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"