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EXHIBIT 10.2
FRITZ COMPANIES, INC.
EMPLOYMENT AND NON-COMPETE AGREEMENT
This Agreement is entered into this 9th day of November, 2000 by and
between FRITZ COMPANIES, INC., a Delaware Corporation ("Fritz") and GRAHAM R.F.
NAPIER ("NAPIER").
Whereas NAPIER has certain knowledge and skills in the management of
operational functions and wishes to be employed by Fritz; and
Whereas Fritz desires to employ NAPIER in its business;
Wherefore, Fritz and NAPIER in consideration of the covenants contained
herein agree as follows:
1. Fritz shall employ NAPIER as of November 10, 2000 in the position of
President and Chief Operating Officer (with job functions and
responsibilities as specified in Exhibit A hereto) in the San Francisco
Bay Area reporting to the Chairman of the Board of Fritz Companies, Inc.
2. Fritz shall compensate NAPIER for such employment as follows:
a. Twenty-Nine Thousand One Hundred Sixty-Six Dollars and
Sixty-Seven Cents ($29,166.67) gross salary per month;
b. Effective November 10, 2000, a grant of two hundred seventy-five
thousand (275,000) non-qualified stock options in lieu of annual
100% cash bonus target under the Senior Management Bonus Plan
for FY2001-FY2003, such options to vest one-thirty-sixth (1/36)
per month until fully vested after three years. The exercise
price of these options will be based on the closing price of the
Company's common stock on the NASDAQ National Market on the
effective date of such grant;
c. Annual grants effective each June 1, commencing June 1, 2001 of
non-qualified stock options, based on NAPIER's performance
against specific objectives and in the sole discretion of the
Compensation Committee of the Board of Directors, in a quantity
up to a target of seven times then base salary divided by the
closing price of the Company's common stock on the NASDAQ
National Market on the effective date of each such grant.
Fifty-five thousand (55,000) of previously awarded options shall
be deemed attributable to fy01 and beyond and shall reduce any
stock option grants that would otherwise be made to NAPIER
during fy01 and beyond until the fifty-five thousand (55,000)
stock options have been exhausted;
d. Financial Planning and Tax Preparation services provided by a
provider selected by Fritz or, at NAPIER's election,
reimbursement of such services by a provider selected by NAPIER
in an amount not to exceed Seven Thousand Five Hundred Dollars
($7,500.00) per calendar year.
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FRITZ COMPANIES, INC. FORM 10-Q
e. Monthly membership dues in either the Olympic Club, San
Francisco or the Metropolitan Club, San Francisco whichever
NAPIER is initiated into first.
f. Other Fringe Benefits as provided to all Fritz executives on the
Operating Committee;
g. Four weeks paid vacation per year;
h. Reimbursement of reasonable business related expenses in
accordance with the Fritz travel and entertainment policy.
Travel will be First Class or Business Class if available.
i. The Company will reimburse NAPIER for any legal fees to review
this employment agreement. The amount not to exceed Three
Thousand Dollars ($3,000.00).
3. This Agreement shall have a term expiring on November 10, 2003. All
terms herein shall remain unchanged for the duration of the term of this
Agreement unless changed or modified by a written document signed by
NAPIER and the Chairman of the Board of Directors of Fritz. At or prior
to the expiration date of this Agreement, NAPIER and the Company shall
enter into negotiations as to any renewal of this Agreement.
4. Fritz may terminate this agreement with no further liability or
obligation hereunder for "cause". For purposes hereof, "cause" shall
mean misconduct including, but not limited to:
i. Conviction of any felony or any crime involving moral turpitude
or dishonesty;
ii. Participation in a fraud or act of dishonesty against the
company;
iii. Willful breach of the company's policies;
iv. Intentional damage to the company's property;
v. Material breach of this agreement;
vi. Material failure to meet the mutually agreed upon performance
objectives set at the commencement of each fiscal year through
the normal management by objectives process as established by
the company; or
vii. Conduct that in the good faith and reasonable judgement of the
Board of Directors of Fritz demonstrates gross unfitness to
perform your job functions.
5. If, as a result of a change of control, NAPIER's employment hereunder is
terminated other than for cause, or in the event that NAPIER elects to
resign his employment therefor the Change in Control Agreement
previously entered into shall prevail.
6. NAPIER shall not engage in any activity whatsoever which conflicts with
the interests of Fritz or with NAPIER's duties as an employee of Fritz.
NAPIER understands that NAPIER's employment is on a full-time basis, and
NAPIER agrees not to engage in any other employment or business-related
activity, other than serving as a member of the Board of Directors of no
more than two corporations and none of which are competitors or vendors
of Fritz, without the prior written consent of the Chairman of the Board
of Fritz. NAPIER hereby represents that NAPIER has no agreements
with, or obligations
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FRITZ COMPANIES, INC. FORM 10-Q
to, any person or entity which conflicts, or may conflict, with the
interests of Fritz or with NAPIER's duties as an employee of Fritz.
