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EXHIBIT 4.2
MANAGEMENT SERVICES AGREEMENT
MADE THIS 1ST DAY OF SEPTEMBER 2000
PARTIES:
1. ELITE LOGISTICS, INC. AND SUBSIDIARIES (ELITE), AND;
2. JOSEPH D SMITH (MANAGER) (LOCATED IN FREEPORT, TEXAS OR OTHER LOCATION)
BACKGROUND:
1. ELITE wishes to retain the services of MANAGER to provide management
services in accordance with the Position Specification attached hereto.
2. MANAGER agrees to render such services to ELITE subject to the terms and
conditions of this Agreement.
3. The mission of ELITE as outlined in its business plan is as follows:
"Elite will harness the power of wireless communications and global
positioning technology to improve the security of life and property and
the efficiency of our clients' business by providing best of breed
monitoring, tracking and information systems for motor vehicles and other
mobile and fixed assets."
4. Pursuant to this Management Services Agreement MANAGER will assist ELITE
to fulfill its business plan and accomplish its mission.
DECLARATION
I, MANAGER declare that I have read and fully understand the conditions of
employment detailed in the attached Management Services Agreement and accept
them fully.
SIGNED BY MANAGER SIGNED FOR AND ON BEHALF OF
ELITE LOGISTICS, INC.
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By:
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Title: Board of Director
Witness: Witness:
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Full Name Full Name
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Address Address
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Occupation Occupation
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1 DEFINITIONS:
ELITE GROUP Means ELITE Logistics Services, Inc. and all
subsidiary and affiliate companies in which ELITE
may have an equity interest from time to time.
THE BOARD Means the Board of Directors of ELITE.
THE BUSINESS PLAN Means the plan for the operation of ELITE's
business as approved by the Board and amended by
the Board from time to time.
CONFIDENTIAL INFORMATION Means all information that is confidential to and
the property of ELITE and the ELITE Group whether
in written, electronic or other form or retained in
the mind of the MANAGER. Without limiting the
generality of the forgoing, it includes all and any
information relating to the business, business
plans, affairs, policies, processes, intellectual
property (including without limitation software
products, source codes, designs, specifications,
drawings, technical information, know how, trade
secrets, technical and scientific research,
copyright, patents and patent applications),
documents, costing, pricing methods, operations,
finances, strategic relationships, customers,
product knowledge, quality standards, devices,
market research, past and present legal or
regulatory matters and all such similar information
of ELITE and the ELITE Group.
DOCUMENTS Means all memoranda, notes, specifications,
manuals, drawings, plans, design reports, records
and other material stored in written, audio, visual
or electronic or whatsoever form
INTELLECTUAL PROPERTY Means the right to use, copy, modify, market, or
license any software concept, design, source code,
or documentation. It also includes all rights to
any brand, patent, copyright, registered design,
trademark, distinguishing logos, trade secret or
any other intellectual property right belonging to
ELITE or Elite Group including any software,
systems or products discovered by MANAGER or by
ELITE. It also includes such other Industrial,
Intellectual and Contractual Property as may
further establish or reinforce the ELITE Group
rights in the ELITE software, systems and products.
MANAGEMENT SERVICES Means this agreement between the parties and any
AGREEMENT amendments thereto.
REQUIRED NOTICE OF Means the minimum period for notice of termination
TERMINATION set out in Schedule A.
REVIEW DATE Means the date for annual salary review as set out
in Schedule A.
TERRITORY Means the territories as set out in Schedule A.
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2. COMMENCEMENT DATE
2.1 This Agreement shall commence on the commencement date specified in
Schedule A.
3 MANAGER'S DUTIES
3.1 MANAGER shall perform the duties set out in the Position Specification
contained in Schedule B diligently and competently and in a professional
manner to the best of MANAGER'S ability for the benefit of ELITE. The
Chief Executive Officer or designated representative may from time to
time at their sole discretion as they deem appropriate assign to MANAGER
such other responsibilities and duties.
