such party. Any notice sent by the above-described
method shall be deemed to have been received on the date
personally delivered or so mailed. Notices sent by any
other method shall be deemed to have been received when
actually received by the addressee or its or his authorized
agent.
9.07 Applicable Law. Except to the extent preempted by
federal law, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the
State of Missouri, without considering its laws or rules
related to choice of law.
9.08 Jurisdiction and Venue. Subject to the
arbitration provision in section 9.11 below, the parties
hereby consent, and waive any objection, to the jurisdiction
of either the Circuit Court of Buchanan County, Missouri or
the United States District Court for the Western District of
Missouri over the person of either party for purposes of any
action brought under or as the result of a breach of this
Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within
the State of Missouri. The parties further consent that
venue of any action brought under or as the result of a
breach of this Agreement shall be proper in either of the
above named courts and they each waive any objection
thereto.
9.09 Ownership and Return of Documents and Objects.
Every plan, drawing, blueprint, flowchart, listing of source
or object code, notation, record, diary, memorandum,
worksheet, manual or other document, magnetic media and
every physical object created or acquired by Executive as
part of his employment by Employer, or which relates to any
aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall,
immediately upon Employer's request or upon termination of
this Agreement for any reason, deliver to Employer each and
every original, copy, complete or partial reproduction,
abstract or summary, however reproduced, of all documents
and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer
then in Executive's possession.
9.10 Attorney's Fees. Subject to the arbitration
provision in Section 9.11 below, if either party brings an
action to enforce the terms hereof, the prevailing party in
such action, on trail or appeal, shall be entitled to its
reasonable attorney's fees, costs and expenses to be paid by
the losing party as fixed by the court.
9.11 Arbitration. Any controversy or claim arising out
of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association and judgement upon the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereof.
WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first above
written.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MNX INCORPORATED
By: /s/ R.C. Matney
------------------------------
R.C. Matney, Chairman
MARK VII TRANSPORTATION CO., INC.
By: /s/ R.C. Matney
-----------------------------
R.C. Matney, President
/s/ David H. Wedaman
-----------------------------
David H. Wedaman , in his
individual capacity (Executive)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of July, 1994, is made by
and among ROBERT E. LISS, a resident of the State of Arizona
("Executive"); and JUPITER TRANSPORTATION, INC., a Kansas corporation
("Employer"), a wholly owned subsidiary of MARK VII TRANSPORTATION
COMPANY, INC., a Delaware corporation ("Mark VII").
RECITALS
A. Employer, Mark VII, and it's subsidiaries, are engaged in
the business of freight transportation services, both providing and
arranging transportation of goods. Subsequent references to Employer
herein shall be deemed to also include Mark VII and its subsidiary
corporations.
B. Executive desires to continue to be employed by Employer as
President and Employer desires to employ Executive in such capacity
under the terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and other good and valuable consideration,
sufficiency of which is hereby acknowledged by Executive and Employer,
the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby accepts
employment with Employer until terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall undertake
and assume the responsibility for those duties that Employer's Board
of Directors shall, from time to time, assign to Executive.
Executive's principal duties as of the date of this Agreement shall be
and are those typically performed by a President of a subsidiary.
Executive has been elected President of Jupiter Transportation, Inc.
Executive shall, at all times, faithfully and to the best of his
ability, experience and talents, perform the duties set forth herein
or to which Executive may, in the future, be assigned, always acting
solely in the best interests of the Employer.
2.02 Business Units/Profit Centers Assigned to Executive.
(a) Executive shall have specific profit/loss management
responsibility for profit centers or business units which are, from
time to time, assigned to him by the Chairman or the Board of
Directors of Mark VII subject to Executive's consent. Once so
assigned and accepted, a profit center may not be reassigned or
withdrawn from the scope of Executive's management responsibility
without his consent.
(b) All business opportunities arising out of or related to
logistics and/or transportation services which are encountered or
developed by Executive belong to Mark VII. In each instance, the
Board or senior management or Mark VII shall determine whether or not
the business opportunity or venture shall be pursued, and if so, under
what terms and conditions and whether or not it is to be assigned to
the management supervision of Executive pursuant to this agreement.
(c) Each business opportunity, profit center or business unit
will be conducted pursuant to an annual business plan approved by the
Board or senior management of Mark VII. Following any month when plan
results are not being attained, Mark VII has the unilateral right to
discontinue the business unit, profit center or venture with no
further claim of interest on the part of Executive.
2.03 Other Employees or Agents of Mark VII. Executive has no
authority to engage or employ other agents or employees of Employer,
Mark VII or any of its subsidiaries without the advance express
consent of the Board of Employer. Executive may not elect, without
advance approval of senior management of Mark VII, to share his bonus
with any other employee or agent of Mark VII. No other agent or
employee of Mark VII shall be permitted to utilize the business units
or profit centers assigned to the management of Executive to provide
transportation services or logistics support to customers assigned,
for commission purposes, to that employee or agent, without advance
approval of senior management of Mark VII.
2.04 Time Devoted to Employment. Executive shall devote full time
and attention to performance of assigned employment duties. Executive
will not be involved in any transportation ventures other than those
of the Employer without the advance written authorization of the
Employer's Board of Directors.