7. NAPIER understands and acknowledges that during NAPIER's employment with
Fritz, NAPIER has been and shall be exposed to Confidential Information
(defined below), all of which is proprietary and which rightfully
belongs to Fritz. NAPIER shall hold in a fiduciary capacity for the
benefit of Fritz all such Confidential Information obtained by NAPIER
during NAPIER's employment with Fritz and shall not, directly or
indirectly, at any time, either during or after NAPIER's employment with
Fritz, without Fritz' prior written consent, use any of such
Confidential Information or disclose any of such Confidential
Information to any individual or entity other than authorized employees
of Fritz except as required in the performance of NAPIER's duties for
Fritz. NAPIER shall take all reasonable steps to safeguard such
Confidential Information and to protect such Confidential Information
against disclosure, misuse, loss or theft. The term "Confidential
Information" shall mean any information not generally known in the
relevant trade or industry, which was obtained from Fritz or which was
learned, discovered, developed, conceived, originated or prepared during
or as result of the performance of any services by NAPIER as an employee
of Fritz or on behalf of Fritz, including, without limitation,
information concerning the provision of freight forwarding services such
as the cost of such services, price lists, marketing programs or plans,
lists of customers, potential customers, dealers and contacts and other
compilations of confidential information.
8. Subject to the non-competition and non-solicitation covenants below,
upon termination of NAPIER's employment other than for expiration of
this contract, disability, cause or a change in control, Fritz shall pay
NAPIER, as NAPIER's sole remedy for such termination:
a. Salary continuation for a period of eighteen months in an amount
equal to NAPIER's monthly base salary in effect prior to the
salary continuation period and paid on the Company's normal pay
days; and
b. Restricted stock and stock options previously granted but not
yet vested shall continue to vest during the salary continuation
period. All restricted stock and stock options previously
granted but not yet vested as of the completion of the salary
continuation period shall vest at the completion of the salary
continuation period. NAPIER shall have ninety (90) days after
the completion of the salary continuation period to exercise
stock options. Any stock options not exercised within ninety
(90) days after the completion of the salary continuation period
shall lapse; and
c. Continuation of group health and financial planning benefits
during the salary continuation period.
d. There shall be no vacation or personal day accrual during the
salary continuation period. In consideration of such payment,
for the salary continuation period of eighteen months
("Non-Competition Period") the following shall apply:
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FRITZ COMPANIES, INC. FORM 10-Q
(1) during the term hereof and for the Non-Competition period
after NAPIER ceases to be employed by Fritz, NAPIER shall
not, directly or indirectly, either for himself or any
other person, own, manage, control, participate in, invest
in, permit his name to be used by, act as consultant or
advisor to, render services for (whether alone or in
association with any individual, entity, or other business
organization), or otherwise assist in any manner any
individual or entity that engages in or owns, invests in,
manages or controls any venture for enterprise engaged in
the provision of services that are similar to, or in
competition with, or may materially detract from, any
services provided by Fritz or as to which Fritz had firm
plans as of the date NAPIER ceased to be employed by
Fritz. Nothing herein shall prohibit NAPIER from being a
passive owner of not more than two percent (2%) of the
outstanding stock of any class of securities of a
corporation engaged in such business which is publicly
traded, so long as he has no active participation in the
business of such corporation.
(2) during the Non-Competition Period, NAPIER shall not,
directly or indirectly, (i) induce or attempt to induce or
aid another in inducing any employee of Fritz to leave the
employ of Fritz, or in any way interfere with the
relationship between Fritz and any employee of Fritz, or
(ii) induce or attempt to induce any customer of Fritz to
cease doing business with Fritz, or in any way interfere
with the relationship between Fritz and any customer or
other business relation of Fritz.
(3) during the Non-Competition Period, NAPIER shall not,
directly or indirectly employ any employee of Fritz who
voluntarily terminates such employment until three months
have passed following termination of such employment.
(4) in the event a court shall refuse to enforce the
agreements contained herein, either because of the scope
of the geographical area specified in this Agreement or
the duration of the restrictions, the parties hereto
expressly confirm their intention that the geographical
areas covered hereby and the time period of the
restrictions be deemed automatically reduced to the
minimum extent necessary to permit enforcement.
9. Each of the parties hereto acknowledges and agrees that the extent of
damages to Fritz in the event of a breach by NAPIER of this Agreement
would be impossible to ascertain and there is and will be available to
Fritz no adequate remedy at law to compensate it in the event of such a
breach. Consequently, NAPIER, agrees that, in the event that he breaches
any of such covenants, Fritz shall be entitled, in addition to any other
relief to which it may be entitled including without limitation money
damages, to enforce any or all of such covenants by injunctive or other
equitable relief ordered by any court of competent jurisdiction.
10. No agreements, representations or understandings (whether oral or
written and whether express or implied) which are not expressly set
forth in this Agreement have been made
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FRITZ COMPANIES, INC. FORM 10-Q
or entered into by either party with respect to the subject matter
hereof except for the Change of Control Agreement previously entered
into. This Agreement shall supercede any prior employment agreements
between NAPIER and Fritz other than the Change of Control Agreement
previously entered into.
11. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
12. To ensure rapid and economical resolution of any disputes which may
arise under this agreement, NAPIER and Fritz agree that any and all
disputes or controversies of any nature whatsoever, regarding the
interpretation, performance, enforcement or breach of this agreement
shall be resolved by confidential, final and binding arbitration (rather
than trial by jury or court or resolution in any other forum) under the
then existing rules of Judicial Arbitration and Mediation Services
("JAMS") in San Francisco, California. In the event that JAMS ceases to
exist as an arbitration service, any such matter shall be resolved by
confidential, final and binding arbitration under the then existing
rules of the American Arbitration Association in San Francisco,
California. The prevailing party in the arbitration shall be entitled to
recover his or its attorneys' fees and costs.
FRITZ COMPANIES, INC. /s/ GRAHAM R. F. NAPIER
----------------------------------------- -----------------------------------
By: /s/ Lynn C. Fritz
Title: Chairman of the Board of Directors
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