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.
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)