It is also understood that Executive is not hereby precluded from
engaging in limited appropriate civic, charitable or religious
activities or from devoting limited time to private investments that
do not compete with the business of Employer.
3. Compensation.
During the term of this Agreement, Employer shall pay to
Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of One Hundred Twenty Five Thousand Dollars and No/100
($125,000) per year ("Base Salary"), in equal weekly installments.
The Employer's Board of Directors may increase the salary of Executive
at any time; provided, however, that the Board may not reduce the Base
Salary specified herein.
3.02 Bonus. In addition to the Base Salary, in each fiscal year
(commencing with the fiscal year ending December 31, 1994), Employer
will provide a bonus to Executive payable within 90 days following the
close of Employer's fiscal year. The annual bonus shall be an amount
equal to 25% of the pre-tax profit (computed on the basis of generally
accepted accounting principles consistently applied) earned by the
business units and profit centers assigned to the management
responsibility of Executive.
The calculation of pre-tax profit shall incorporate the following
factors:
(a) In the case of each new business unit or profit center
assigned to the management responsibility of Executive, senior
management of Mark VII shall determine, on a case by case basis,
whether or not the start up losses, or what portion thereof, shall be
charged against pre-tax profits earned in other business units
assigned to the management supervision of Executive.
(b) In no event shall pre-tax profit include rail volume
incentive credits or credit for unbilled freight.
(c) Each unit will be charged a $7.50 administrative fee for
each invoice.
(d) Each unit will be charged interest expense on receivables at
a rate equal to the current cost of funds borrowed by Mark VII.
(e) All customer credit extended must have the prior written
approval of the Mark VII accounting office in Indianapolis. Any bad
debt resulting from unapproved credit shall be charged in full against
the bonus accrual of Executive.
(f) As to any transportation service requiring utilization of
Mark VII operated equipment (including power units or refrigerated
trailers but excluding dry vans), for each quarter in which weekly net
operating profit from the utilization of Mark VII equipment is less
than $300 per unit a week the 25% bonus will be reduced to 15%.
(g) All accounting issues or questions shall be barred on the
anniversary date of any transaction in question, subject to no further
examination or question thereafter. Any dispute as to any matter
related to this contract or the business to which it is related,
between Executive and Mark VII, shall be resolved by arbitration
rather than judicial proceedings.
(h) In any year in which the 25% pre-tax bonus of Executive
attains the sum of $800,000, the pre-tax profit of "Big Dog
Enterprises", a trade name assigned to Dave Hursey and that of Bill
Reed of Park City, Utah, may be excluded from the calculation of the
pre-tax profit bonus of Executive to the extent which would reduce the
bonus to $800,000 but not further.
In each year pre-tax profit shall be reduced by the amount of the
following items:
(i) All charges of Employer to any affiliated company for
services rendered, said services to be charged at cost;
(j) Any gain on the sale, casualty or other disposition of any
capital asset of the Employer;
(k) Any other income which was not the result of ordinary
operations of the profit center or business unit.
The Board of Directors of Employer shall make the sole and final
determination of what constitutes "pre-tax profit" as defined above.
3.03 Car Allowance. Executive shall receive $500 a month as a
car allowance, plus the costs he incurs in operating his private
automobile with respect to insurance, fuel, oil, filters, hoses,
belts, license tags, one set of tires every four years and sales tax
upon acquisition.
3.04 Fringe Benefits/Vacation. Executive shall receive standard
Mark VII fringe benefits, including three (3) weeks of vacation with
pay each year.
3.05 Reimbursement of Expenses. Employer shall reimburse
Executive for ordinary, necessary and reasonable business expenses
incurred to conduct or promote Employer's business, including travel
and entertainment, provided Executive submits an itemization of such
expenses and supporting documentation therefor, all according to
Employer's generally applicable procedures.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of
his employment by Employer, he has, in the past, used and acquired
and, in the future, will use and acquire knowledge and information
used by Employer in its business and which is not generally available
to the public or to persons in the transportation industry, including,
without limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer software
programs; test results; data; manuals; methods of accounting;
financial information; devices; systems; procedures; manuals; internal
reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing
and contemplated products and service, except such information known
by Executive prior to his employment by Employer ("Confidential
Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation set forth
herein, Executive agrees that, during the term of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not,
directly or indirectly, divulge or disclose to any person, for any
purpose, for a period of three (3) years after the termination of this
Agreement, any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then
only if use by such person is for Employer's benefit.
4.02 Covenant Against Competition. During the term of this
Agreement and subject to the provisions of section 6.05 below, for a
period of three years after the termination of this Agreement,
Executive shall not have any interest, or be engaged by, directly or
indirectly, any business or enterprise that is in the business of
providing motor freight transportation services or arranging for the
transportation of goods, including any business that acts as a
licensed property broker or shipper's agent, which is directly
competitive with any aspect of the business Employer now conducts or
which Employer is conducting or is in the process of developing at the
time of any competitive actions by Executive ("Prohibited Activity")
except to the extent provided in section 2. For purposes of this
Section 4.02, Executive shall be deemed to have an "interest in or be
engaged by a business or enterprise" if Executive acts (a)
individually, (b) as a partner, officer, director, shareholder,
employee, associate, agent or owner of any entity or (c) as an
advisor, consultant, lender or other person related, directly or
indirectly, to any business or entity that is engaging in, or is
planning to engage in, any Prohibited Activity. Ownership of less
than five percent (5%) of the outstanding capital stock of a publicly
traded entity that engages in any Prohibited Activity shall not be a
violation of this Section 4.02.
