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EXHIBIT 10.26
EMPLOYMENT AGREEMENT, dated as of May 20, 1998 (the
"Agreement"), between The J. H. Heafner Company, Inc., a North
Carolina corporation (the "Employer"), and Richard P. Johnson
(the "Employee").
The Employer desires to retain the Employee to supply services
to the Employer, and the Employee desires to provide such services to the
Employer, on the terms and subject to the conditions set forth in this
Agreement.
In consideration of (i) the Employee's agreement to supply
services under this Agreement and (ii) the mutual agreements set forth below,
the sufficiency of which is hereby acknowledged, the Employer and the Employee
agree as follows:
SECTION 1. Employment Relationship.
(a) The Employer hereby employs the Employee, and the Employee
hereby agrees to be employed by the Employer, as President of the Southeastern
Wholesale Division of the Employer, and the Employee will devote all of his
business time, attention, knowledge and skills and use his best efforts during
the Employment Period to perform services for the Employer in accordance with
directions given to the Employee from time to time by the Board of Directors of
the Employer.
(b) The period commencing on the date of this Agreement and
ending on the date on which this Agreement is terminated is referred to herein
as the "Employment Period." During the Employment Period, the Employee will be
an at-will employee of the Employer. The Employment Period shall be freely
terminable for any reason by either party at any time.
SECTION 2. Compensation and Benefits. During the
Employment Period:
(a) Base Compensation. The Employer shall pay to the Employee
a base salary of $250,000 per annum (the "Base Salary"), payable in accordance
with the Employer's payroll practices and prorated for the period commencing on
the date of this Agreement and ending on December 31, 1998. The Base Salary
shall be increased (but not decreased) for cost of living adjustments, and
subject to additional discretionary increases (but not decreases) as determined
by an annual review by the Board of Directors on or prior to each anniversary of
the Effective Date.
(b) Additional Compensation. As additional compensation for
the Services, the Employer shall pay to the Employee (i) annual fixed bonus
payments (the "Fixed Bonus") in an amount equal to 15% of the Employee's Base
Salary for such year, payable on or around February 1 of the following year and
prorated for the period commencing on the date of this Agreement and ending on
December 31, 1998 and (ii)
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incentive compensation determined as set forth in the Company's Management
Incentive Plan. Each Fixed Bonus payment is contingent upon Employee's being
employed by the Company on the date that such Fixed Bonus payment is otherwise
due. The Employee will be entitled to such additional incentive compensation as
the Board of Directors of the Employer determines in its discretion to pay the
Employee. The Employee acknowledges that the Employer may terminate or modify
its management bonus and incentive plans at any time although no termination or
amendment affecting the Employee will be made effective unless it is
consistently applied to other employees participating in such plans.
(c) Restricted Stock and Stock Options. During the Employment
Period, the Employee shall be eligible to participate in the J.H. Heafner
Company 1997 Stock Option Plan (the "Stock Plan") and to receive grants of
options to purchase Class A Common Stock of the Employer and on terms no less
favorable than those granted to members of the Employer's Executive Committee or
other division Presidents of the Employer. Such grants may be awarded from time
to time pursuant to the Stock Plan in the sole discretion of the Employer's
Board of Directors.
(d) Benefit Plans. During the Employment Period, the Employee
shall be entitled to receive benefits from the Employer consistent with those
currently in effect for the Employer's senior executives (including deferred
compensation plans and company automobile perquisites), as those benefits are
revised from time to time by the Board of Directors of the Employer. Nothing
contained herein is intended to require the Employer to maintain any existing
benefits or create any new benefits. The Employee will be entitled to
participate in the Employer's deferred compensation program as a Level I
Employee.
(e) Other Benefits. The Employer will provide a vehicle of the
Employee's choice for the Employee's use at a cost (including expenses and
insurance) of up to $40,000. The Employee will be responsible for any costs in
excess of $40,000.