3.2 MANAGER shall work full-time (a minimum 40 hours per week) for ELITE.
MANAGER may act as a non-executive director or advisor for other
companies provided that MANAGER advises Elite of such other activities
and they do not, in the opinion of ELITE impair MANAGER'S ability to
fulfill this Agreement.
3.2 MANAGER shall prepare such business plans, forecasts, activity reports,
financial reports, and management reports as the Chief Executive Officer
or designated representative may request. MANAGER shall inform the Chief
Executive Officer or designated representative of important developments
including without limitation:
o Information about competitors, their products and prices.
o Comments on ELITE' products from actual and prospective customers.
o Opportunities for further product development or for new products.
o Any other market intelligence.
3.3 MANAGER acknowledges receipt of a copy of the Employee Handbook/Company
Policy Manual and has read understood and agreed to the same. MANAGER
agrees to abide by company policy and such other reasonable limitations
upon his scope of authority as may be established from time to time by
the Chief Executive Officer or designated representative. 3.4 MANAGER
shall comply with all the applicable laws and regulations in the
territory in performing his duties for ELITE.
4 SALARY AND SALARY REVIEWS
4.1 MANAGER shall receive the compensation package including the salary and
performance related cash bonuses detailed in Schedule A in the manner
detailed. Salary including cash bonuses shall be reviewed annually on the
Review Date.
5. GENERAL CONDITIONS
5.1 The general conditions of employment shall be as set out in the Employee
Handbook (copy attached at Schedule C) and as amended from time to time,
in Elite's sole discretion.
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6. EXPENSES.
6.1 ELITE shall reimburse MANAGER for reasonable business expenses
necessarily incurred in the performance of his duties in accordance with
ELITE travel and expenses policies and procedures that are in effect at
the time the expenses are incurred.
6.2 If ELITE provides MANAGER with a corporate credit card, MANAGER is
responsible for any personal charges incurred on the company credit card
and without limitation to any other remedy which may be available to
ELITE hereby grants to ELITE the right to offset such charges against any
and all amounts which may be due to MANAGER from ELITE. MANAGER shall
return such credit card to ELITE immediately upon request by ELITE and in
any event upon termination of this Agreement for whatever reason.
6.3 If ELITE provides MANAGER with a corporate phone card, MANAGER is
responsible for any personal charges incurred on the company phone card
and without limitation to any other remedy which may be available to
ELITE hereby grants to ELITE the right to offset such charges against any
and all amounts which may be due to MANAGER from ELITE. MANAGER shall
return such phone card to ELITE and desist from using such service
immediately upon request by ELITE and in any event upon termination of
this Agreement for whatever reason.
7. CONFIDENTIAL INFORMATION
7.1 Elite promises to provide MANAGER and MANAGER acknowledges, that by
virtue of MANAGER'S employment with ELITE, MANAGER will gain knowledge of
Confidential Information. MANAGER agrees and acknowledges that all such
Confidential Information is the sole and exclusive property of ELITE.
MANAGER covenants that the Confidential Information, and any other
information obtained by MANAGER in relation to the ELITE Group shall
during the currency of MANAGER'S employment and at all times thereafter,
be kept secret and confidential and except to the extent that any such
Confidential Information or other information shall be part of the public
domain (other than as a result of the breach by the MANAGER of this
Clause) such information shall not be disclosed other than as required by
law.
7.2 MANAGER will not disclose Confidential Information to such parties within
ELITE who MANAGER should reasonably expect to be excluded from receiving
such Confidential Information.
7.3 MANAGER further agrees to promptly deliver to ELITE upon termination of
this Agreement, or at any time that ELITE may so request, all software,
media memoranda, notes, records and other documents comprising
Confidential Information that he then possesses or has under his control.
7.4 The MANAGER shall not during the term of this Agreement or subsequently
directly or indirectly divulge to any person other than MANAGER'S
professional advisor(s) any of the terms of this Agreement.
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8. PROTECTION OF INTELLECTUAL PROPERTY
8.1 MANAGER acknowledges that all ELITE Group software, systems, products and
processes are proprietary to the ELITE Group by virtue of their unique
design.