4.03 Employment of Other Employees by Executive. During the term
of this Agreement and, subject to the provisions of section 6.05
below, for a period of three (3) years after the termination of this
Agreement , Executive shall not directly or indirectly solicit for
employment, or employ, except on behalf of Employer, any person who
was an employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
4.04 Judicial Amendment. If a court of competent jurisdiction
determines any of the limitations contained in this Agreement are
unreasonable and may not be enforced as herein agreed, the parties
hereto expressly agree this Agreement shall be amended to delete all
limitations judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum limitations
such court finds to be reasonable under the circumstances.
4.05 Irreparable Injury. Executive acknowledges that his
abilities and the services he will provide to Employer are unique and
that his failure to perform his obligations under this Section 4 would
cause Employer irreparable harm and injury. Executive further
acknowledges that the only adequate remedy is one that would prevent
him from breaching the terms of Section 4. As a result, Executive and
Employer agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by
Executive. Nothing contained in this Section 4.05 shall prohibit
Employer from seeking and obtaining any other remedy, including
monetary damages, to which it may be entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall terminate
upon the first of the following events to occur:
a) Subject to the provisions of Paragraphs 5.02(c) and 6.02,
the term of employment hereunder shall lapse at such time as either
the Employer or Executive provides the other with 30 days notice of
termination;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined
in section 5.02 (a) below, effective on the day Executive receives
notice from Employer that it is exercising its option granted by this
Section to terminate this Agreement;
d) On the day Executive receives written notice from Employer
that Executive's employment is being terminated for cause, as defined
in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from
Employer specifying any act of insubordination or failure to comply
with any instructions of Employer's Board of Directors or any act or
omission that Employer's Board of Directors believes, in good faith,
materially does, or may, adversely affect Employer's business or
operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
f) On the date Executive resigns or, at the Employer's option,
the date Executive commits any act that is a material breach of this
Agreement;
g) At Executive's option, on the date Employer commits any act
that is a material breach of this Agreement; or
h) At Employer's option, upon fulfilling the "executive buyout"
provisions of Section 5.02(c) below.
5.02 Definitions. For purposes of Section 5.01 the following
definitions shall apply:
a) "Disability" means Executive's inability, because of
sickness or other incapacity, whether physical or mental, to perform
his duties under this Agreement for a period in excess of ninety (90)
substantially consecutive days, as professionally determined by two
medical doctors licensed to practice medicine, one of which is
selected by the Employer and one of which is selected by Executive.
In the event the doctors should disagree as to whether Executive is
disabled, they shall select a third licensed medical doctor to make
such termination which shall be binding on the parties hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a failure
resulting from Executive's incapacity to do so because of physical or
mental illness, (ii) a willful act by Executive that constitutes gross
misconduct and which is materially injurious to Employer, (iii)
Executive's commitment of any act of dishonesty toward Employer, theft
of corporate property or unethical business conduct or (iv)
Executive's conviction of any felony involving dishonest, or immoral
conduct.
c) "Executive Buyout" includes:
1. The right of Employer to terminate this agreement with
no further payment of compensation to Executive in the event the
profit centers assigned to the management responsibility of
Executive fail, collectively, to earn pre-tax profit (as defined
in Paragraph 3.02 above) of $250,000 in 1995 or any calendar year
thereafter.
2. Following any calendar year in which the profit centers
assigned to Executive collectively earn pre-tax profit of
$250,000 or more, Employer may terminate this Agreement by paying
Executive an amount equal to three times his previous year's W-2
reported income from Employer, but in no event less than One
Million Four Hundred Thousand Dollars ($1,400,000). Such payment
shall constitute liquidated damages which Executive hereby agrees
to accept as his exclusive remedy for any breach of the
obligations of the Employer hereunder hereby waiving any right to
punitive or exemplary damages.
3. In the event of termination by Employer subsequent to
any year in which profit centers assigned to Executive were,
collectively profitable but in which pre-tax profit of at least
$250,000 was not attained, Employer may elect to extend
provisions of Section 4 hereof pursuant to Paragraph 6.05(b)
below only by making advance annual payments to Executive in the
amount of Three Hundred Thousand Dollars ($300,000) for the first
year, Three Hundred Thousand Dollars ($300,000) for the second
year and at Fifty Thousand Dollars ($50,000) for the third year.
4. Employer retains the unilateral right to sell or
terminate any business unit assigned to the management of
Executive with no further approval or subsequent right of
Executive to pre-tax profit bonus beyond the date of sale or
termination. Provided, however, that the sale or termination of
the a unit devoted to providing service to United Parcel Service
or its subsidiaries will require Employer to provide Executive
with the benefit of the buyout provisions of this subparagraph
(c).