(f) Relocation Costs. The Employer will reimburse the Employee
for reasonable costs and expenses incurred by the Employee for relocation to
Charlotte, North Carolina, including without limitation the cost of any
realtor's commission payable on sale of the Employee's principal residence and
other relocation costs customarily covered under the Employer's relocation plan.
(g) Vacation and Holidays. The Employee shall be entitled to a
minimum of four weeks' vacation each year and paid holidays in accordance with
the Employer's policy.
SECTION 3. Termination.
(a) Death or Disability. If the Employee dies during the
Employment Period, the Employment Period shall terminate as of the date of the
Employee's death. If the Employee becomes unable to perform his duties for 90
consecutive days due to a physical or mental disability, (i) the Employer may
elect to terminate the Employment Period at any time thereafter, and (ii) the
Employment
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Period shall terminate as of the date of such election. All disabilities shall
be certified by a physician acceptable to both the Employer and the Employee,
or, if the Employer and the Employee cannot agree upon a physician within 15
days, by a physician selected by physicians designated by each of the Employer
and the Employee. The Employee's failure to submit to any physical examination
by such physician after such physician has given reasonable notice of the time
and place of such examination shall be conclusive evidence of the Employee's
inability to perform his duties hereunder.
(b) Cause. The Employer, at its option, may terminate the
Employment Period and all of the obligations of the Employer under this
Agreement for Cause. The Employer shall have "Cause" to terminate the Employee's
employment hereunder in the event of (i) the Employee's conviction of or plea of
guilty or nolo contendere to a felony, (ii) the Employee's gross negligence in
the performance of the Services, which is not corrected within 15 business days
after written notice, (iii) the Employee's knowingly dishonest act, or knowing
bad faith or willful misconduct in the performance of the Services, which is not
corrected within 15 business days after written notice, or (iv) the Employee's
other material breach of his obligations under this Agreement, which is not
corrected within a reasonable period of time (determined in light of the cure
appropriate to such material breach, but in no event less than 15 business days)
after written notice. If the Employee is charged with a felony, then during the
period while such charge or related indictment remains outstanding and until
finally determined, the Employer shall have the right to suspend the Employee
without compensation.
(c) Without Cause. The Employer, at its option, may terminate
the Employment Period without Cause at any time.
(d) Termination by Employee for Good Reason. The Employee may
terminate this Agreement upon 60 days' prior written notice to the Employer for
Good Reason (as defined below) if the basis for such Good Reason is not cured
within a reasonable period of time (determined in light of the cure appropriate
to the basis of such Good Reason, but in no event less than 15 business days)
after the Employer receives written notice specifying the basis of such Good
Reason. "Good Reason" shall mean (i) the failure of the Employer to pay any
undisputed amount due under this Agreement, (ii) a substantial diminution in the
status, position and responsibilities of the Employee or (iii) the Employer
requiring the Employee to be based at any office or location that requires a
relocation or commute greater than 50 miles from the office or location to which
the Employee is currently assigned.
(e) Payments in the Event of Termination. Upon the termination
of the Employment Period pursuant to this Section 3, the Employer shall pay to
the Employee, or his estate, the Base Salary and Fixed Bonus earned to the date
of death or termination for disability or Cause, as the case may be. Upon the
termination of the Employment Period by the Employer without Cause or by the
Employee for Good Reason, the
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Employer shall pay to the Employee or his estate an additional amount equal to
(i) if such termination occurs prior to the first anniversary of the date of
this Agreement, the Base Salary that would have been payable to the Employee for
the twenty-four month period beginning on the date of such termination plus the
target bonus (as defined in the Employer's Executive Bonus Plan) (the "Target
Bonus") that would have been payable to the Employee for the twelve-month period
beginning on the date of termination, (ii) if such termination occurs on or
after the first anniversary of the date of this Agreement but prior to the
second anniversary of the date of this Agreement, the Base Salary that would
have been payable to the Employee for the eighteen-month period beginning on the
date of such termination plus the Target Bonus that would have been payable to
the Employee for the twelve-month period beginning on the date of termination,
or (iii) if such termination occurs on or after the second anniversary of the
date of this Agreement, the Base Salary and Target Bonus, in each case, that
would have been payable to the Employee for the twelve-month period beginning on
the date of such termination. The Employer, at its option, may make any payments
due under this Section 3(e) either in a lump sum or as they would have been paid
had the Employee not been terminated.