8.2 MANAGER shall have no rights in respect of any Intellectual Property of
the ELITE Group, or the goodwill associated therewith and MANAGER
acknowledges that all such rights are vested in the ELITE Group.
8.3 MANAGER shall not during the term of this Agreement or for a period of
two years thereafter aid, abet or assist, either directly or indirectly,
anyone else in replicating, creating, manufacturing, marketing,
licensing, or in any other way dealing in systems and products infringing
the ELITE Group's Intellectual Property.
8.4 MANAGER shall comply with all directives of the Board and take all other
reasonable steps to prevent infringement by third parties of the
Intellectual Property of the ELITE Group.
8.5 MANAGER shall promptly notify the Board of Directors in the event that he
becomes aware of any infringement by third parties of the ELITE Group's
Intellectual Property.
8.6 MANAGER further agrees to promptly deliver to ELITE on termination of
this Management Services Agreement, or at any time that ELITE may so
request, all memoranda, notes, records and other documents comprising or
relating to the Intellectual Property that MANAGER then possesses or has
under MANAGER'S control.
9. COVENANTS NOT TO COMPETE
9.1 MANAGER agrees that the services he has to perform under this Agreement
are of a special, unique, unusual, extraordinary and intellectual in
character.
9.2 MANAGER acknowledges that ELITE would sustain considerable injury were
MANAGER to take the knowledge, skills, business contacts and information
(whether confidential or otherwise) acquired during MANAGER'S service
with ELITE and use them to compete with ELITE.
9.3 In order to protect Elite's interests in its Confidential Information and
Intellectual Property, MANAGER covenants that during the term of this
Agreement and for a period of one year after termination for any reason,
neither MANAGER, nor any corporation, partnership or joint venture of
which MANAGER is a member, will without the prior written consent of
ELITE, either directly or indirectly, and whether as principal, agent,
trustee, financier, shareholder, debenture holder, director, consultant,
partner, advisor, or otherwise in the Territory:
a) Compete with the Business of ELITE as carried on by ELITE until
the date of termination.
b) Be concerned in any corporation or business that is or may be
engaged or concerned in or does or may carry on business that
competes with the Business of ELITE as carried on by ELITE until
the date of termination. MANAGER may hold or make investments in
Companies whose business does not directly compete with the
Business at the time of making such investment, but shall
immediately disclose such investments should their business
subsequently become competitive.
c) Solicit or entice away from ELITE by any means whatsoever (or
endeavor to do so) any business from any person who is or was a
customer of ELITE within the six month period prior to termination
of this Agreement.
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d) Employ, offer or procure the offer of employment, or solicit or
entice away from ELITE, or induce to breach his/her Agreement of
service with ELITE (or endeavor to do so) any person who was
employed by ELITE or who was an officer or agent of ELITE, or a
Contractor to ELITE at the date of termination or was employed by
ELITE in any such capacity at any time during the six month period
prior to termination.
9.4 MANAGER will not at any time after termination of this agreement
represent himself as being in any way connected with or interested in the
Business or affairs of ELITE.
9.5 The provisions of this Clause 9 shall bind and enure for the benefit of
the Parties after the termination of this Agreement.
9.6 MANAGER acknowledges that this covenant not to compete is not
unreasonably restrictive nor will it interfere with his ability to earn
his livelihood for among other things the following reasons: o It covers
only those services and products of the type marketed by the ELITE Group.
The market for such systems and products is very small relative to the
total software market. o Inconvenience of this covenant not to compete
upon MANAGER is minimal in comparison with the hardship that the ELITE
Group would potentially sustain without it. o The experience and skills
that MANAGER acquires in the course of his employment with ELITE are
readily transferable to other non-competing management opportunities on
termination of his Agreement with ELITE. 9.7 Each of the undertakings of
MANAGER contained in Clause 9.3 shall be read and construed independently
of the other undertakings so that if one or more should be held to be
invalid as an unreasonable restraint of trade or for any other reason
whatever then the remaining undertakings shall be valid to the extent
that they are not held to be so invalid.