5. Pre-tax profits earned by Dave Hursey, "Big Dog" and Bill
Reed of Park City, Utah shall be excluded from the calculation of
the $250,000 pre-tax profit standard hereof.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death, or Disability. Upon the
termination of this Agreement pursuant to Section 5.01 (b) (death), or
Section 5.01 (c) (disability), Employer shall pay, or cause to be
paid, to Executive, his designated beneficiary or his legal
representative,
a) the Base Salary and fringe benefits through the period ending
twelve (12) months after occurrence of the event causing termination;
and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to
Executive.
6.02 Payments Upon Termination for Cause, Insubordination,
Resignation or Breach by Executive. Upon termination of this
Agreement pursuant to Section 5.01 (d) (cause), Section 5.01 (e)
(insubordination), or Section 5.01 (f) (resignation or breach by
Executive), Employer shall pay, or cause to be paid, to Executive,
a) the Base Salary and fringe benefits for the period ending on
the date this Agreement is terminated pursuant to the appropriate
subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to
Executive.
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g) (Employer's
breach), Employer shall pay to Executive all of the compensation set
forth in Section 3, including bonus pursuant to Section 3.02, for
twelve months subsequent to the breach. All post-employment
compensation paid by Employer under the terms of this Section 6 shall
be calculated in the manner set forth in Section 3 hereof and shall
constitute liquidated damages which Executive hereby agrees to accept
as his exclusive remedy for any breach of the obligations of the
Employer hereunder hereby waiving any right to punitive or exemplary
damages.
6.04 Payment of Amounts Due Upon Termination and Mitigation. If
Executive is entitled to payment of Base Salary, bonus, fringe
benefits or business expenses upon termination of this Agreement,
Employer shall make said payments within the ordinary course of its
business and pursuant to the terms hereof. All such payments shall be
reduced by the amount of compensation earned by Executive from any
other employment.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) All of the provisions of Section 4 (confidentiality,
noncompete and nonemployment of other employees ) of this Agreement
shall survive termination hereof pursuant to Section 5.01 (d) (cause),
Section 5.01(e) (insubordination) or Section 5.01 (f) (resignation)
even though the remaining terms and provisions of this Agreement shall
be void, including the terms of Section 3 (compensation).
b) Subject to Section 5.02(c), upon termination of this Agreement
pursuant to Section 5.01 (a) (termination), Employer may elect to
continue the obligations of Executive set forth in Section 4
(confidentiality, noncompete and nonemployment of other employees) for
so long as the Employer continues to provide the current base salary
set forth in Section 3.01 and termination payments of Section 5.02
(c), but not to exceed three years subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability) the
provisions of Section 4 (confidentiality, noncompete and nonemployment
of other employees) shall survive for one year thereafter.
d) Upon termination of this Agreement pursuant to Section 5.01
(g)(Employer breach), all of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other employees)
shall be void.
6.06 Provisions Void Upon Termination. Except as specifically
provided herein to the contrary, all terms and provisions of this
Agreement shall be void upon any termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not, directly or
indirectly, have any interest in any business which is a supplier of
Employer without the express written consent of Employer's Board of
Directors. Such interest shall include, without limitation, an
interest as a partner, officer, director, stockholder, advisor or
employee of or lender to such a supplier. An ownership interest of
less than five percent (5%) in a supplier whose stock is publicly held
or regularly traded shall not be a violation of this Section 7.
Executive herewith agrees to answer and execute an annual
disclosure form "Questionnaire for Directors and Executive Officers of
Mark VII, Inc." providing the same information that is required of all
other Directors and executive officers of Mark VII directed to the
purpose of enabling Employer to assess and provide disclosure of
matters required of publicly held companies.
8. Indemnification of Executive
The Employer will indemnify Executive and hold him harmless
(including reasonable attorney fees and expenses) to the fullest
extent now or hereafter permitted by law in connection with any actual
or threatened civil, criminal, administrative or investigative action,
suit or proceeding in which Executive is a party or witness as a
result of his employment with the Employer. This indemnification
shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal office shall be
located at Scottsdale, Arizona, or at such other location where
Employer and Executive shall mutually agree.
9.02 Assignment. Neither party may assign any of the rights or
obligations under this Agreement without the express written consent
of the other party. For purposes of the foregoing sentence, the term
"assign" shall not include an assignment of this Agreement by written
agreement or by operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties' heirs, successors and assigns, to
the extent allowed herein.
9.04 Severability. The provisions of this Agreement are severable.
The invalidity or unenforceability of any one or more of the
provisions hereof shall not affect the validity or enforceability of
any other part of this Agreement.
9.05 Waiver. Waiver of any provision of this Agreement or any
breach thereof by either party shall not be construed to be a waiver
of any other provision or any subsequent breach of this Agreement.
9.06 Notices. Any notice or other communication required or
permitted herein shall be sufficiently given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid,
addressed to:
Employer: Jupiter Transportation, Inc.
c/o Mark VII Transportation Co., Inc.
