Exhibit 10.17
Execution Copy
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into by and between Daseke, Inc., a Delaware corporation (the "Company"), and Soumit Roy ("Employee") effective as of April 28, 2020 (the "Effective Date").
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acknowledges represents 90% of Employee's Base Salary, upon the terms set forth in the award agreement attached hereto as Exhibit B (the "Turn-Around Award").
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Employee's employment pursuant to this Agreement is at will and may be terminated at any time in accordance with Section 5. The period from the Effective Date until the termination of Employee's employment pursuant to this Agreement, regardless of the time or reason for such termination, shall be referred to herein as the "Employment Period."
Provided, however, that solely with respect to the actions or omissions set forth in Section 5(a)(ii), (iii), (v) and (vi), such actions or omissions must remain uncured thirty (30) days after the Board has provided Employee written notice of the obligation to cure such actions or omissions. For the avoidance of doubt, the actions or omissions set forth in Section 5(a)(i), (iv) and (vii) are not permitted to be cured by Employee under any circumstances. Any act or failure to act (i) based on specific authority given pursuant to a resolution adopted by the Board, (ii) based on specific advice of the Company's outside counsel, or (iii) based on the specific direction of the Board shall be presumed to be done, or omitted to be done, by Employee in good faith and in the best interests of the Company and therefore shall not form the basis for a Cause termination.
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Notwithstanding the foregoing provisions of this Section 5(c) or any other provision of this Agreement to the contrary, any assertion by Employee of a termination for Good Reason shall not be effective unless all of the following conditions are satisfied: (A) the condition giving rise to Employee's termination of employment must have arisen without Employee's consent; (B) Employee must provide written notice to the Board of the existence of such condition(s) within thirty (30) days of the initial existence of such condition(s); (C) the condition(s) specified in such notice must remain uncorrected for thirty (30) days following the Board's receipt of such written notice; and (D) the date of Employee's termination of employment must occur following the expiration of the thirty (30) day cure period, but in any event within sixty-five (65) days following the Board's receipt of such notice. "For the avoidance of doubt and notwithstanding the preceding provisions of this Section 5(c), the Company and Employee expressly agree that any diminution or reduction in Employee's title, position, responsibilities or duties associated with the cessation of his service as PFO shall not constitute Good Reason.
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terminate Employee's employment with the Company for convenience at any time and for any other reason, or no reason at all, upon ninety (90) days' advance written notice to the Company; provided, however, that if Employee has provided notice to the Company of Employee's termination of employment, the Company may determine, in its sole discretion, that such termination shall be effective on any date prior to the effective date of termination provided in such notice (and, if such earlier date is so required), then it shall not change the basis for Employee's termination of employment nor be construed or interpreted as a termination of employment pursuant to Section 5(b)).
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target Annual Bonus for the year in which such event occurred prorated for the period of days beginning on January 1 and ending on the date of death or Disability, as applicable, and payable within 60 days following the date of Employee's death or termination due to Disability, as applicable. In addition, subject to Section 6(f) below and subject to (A) Employee's (or his beneficiary's) timely and proper election of group health plan continuation coverage under COBRA, and continued eligibility for such coverage under COBRA, and (B) the continued copayment of premiums at the same level and cost to Employee (or his beneficiaries) as if Employee were an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), the Company shall provide Employee (or his beneficiary) with a monthly cash payment equal to 100% of the excess of the applicable COBRA participation premiums over the amount described in clause (B) until the earlier of eighteen (18) months following the Termination Date, (ii) the date on which Employee becomes employed by a third party and becomes eligible to participate in such third party's group health plan, or (iii) the maximum period allowed by COBRA for Employee to continue such coverage under Company's plans. Employee shall not be entitled to any additional amounts or benefits as the result of such termination of employment.