9.8 While the undertakings of MANAGER contained in Clause 9.3 and 9.4 are
considered by the Parties to be reasonable in all the circumstances, if
one or more of such undertakings should be held to be invalid as an
unreasonable restraint of trade or for any other reason whatsoever, but
would have been held valid if part of the wording thereof had been
deleted or the period thereof reduced or the range of activities or area
dealt with thereby reduced in scope, the said undertakings shall apply
with such modifications as may be necessary to make them valid and
binding upon the MANAGER. Any such modifications shall be kept to a
minimum.
9.9 As further consideration for entering into the restrictive covenants
contained in this Agreement MANAGER shall receive the incentive bonus
and/or stock option grants as set out in Schedule A.
10 INTELLECTUAL PROPERTY ASSIGNMENT
10.1 MANAGER agrees that all software, inventions, processes, products,
designs or procedures relating to the Business of ELITE which MANAGER may
develop or participate in the development of during the term of this
Agreement (hereinafter collectively referred to as "MANAGER'S
Intellectual Property") whether during normal working hours or not shall
be deemed to be the property of ELITE or its assignee.
10.2 MANAGER agrees to assign his rights if any to MANAGER'S Intellectual
Property, developed while employed by ELITE, to ELITE and further to sign
any documents reasonably required by ELITE in order to protect ELITE'
interest in the MANAGER'S Intellectual Property.
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11 TERM
11.1 The initial term of this Agreement is set out in Schedule A. Thereafter
it may be renewed by mutual agreement until terminated by either party
giving the other party the Required Notice of Termination.
11.2 ELITE may terminate this Agreement forthwith for cause if:
o MANAGER is guilty of gross dereliction of duty, incompetence or a
major breach of this Agreement
o MANAGER commits any illegal, dishonest or fraudulent act against
the company or is indicted, convicted or pleads nolo contendere to
any felony or any act of moral turpitude
o MANAGER is guilty of the use or possession of illegal drugs, or
the excessive use of alcohol, or commits any other act that brings
ELITE into disrepute.
o MANAGER dies, or is incapable of performing MANAGER'S obligations,
in the normal manner, on account of disability for ten consecutive
weeks, or in the aggregate fifteen weeks, of any year. If this
Agreement is terminated for cause pursuant to this sub-clause
(iv), MANAGER or his heirs and assigns as the case may be, shall
immediately vest in all options allocated to MANAGER up to and
including the end of the calendar year of such death or
disability.
o Any other termination shall be deemed to be without cause.
11.3 ELITE shall have the right to terminate this Agreement without cause upon
written notice to MANAGER. If ELITE terminates this Agreement without
cause, ELITE shall continue to pay the salary portion of MANAGER'S
compensation as it becomes due and continue benefits for a period of one
month from the effective date of termination of this Agreement.
11.4 The Termination of this Agreement shall be without prejudice to the
rights of the parties that accrued up to the date of termination.
Termination shall not affect those clauses herein, which by their nature
the parties intend to survive termination.
12. REPRESENTATIONS AND WARRANTIES
12.1 The parties represent the warrant to each other:
o Each is free to enter into this Management Services Agreement
o Each possesses the legal authority to enter into this Management
Services Agreement
o There are no outstanding Contractual commitments that will prevent
or restrict any of them from entering into this Agreement and
performing the obligations hereunder.
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13. GOVERNING LAW
13.1 The laws of Texas and controlling Federal Law shall govern this
Management Services Agreement and any action hereunder shall subject to
the jurisdiction of the federal and state courts sitting in Brazoria
County, Texas.
14. ENTIRE AGREEMENT
14.1 This Agreement represents the entire agreement between the parties with
respect to the subject thereof as such it supersedes and replaces any
prior arrangements between the parties either oral or written.
14.2 Any changes or modifications to this Agreement shall be valid only if
made in writing and signed by both parties.
15. SEVERABILITY
15.1 Each provision in this Management Services Agreement is severable wholly
and in part and if any provision is said to be illegal or unenforceable
for any reason only the illegal or unenforceable portion shall be
ineffective and the remainder shall remain in full force and effect.