201 South Emerson Avenue
Suite 130
Greenwood, Indiana 46143
cc: James T. Graves, Vice Chairman and General Counsel
Mark VII, Inc.
5310 St. Joseph Avenue
St. Joseph, Missouri 64502
Executive: Robert E. Liss
11442 E. Bella Vista
Scottsdale, Arizona 85350
or such other address as shall be furnished in writing by any such
party. Any notice sent by the above-described method shall be deemed
to have been received on the date personally delivered or so mailed.
Notices sent by any other method shall be deemed to have been received
when actually received by the addressee or its or his authorized
agent.
9.06 Applicable Law. Except to the extent preempted by federal
law, this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Arizona, without
considering its laws or rules related to choice of law.
9.07 Jurisdiction and Venue. Subject to the arbitration provision
in section 9.11 below, the parties hereby consent, and waive any
objection, to the jurisdiction of either the State or Federal Courts
of Arizona over the person of either party for purposes of any action
brought under or as the result of a breach of this Agreement. The
parties agree that their execution of this Agreement constitutes doing
or conducting business within the State of Arizona. The parties
further consent that venue of any action brought under or as the
result of a breach of this Agreement shall be proper in either of the
above named courts and they each waive any objection thereto.
9.08 Ownership and Return of Documents and Objects. Every plan,
drawing, blueprint, flowchart, listing of source or object code,
notation, record, diary, memorandum, worksheet, manual or other
document, magnetic media and every physical object created or acquired
by Executive as part of his employment by Employer, or which relates
to any aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall, immediately upon
Employer's request or upon termination of this Agreement for any
reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all
documents and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer then in
Executive's possession.
9.09 Attorney's Fees. Subject to the arbitration provision in
Section 9.11 below, if either party brings an action to enforce the
terms hereof, the prevailing party in such action, on trial or appeal,
shall be entitled to recover its reasonable attorney's fees, costs and
expenses to be paid by the losing party as fixed by the court.
9.10 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
JUPITER TRANSPORTATION, INC.
By: /s/ R.C. Matney
-----------------------
R.C. Matney, Chairman
/s/ Robert E. Liss
-----------------------
Robert E. Liss, in his individual capacity
(Executive)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS AGREEMENT, dated this first day of August, 1992, is made by
and among JAMES T. GRAVES, a resident of the State of Missouri
("Executive"); MISSOURI-NEBRASKA EXPRESS, INC., an Iowa corporation
("Employer") and MNX INCORPORATED, a Missouri corporation (" MNX").
RECITALS
A. Employer and the subsidiaries of MNX are engaged in the
business of freight transportation services, both providing and
arranging transportation of goods.
B. Executive desires to be employed by Employer as its
President and Employer desires to employ Executive in such capacity
under the terms set forth herein.
AGREEMENT
In consideration of the mutual promises, covenants and agreements
contained herein and other good and valuable consideration,
sufficiency of which is hereby acknowledged by Executive and Employer,
the parties agree as follows:
1. Employment and Term of Employment.
Employer hereby employs Executive and Executive hereby accepts
employment which Employer for the term commencing on the date hereof
and continuing for a period of five (5) years subsequent to the date
hereof , unless sooner terminated as provided in Section 5.
2. Duties and Authority.
2.01 Duties and Position of Executive. Executive shall undertake
and assume the responsibility for those duties that Employer's Board
of Directors shall, from time to time, assign to Executive.
Executive's principal duties as of the date of this Agreement shall be
and are those typically performed by the President of a company;
however, Employer may, for any reason whatsoever, reassign Executive's
duties to another person.
Executive has been elected as President of Employer; however,
nothing contained in this Agreement shall be interpreted to require
Employer's Board of Directors to elect Executive to any corporate
office or to prevent Employer's Board of Directors, in their sole
discretion and without cause, from removing Executive from an office
to which he may be elected.
Executive shall, at all times, faithfully and to the best of his
ability, experience and talents, perform the duties set forth herein
or to which Executive may, in the future, be assigned, always acting
solely in the best interests of the Employer.
2.02 Time Devoted to Employment. Executive shall devote his full
time and attention to performance of the above described assigned
employment duties; provided, however, he shall be allowed to engage in
the private practice of law for a limited number of clients on a basis
that will not interface or conflict with Executive responsibilities
under this Agreement. The Executive will not be involved in any
transportation ventures other than those of the Employer without the
advance written authorization of the Employer's Board of Directors
which will not be unreasonably withheld.
It is also understood that the Executive is not hereby precluded
from engaging in appropriate civic, charitable or religious activities
or from devoting a limited amount of time to private investments that
do not compete with the business of Employer.
In the event the Employer's Board of Directors shall reassign the
duties of the Executive as President to another person, the Executive
shall thereafter serve as Vice Chairman and General Counsel of MNX and
as a member of the Executive Committee of MNX, engaged in the
performance and management of legal services of Employer and MNX and
those specific projects which are assigned to the Executive and
which are consistent with his experience and competence.