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Cause pursuant to Section 5(b), (y) by Employee for Good Reason pursuant to Section 5(c), or (z) due to Employee's death or Disability pursuant to Section 5(d):
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without revocation of the Release by Employee, then Employee shall not be entitled to any portion of the Severance Consideration. As used herein, the "Release Expiration Date" is that date that is twenty-one (21) days following the date upon which the Company delivers the Release to Employee (which shall occur no later than seven (7) days after the Termination Date) or, in the event that such termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967, as amended), the date that is forty-five (45) days following such delivery date.
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required by law;provided, however, that in the event disclosure is required by applicable law and Employee is making such disclosure, Employee shall provide the Company with prompt notice of such requirement, and shall use commercially reasonable efforts to give such notice prior to making any disclosure so that the Company may seek an appropriate protective order, or (iii) Employee is making a good faith report of possible violations of applicable law to any governmental agency or entity or is making disclosures that are otherwise compelled by law or provided under the whistleblower provisions of applicable law.
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acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects and not oppressive, shall not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and substantial and legitimate business interests.
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or its Affiliates shall be entitled to enforce the provisions of this Section 9 by terminating payments then owing to Employee under this Agreement.
meanings:
(t) Employee shall not make any voluntary statements, written or oral, or cause or encourage others to make any such statements that defame, disparage, or in any way criticize the personal or business reputations, practices, or conduct of any member of the Company Group; and the Company shall cause its officers and directors to not make any voluntary statements, written or oral, or cause or encourage others to make any such statements that defame, disparage, or in any way criticize the personal or business reputation, practice, or conduct of Employee. Notwithstanding the foregoing, Employee shall be permitted to make a truthful statement: (i) to the extent required by law or by any court, governmental and/or regulatory body or committee; or (ii) to the extent necessary in connection with any dispute regarding this Agreement or any other written agreement between or among Employee and the Company (or any other member of the Company Group).
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rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works. of authorship, mask works, designs, know-how, ideas and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Employee during the period in which Employee is or has been employed by or affiliated with the Company or any other member of the Company Group that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Group's businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company's or any other member of the Company Group's time or with the use of any member of the Company Group's equipment, supplies, facilities or trade secret information (all of the foregoing collectively referred to herein as "Company Intellectual Property"), and Employee shall promptly disclose all Company Intellectual Property to the Company. All of Employee's works of authorship and associated copyrights created during the period in which Employee is employed by or affiliated with the Company or any member of the Company Group and in the scope of Employee's employment shall be deemed to be "works made for hire" within the meaning of the Copyright Act. Employee shall perform, during and after the period in which Employee is or has been employed by or affiliated with the Company or any other member of the Company Group, all reasonable acts deemed necessary by the Company to assist the Company Group, at the Company's expense, in obtaining and enforcing its rights throughout the world in the Company Intellectual Property. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property.
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judgment, reimbursement from the other party of all reasonable legal fees and costs associated with such arbitration and associated judgment.
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requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. The use herein of the word "including" following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as "without limitation", "but not limited to", or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the parties hereto.
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received on the next business day after it is sent, (c) on the first business day after such notice is sent by air express overnight courier service, or (d) on the second business day following deposit with an internationally-recognized overnight or second-day courier service with proof of receipt maintained, in each case, to the following address, as applicable:
lf to the Company, addressed to:
Daseke, Inc.
ATTN: Board of Directors
15455 Dallas Parkway, Suite 550
Addison, TX 75001
If to Employee, addressed to:
The most recent address on the Company's records.
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(taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Employee's base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee's excise tax liabilities under Section 4999 of the Code.
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execution of a release and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year shall be paid or provided in the later of the two taxable years. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are exempt from, or compliant with, Section 409A and in no event shall any member of the Company Group be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Employee on account of non-compliance with Section 409A.
[Remainder of Page Intentionally Blank; Signature Page Follows]
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IN WITNESS WHEREOF, Employee and the Company each have caused this Agreement to be executed and effective as of the Effective Date.
EMPLOYEE
By: /s/ Soumit Roy
Name: Soumit Roy
DASEKE, INC.
By: /s/ Chris Easter
Name: Chris Easter
Title: Chief Executive Officer
Signature Page to Employment Agreement