(f) Termination of Obligations. In the event of termination of
the Employment Period in accordance with this Section 3, all obligations of the
Employer and the Employee under this Agreement shall terminate, except for any
amounts payable by the Employer as specifically set forth in Section 3(e);
provided, however, that notwithstanding anything to the contrary contained in
this Agreement, the provisions of Section 4 and Section 5 shall survive such
termination in accordance with their respective terms and the relevant
provisions of Section 6 shall survive such termination indefinitely. In the
event of termination of the Employment Period in accordance with this Section 3,
the Employee agrees to cooperate with the Employer in order to ensure an orderly
transfer of the Employee's duties and responsibilities.
SECTION 4. Confidentiality; Non-Disclosure.
(a) (i) Except as provided in this Section 4(a), the Employee
shall not disclose any confidential or proprietary information of the Employer
or of its affiliates or subsidiaries to any person, firm, corporation,
association or other entity (other than the Employer, its subsidiaries, officers
or employees, attorneys, accountants, bank lenders, agents, advisors or
representatives thereof) for any reason or purpose whatsoever (other than in the
normal course of business on a need-to-know basis after the Employer has
received assurances that the confidential or proprietary information shall be
kept confidential), nor shall the Employee make use of any such confidential or
proprietary information for his own purposes or for the benefit of any person,
firm, corporation or other entity, except the Employer. As used in this Section,
the term "confidential or proprietary information" means all information which
is or becomes known to the Employee and relates to matters such as trade
secrets, research and development activities, new or prospective lines of
business (including analysis and market research relating to potential expansion
of the Business), books and records, financial data, customer lists, marketing
techniques, financing, credit policies, vendor lists, suppliers,
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purchases, potential business combinations, distribution channels, services,
procedures, pricing information and private processes as they may exist from
time to time; provided that the term "confidential or proprietary information"
shall not include information that is or becomes generally available to the
public (other than as a result of a disclosure in violation of this Agreement by
the Employee or by a person who received such information from the Employee in
violation of this Agreement).
(ii) If the Employee is requested or (in the opinion of his
counsel) required by law or judicial order to disclose any confidential or
proprietary information, the Employee shall provide the Employer with prompt
notice of any such request or requirement so that the Employer may seek an
appropriate protective order or waiver of the Employee's compliance with the
provisions of this Section 4(a). The Employee will not oppose any reasonable
action by, and will cooperate with, the Employer to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the confidential or proprietary information. If, failing the entry of a
protective order or the receipt of a waiver hereunder, he is, in the opinion of
his counsel, compelled by law to disclose a portion of the confidential or
proprietary information, the Employee may disclose to the relevant tribunal
without liability hereunder only that portion of the confidential or proprietary
information which counsel advises the Employee he is legally required to
disclose, and each of the parties hereto agrees to exercise such party's best
efforts to obtain assurance that confidential treatment will be accorded such
confidential or proprietary information. During the Employment Period, and for
matters arising from events or circumstances occurring during the Employment
Period, the Employer will provide for the defense of matters arising under this
provision.
(b) The Employee agrees that he will promptly and fully
disclose to the Employer all inventions, ideas, software, trade secrets or
know-how (whether patentable or copyrightable or not) made or conceived by the
Employee (either solely or jointly with others) during the Employment Period and
for a period of six months thereafter, all tangible work product derived
therefrom (collectively, the "Ideas"). The Employee agrees that all such Ideas
shall be and remain the sole and exclusive property of the Employer. On the
request of the Employer, the Employee shall, during and after the term of this
Agreement, without charge to the Employer but at the expense of the Employer,
assist the Employer in any reasonable way to vest in the Employer, title to all
such Ideas, and to obtain any patents, trademarks or copyrights thereon in all
countries throughout the world. In this regard, the parties shall execute and
deliver any and all documents that the Employer may reasonably request.