3. Compensation.
During the term of this Agreement, Employer shall pay to
Executive the following compensation:
3.01 Base Salary. Executive shall be paid an initial base
salary of One Hundred Seventy Five Thousand and No/100 Dollars
($175,000) per year ("Base Salary"), payable in equal bi-weekly
installments on alternate Fridays. Employer's Board of Directors
shall have the complete discretion to increase or decrease Executive's
salary at any time; however, it shall not be reduced to less than the
original Base Salary. Executive shall be given equal consideration,
along with other members of senior executive management, for merit,
longevity, and cost of living salary increases.
3.02 Bonus. Commencing January 1, 1992, Executive shall
participate equally in any senior executive management bonus program
established by Employer.
3.03 Fringe Benefits. Executive shall receive all of the fringe
benefits Employer offers to other members of senior executive
management.
3.04 Reimbursement of Expenses. Employer shall reimburse
Executive for ordinary, necessary and reasonable business expenses
incurred to conduct or promote Employer's business, including travel
and entertainment, provided Executive submits an itemization of such
expenses and supporting documentation therefor, all according to
Employer's generally applicable procedures.
3.05 Stock Options. By separate document, Employer shall provide
Employee with an option to purchase 60,000 shares of Employer's common
stock, exercisable at not more than $8.25 per share, which shall vest
January 1, 1992, exercisable one year after vesting. All such options
shall lapse 10 years subsequent to vesting.
4. Nondisclosure and Noncompetition.
Executive hereby covenants and agrees as follows:
4.01 Confidentiality. Executive acknowledges that as a result of
his employment by Employer, he has, in the past, used and acquired
and, in the future, will use and acquire knowledge and information
used by Employer in its business and which is not generally available
to the public or to persons in the transportation industry, including,
without limitation, its future products, services, patents and
trademarks; designs; plans; specifications; models; computer software
programs; test results; data; manuals; methods of accounting;
financial information; devices; systems; procedures; manuals; internal
reports; lists of shippers and carriers; methods used for and
preferred by its customers; and the pricing structure of its existing
and contemplated products and service, except such information known
by Executive prior to his employment by Employer ("Confidential
Information"). As a material inducement to Employer to enter into
this Agreement, and to pay to Executive the compensation set forth
herein, Executive agrees that, during the term of this Agreement and
subject to the provisions of section 6.05 below, Executive shall not,
directly or indirectly, divulge or disclose to any person, for any
purpose, for a period of three (3) years after the termination of this
Agreement, any Confidential Information, except to those persons
authorized by Employer to receive Confidential Information and then
only if use by such person is for Employer's benefit.
4.02 Covenant Against Competition. During the term of this
Agreement and subject to the provisions of section 6.05 below, for a
period of three (3) years after the termination of this Agreement,
Executive shall not have any interest in or be engaged by any business
or enterprise that is in the business of providing motor freight
transportation services or arranging for the transportation of goods,
including any business that acts as a licensed property broker or
shipper's agent, which is directly competitive with any aspect of the
business Employer now conducts or which Employer is conducting or is
in the process of developing at the time of any competitive actions by
Executive ("Prohibited Activity") except to the extent provided in
section 2.02. For purposes of this Section 4.02, Executive shall be
deemed to have an "interest in or be engaged by a business or
enterprise" if Executive acts (a) individually, (b) as a partner,
officer, director, shareholder, employee, associate, agent or owner of
any entity or (c) as an advisor, consultant, lender or other person
related, directly or indirectly, to any business or entity that is
engaging in, or is planning to engage in, any Prohibited Activity.
Ownership of less than five percent (5%) of the outstanding capital
stock of a publicly traded entity that engages in any Prohibited
Activity shall not be a violation of this Section 4.02.
4.03 Employment of Other Employees by Executive. During the term
of this Agreement and, subject to the provisions of section 6.05
below, for a period of three (3) years after the termination of this
Agreement , Executive shall not directly or indirectly solicit for
employment, or employ, except on behalf of Employer, any person who
was an employee of Employer at any time during the six (6) months
preceding such solicitation or employment.
<PAGE>
4.04 Judicial Amendment. If a court of competent jurisdiction
determines any of the limitations contained in this Agreement are
unreasonable and may not be enforced as herein agreed, the parties
hereto expressly agree this Agreement shall be amended to delete all
limitations judicially determined to be unreasonable and to substitute
for those limitations found to be unreasonable the maximum limitations
such court finds to be reasonable under the circumstances.
4.05 Irreparable Injury. Executive acknowledges that his
abilities and the services he will provide to Employer are unique and
that his failure to perform his obligations under this Section 4 would
cause Employer irreparable harm and injury. Executive further
acknowledges that the only adequate remedy is one that would prevent
him from breaching the terms of Section 4. As a result, Executive and
Employer agree that Employer's remedies may include preliminary
injunction, temporary restraining order or other injunctive relief
against any threatened or continuing breach of this Section 4 by
Executive. Nothing contained in this Section 4.05 shall prohibit
Employer from seeking and obtaining any other remedy, including
monetary damages, to which it may be entitled.