16. AMENDMENT
16.1 Any purported amendment or variation of this Agreement must be in writing
and be signed by both Parties.
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SCHEDULE A
COMPENSATION, TERMS AND CONDITIONS
NAME Joseph D. Smith
POSITION CHIEF EXECUTIVE OFFICER AND PRESIDENT
COMMENCEMENT DATE August 6, 1997
INITIAL TERM One year
REVIEW DATE 1 January each year.
TERRITORY United States of America
REQUIRED NOTICE OF Thirty (30) days notice in writing
TERMINATION (unless terminated for cause)
COMPENSATION
1. ANNUAL COMPENSATION
MANAGER shall receive the following salary:
<TABLE>
<CAPTION>
<S> <C> <C>
SALARY: Base Salary (payable biweekly) $120,000.00 per annum
TOTAL ON TARGET REMUNERATION $120,000.00
PERFORMANCE BONUS As determined by the Board of Directors
</TABLE>
2. INCENTIVE OPTIONS
In addition to the Annual Compensation detailed herein, MANAGER shall receive
stock option allocations giving the employee the right to purchase stock in the
company at current Fair Market Value (FMV) in accordance with the Elite
Logistics Inc., 2000 Employee Incentive Plan.
<TABLE>
<CAPTION>
Allotment Exercise Price Vesting Period Allocation Date
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<S> <C> <C> <C>
000 Shares FMV on Grant Date 3 years January 1, 2001
000 Shares FMV on Grant Date 3 years January 1, 2002
000 Shares FMV on Grant Date 3 years January 1, 2003
</TABLE>
Vesting: In respect of each option grant 1/3 of the options vest on completion
of one year's service (on the anniversary of the date of employment) and
thereafter 1/24th of the remaining balance vests at the end of each subsequent
month of completed service.
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3. STOCK PURCHASE RIGHTS
MANAGER shall on the execution of this agreement receive in addition to the
incentive stock options detailed above restricted stock purchase rights pursuant
to the 2000 Equity Incentive Plan as follows:
<TABLE>
<CAPTION>
Allotment Grant Date Exercise Price Expiration Date
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<S> <C> <C> <C>
000 September 1, 2000 $2.75 December 29, 2000
</TABLE>
These shares shall be subject to execution of a restricted stock purchase
agreement and be restricted for a period of 12 months from the date of such
investment. Elite agrees to loan MANAGER the funds necessary to purchase these
shares at an interest rate two (2) points above National Prime Rate at the time
of purchase.
4. PAID VACATION / DOMESTIC LEAVE
MANAGER shall, be entitled to 15 days paid annual vacation /domestic leave to be
taken in accordance with company policy.
5. LEAVE OF ABSENCE, BEREAVEMENT LEAVE ETC
MANAGER shall be entitled to leave of absence and compensation in accordance
with company policy as set out in the Employee Handbook during periods of
sickness, disability, or bereavement.
6. HEALTH INSURANCE
MANAGER and MANAGER's dependents will be eligible for participation in the
company's group health insurance Plan and other employee benefits, on the first
of the month following 90 days of employment.
7. RELOCATION EXPENSES
If relocation is required by ELITE then ELITE shall reimburse MANAGER's
reasonable costs of relocating to Freeport, Texas in accordance with ELITE
relocation policy as set our in the Employee Handbook.
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SCHEDULE B
POSITION SPECIFICATION
NAME: Joseph D Smith
POSITION: Chief Executive Officer and President
REPORTING TO: Elite Logistics, Inc. Board of Directors
<TABLE>
<CAPTION>
AREAS OF RESPONSIBILITY PERFORMANCE CRITERIA
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<S> <C>
SUMMARY EDUCATION AND/OR EXPERIENCE
Manages and directs the organization toward its primary LANGUAGE SKILLS
objectives, based on profit and return on capital, by
performing the following duties personally or through MATHEMATICAL SKILLS
subordinate managers.