5. Termination.
5.01 Events Causing Termination. This Agreement shall terminate
upon the first of the following events to occur:
a) At the end of five (5) years subsequent to the date hereof;
b) On the date of Executive's death;
c) At Employer's option, upon Executive's disability as defined
in section 5.02 (a) below, effective on the day Executive receives
notice from Employer that it is exercising its option granted by this
Section to terminate this Agreement;
d) On the day Executive receives written notice from Employer
that Executive's employment is being terminated for cause, as defined
in section 5.02 (b) below;
e) Fifteen (15) days after receipt by Executive of notice from
Employer specifying any act of insubordination or failure to comply
with any instructions of Employer's Board of Directors or any act or
omission that Employer's Board of Directors believes, in good faith,
materially does, or may, adversely affect Employer's business or
operations provided Executive fails to remedy or cease said acts
within said fifteen (15) day period;
f) On the date Executive resigns or, at the Company's option,
the date Executive commits any act that is a material breach of this
Agreement; and
g) At Executive's option, on the date Employer commits any act
that is a material breach of this Agreement.
<PAGE>
5.02 Definitions. For purposes of Section 5.01 the following
definitions shall apply:
a) "Disability" means Executive's inability, because of
sickness or other incapacity, whether physical or mental, to perform
his duties under this Agreement for a period in excess of one hundred
eighty (180) substantially consecutive days, as professionally
determined by two medical doctors licensed to practice medicine, one
of which is selected by the Employer and one of which is selected by
the Executive. In the event the doctors should disagree as to whether
the Executive is disabled, they shall select a third licensed medical
doctor to make such termination which shall be binding on the parties
hereto.
b) "Cause" means (i) a willful failure by Executive to
substantially perform his duties hereunder, other than a failure
resulting from Executive's incapacity to do so because of physical or
mental illness, (ii) a willful act by Executive that constitutes gross
misconduct and which is materially injurious to Employer, (iii)
Executive's commitment of any act of dishonesty toward Employer, theft
of corporate property or unethical business conduct or (iv)
Executive's conviction of any felony involving dishonest, or immoral
conduct.
6. Payments Upon Termination.
6.01 Payments Upon Executive's Death or Disability. Upon the
termination of this Agreement pursuant to Section 5.01 (b) (death) or
Section 5.01 (c) (disability), Employer shall pay, or cause to be
paid, to Executive, his designated beneficiary or his legal
representative,
a) the Base Salary and fringe benefits through the period
ending twelve (12) months after occurrence of the event causing
termination; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination of this Agreement.
Employer shall not be obligated to make any other payments to
Executive.
6.02 Payments Upon Expiration of Term or Termination, for Cause,
Insubordination, Resignation or Breach by Executive. Upon termination
of this Agreement pursuant to Section 5.01 (a) (lapse of term),
Section 5.01 (d) (cause), Section 5.01 (e) (insubordination), or
Section 5.01 (f) (resignation or breach by Executive), Employer shall
pay, or cause to be paid, to Executive,
a) the Base Salary and fringe benefits for the period ending on
the date this Agreement is terminated pursuant to the appropriate
subsection of Section 5.01; and
b) all necessary, ordinary, and reasonable business expenses
incurred by Executive prior to termination hereof.
Employer shall not be obligated to make any other payments to
Executive.<PAGE>
6.03 Payments Upon Termination for Breach by Employer. Upon
termination of this Agreement pursuant to Section 5.01 (g) (Employer's
breach), Employer shall pay to Executive all of the compensation set
forth in Section 3 thru the period ending on the fifth anniversary of
this Agreement . All compensation paid by Employer under the terms of
this Section 6.03 shall be paid in the manner set forth in Section 3.
6.04 Payment of Amounts Due Upon Termination and Mitigation. If
Executive is entitled to payment of Base Salary, fringe benefits or
business expenses upon termination of this Agreement, Employer shall
make said payments within the ordinary course of its business and
pursuant to the terms hereof. All such payments shall be reduced by
the amount of compensation earned by the Executive from other
employment.
6.05 Effect of Termination on Nondisclosure, Noncompete and
Nonsolicitation Provisions.
a) All of the provisions of Section 4(confidentiality,
noncompete and nonemployment of other employees ) of this Agreement
shall survive termination hereof pursuant to Section 5.01 (d) (cause),
Section 5.01 (e) (insubordination) or Section 5.01 (f) (resignation)
even though the remaining terms and provisions of this Agreement shall
be void, including the terms of Section 3(compensation).
b) Upon termination of this Agreement pursuant to Section 5.01
(a) (lapse of term) Employer may elect to continue the obligations of
Executive set forth in Section 4 (confidentiality noncompete and
nonemployment) for so long as the Employer continues to provide all
compensation set forth in Section 3, but not to exceed three years
subsequent to termination.
c) Upon termination pursuant to Section 5.01 (c) (disability)
the provisions of Section 4 (confidentiality, noncompete and
nonemployment of other employees) shall survive for one year
thereafter.
d) Upon termination of this Agreement pursuant to Section 5.01
(g) (Employer breach), all of the provisions of Section 4
(confidentiality, noncompete and nonemployment of other employees)
shall be void.
6.06 Provisions Void Upon Termination. Except as specifically
provided herein to the contrary, all terms and provisions of this
Agreement shall be void upon any termination hereof.
7. Conflict of Interest.
During the term of this Agreement, Executive shall not, directly
or indirectly, have any interest in any business which is a supplier
of Employer without the express written consent of Employer's Board of
Directors. Such interest shall include, without limitation, an
interest as a partner, officer, director, stockholder, advisor or
employee of or lender to such a supplier. An ownership interest of
less than five percent (5%) in a supplier whose stock is publicly held
or regularly traded shall not be a violation of this Section 7.
<PAGE>
8. Indemnification of Executive
The Employer and MNX will indemnify the Executive and hold him
harmless (including reasonable attorney fees and expenses) to the
fullest extent now or hereafter permitted by law in connection with
any actual or threatened civil, criminal, administrative or
investigative action, suit or proceeding in which the Executive is a
party or witness as a result of his employment with the Employer.
This indemnification shall survive the termination of this Agreement.
9. General Provisions.
9.01 Location of Employment. Executive's principal office shall
be located at St. Joseph, Missouri, or at such other location where
Employer and Executive shall mutually agree.
9.02 Assignment. Neither party may assign any of the rights or
obligations under this Agreement without the express written consent
of the other party. For purposes of the foregoing sentence, the term
"assign" shall not include an assignment of this Agreement by written
agreement or by operation of law to any of Employer's wholly owned
subsidiaries.
9.03 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties' heirs, successors and assigns, to
the extent allowed herein.
9.04 Severability. The provisions of this Agreement are
severable. The invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity or enforceability
of any other part of this Agreement.
9.05 Waiver. Waiver of any provision of this Agreement or any
breach thereof by either party shall not be construed to be a waiver
of any other provision or any subsequent breach of this Agreement.
<PAGE>
9.06 Notices. Any notice or other communication required or
permitted herein shall be sufficiently given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid,
addressed to:
Employer: MNX Incorporated
c/o Missouri-Nebraska Express Inc.
P.O. Box 939
5310 St. Joseph Avenue
St. Joseph, Missouri 64505
Attention: Chairman of the Board
cc: Randy Sunberg
Shook, Hardy & Bacon
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Executive: James T. Graves
One Lakeland Drive
St. Joseph, MO 64506
or such other address as shall be furnished in writing by any such
party. Any notice sent by the above-described method shall be deemed
to have been received on the date personally delivered or so mailed.
Notices sent by any other method shall be deemed to have been received
when actually received by the addressee or its or his authorized
agent.
9.07 Applicable Law. Except to the extent preempted by federal
law, this Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Missouri, without
considering its laws or rules related to choice of law.
9.08 Jurisdiction and Venue. Subject to the arbitration
provision in section 9.11 below, the parties hereby consent, and waive
any objection, to the jurisdiction of either the Circuit Court of
Buchanan County, Missouri or the United States District Court for the
Western District of Missouri over the person of either party for
purposes of any action brought under or as the result of a breach of
this Agreement. The parties agree that their execution of this
Agreement constitutes doing or conducting business within the State of
Missouri. The parties further consent that venue of any action
brought under or as the result of a breach of this Agreement shall be
proper in either of the above named courts and they each waive any
objection thereto.
<PAGE>
9.09 Ownership and Return of Documents and Objects. Every plan,
drawing, blueprint, flowchart, listing of source or object code,
notation, record, diary, memorandum, worksheet, manual or other
document, magnetic media and every physical object created or acquired
by Executive as part of his employment by Employer, or which relates
to any aspect of Employer's business, is and shall be the sole and
exclusive property of Employer. Executive shall, immediately upon
Employer's request or upon termination of this Agreement for any
reason, deliver to Employer each and every original, copy, complete or
partial reproduction, abstract or summary, however reproduced, of all
documents and all original and complete or partial reproductions of
all magnetic media or physical objects owned by Employer then in
Executive's possession.
9.10 Attorney's Fees. Subject to the arbitration provision in
Section 9.11 below, if either party brings an action to enforce the
terms hereof, the prevailing party in such action, on trail or appeal,
shall be entitled to its reasonable attorney's fees, costs and
expenses to be paid by the losing party as fixed by the court.
9.11 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgement upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
9.12 Guaranty of Performance. Upon consummation of this
Agreement, by and among the Executive, Employer, and MNX, MNX does
hereby guarantee the performance of Employer, its successor and
assigns pursuant to the terms and conditions of this Agreement. In
consideration of MNX's guarantee as described above, the Employer and
Executive hereby agree that MNX will have the option, at its sole
discretion, to enforce the provisions of this Agreement. If MNX
satisfies Employer's obligations under the terms of this Agreement,
MNX shall have all of the rights Employer would have had hereunder
absent its breach of this Agreement.
<PAGE>
WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
MISSOURI-NEBRASKA EXPRESS, INC.
By: /s/ J. Michael Head
----------------------------------
(Employer)
/s/ James. T. Graves
----------------------------------
James T. Graves, in his individual
capacity
(Executive)
MNX INCORPORATED
a Missouri corporation
By: /s/ R. C. Matney
----------------------------------
(MNX)