REASONING ABILITY
ESSENTIAL DUTIES AND RESPONSIBILITIES include the
following. Other duties may be assigned. CERTIFICATES, LICENSES, REGISTRATIONS
Plans, coordinates, and controls the daily operation of PHYSICAL DEMANDS The physical demands described here
the organization through the organization's managers. are representative of those that must be met by an
employee to successfully perform the essential
Establishes current and long range goals, objectives, functions of this job. Reasonable accommodations may
plans and policies, subject to approval by the Board of be made to enable individuals with disabilities to
Directors. perform the essential functions.
Dispenses advice, guidance, direction, and authorization WORK ENVIRONMENT The work environment characteristics
to carry out major plans, standards and procedures, described here are representative of those an employee
consistent with established policies and Board approval. encounters while performing the essential functions of
this job. Reasonable accommodations may be made to
Meets with organization's other executives to ensure enable individuals with disabilities to perform the
that operations are being executed in accordance with essential functions.
the organization's policies.
Oversees the adequacy and soundness of the
organization's structure.
Reviews operating results of the organization, compares
them to established objectives, and takes steps to
ensure appropriate measures are taken to correct
unsatisfactory results.
Plans and directs all investigations and negotiations
pertaining to mergers, joint ventures, the acquisition of
businesses, or the sale of major assets with approval of
the Board of Directors.
Establishes and maintains an effective system of
communications throughout the organization.
Represents the organization with major customers,
shareholders, the financial community, and the public.
SUPERVISORY RESPONSIBILITIES
QUALIFICATIONS To perform this job successfully, an
individual must be able to perform each essential duty
satisfactorily. The requirements listed below are
representative of the knowledge, skill, and/or ability
required. Reasonable accommodations may be made to enable
individuals with disabilities to perform the essential
functions.
</TABLE>
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SCHEDULE C
GENERAL TERMS AND CONDITIONS
<TABLE>
<S> <C>
VACATION/DOMESTIC/PERSONAL Annual leave is provided in accordance with Schedule A. All
applications for annual leave shall be made on the leave
application form and shall require a minimum of two weeks
notice. MANAGER is entitled to up to five days leave on
ordinary pay where MANAGER finds that it is essential to
stay at home in an emergency in the event of illness of a
husband or wife, dependent child or dependent parent. Such
leave shall be treated as though it were due to MANAGER's
own sickness and shall be subject to the following
conditions:
o leave shall be set-off against MANAGER's sick leave
entitlement
o On return to work MANAGER shall complete a sick
leave notification and file with the human resources
manager.
o If requested, a medical certificate shall be
provided to support such leave entitlement.
BEREAVEMENT LEAVE MANAGER is entitled to 3 days bereavement leave in each year
on the death of the MANAGER's spouse, child, parent, brother
or sister, grandparent, mother in law or father in law. The
entitlement will not form part of any benefit payable upon
termination of the Management Services Agreement. MANAGER
shall complete a Bereavement Leave Application and file with
the human resources manager.
DRESS CODE MANAGER is expected to comply with "ELITE" dress code as
published in the Employee Handbook from time to time.
HOURS OF WORK MANAGER is expected to work a minimum of 40 hours in any
week. These will normally be worked Monday to Friday at any
time between 7:00 a.m. and 6:00 p.m. to suit the MANAGER.
PERIOD FOR TERMINATION OF Unless terminated by Elite for cause, either party may terminate
EMPLOYMENT the Management Services Agreement by giving the other party thirty
(30) days notice in writing.
</TABLE>
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<TABLE>
<S> <C>
PAYMENT ON TERMINATION OF On termination of employment under this Agreement, MANAGER
EMPLOYMENT will be paid
o Salary to date of termination
o Accrued annual leave
o Three months salary in lieu of notice if
ELITE does not wish MANAGER to work out the
notice period (unless termination is for
cause). o Any and all bonuses and commissions
accrued to the date of termination.
Unused sick leave is not payable on termination of
employment.
SICK LEAVE After three months of service MANAGER is entitled to
accrued sick leave to be taken in accordance with
company policy. .
PUBLIC HOLIDAYS Public holidays shall be taken in accordance with
company policy.
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