SECTION 5. Non-Competition; Non-Solicitation. The Employee
acknowledges and recognizes his possession of confidential or proprietary
information and acknowledges the highly competitive nature of the Business and
accordingly agrees that, in consideration of the premises contained herein and
in consideration for payment by the Employer of the purchase price of the
Shares, he will not, during and for the period commencing on the Effective Date
and ending on the date that is the later of one year after the termination of
the Employment Period or the date of expiration of the Non-
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Compete Period (as defined in Section 3.6 of the Merger Agreement), for any
reason whatsoever, either individually or as an officer, director, stockholder,
partner, agent or principal of another business firm, (i) directly or indirectly
engage in the United States, or any country in which the Employer or any of its
affiliates or subsidiaries actively engages in business during the Employment
Period, in any competitive business; (ii) assist others in engaging in any
competitive business in the manner described in clause (i); or (iii) induce any
employee of the Employer or any of its affiliates or subsidiaries to terminate
such person's employment with the Employer or such affiliate or subsidiary or
hire any employee of the Employer or any of its affiliates or subsidiaries to
work with any businesses affiliated with the Employee. The Employee's ownership
of not more than 1% of the outstanding capital stock of any public corporation
shall not in itself be deemed to be engaging in any competitive business for
purposes of this Section 5.
SECTION 6. Change in Control Payment.
(a) If the Employment Period is terminated (i) upon or prior to a
Change in Control and the Employee reasonably demonstrates that such termination
occurred at the request of a third party participating in, or otherwise in
anticipation of, such Change in Control or (ii) for the reasons set forth below
occurring within one year after a Change in Control (as defined), by the
company, then the Employee shall be entitled to a payment (the "Change in
Control Payment") in an amount equal to the Base Salary that would have been
payable to the Employee for the twenty-four month period beginning on the date
of such termination plus the target bonus (as defined in the Employer's
Executive Bonus Plan) (the "Target Bonus") that would have been payable to the
Employee for the twelve-month period beginning on the date of termination. A
substantial diminution in the status, position, compensation and
responsibilities of the Employee or the requirement that the Employee relocate
more than 50 miles, all within one year after a Change in Control shall be
deemed termination by the company of the Employment Period for purposes of
determining whether a Change in Control Payment is due under this Section 6(a).
The Employer may elect to make any payments due under this Section 6(a) either
in a lump sum or as they would have been paid had the Employment Period not been
terminated. Notwithstanding the foregoing, any change in Control Payment due
under this Section 6(a) shall be limited to the extent the Board (in its sole
judgment) deems necessary to preserve the deductibility by the Company of such
Change in Control Payment pursuant to Section 280G of the Internal Revenue Code
of 1986, as amended, or any successor statute.
(b) "Change in Control" means any of the following: (i) the sale of all
or substantially all of the Company's assets to any person or entity not
directly or indirectly controlled by the holders of at least 50% of the Combined
Voting Power of the then outstanding shares of capital stock of the Company,
(ii) at any time prior to the consummation of an initial public offering of
Class A Common Stock of the Company or other common stock of the Company having
the voting power to elect directors, a transaction (except pursuant to such
initial public offering) resulting in Ann H. Gaither, William H. Gaither, Susan
G. Jones and Thomas R. Jones owning, collectively, less than
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50% of the Combined Voting Power of the then outstanding shares of capital stock
of the Company or (iii) at any time after the consummation of an initial public
offering of Class A Common Stock of the Company or other common stock of the
Company having the voting power to elect directors, the acquisition (except
pursuant to such initial public offering) by any person or entity not directly
or indirectly controlled by the Company's stockholders of more than 35% of the
Combined Voting Power of the then outstanding shares of capital stock of the
Company. "Combined Voting Power" with respect to capital stock of the Company
means the number of votes such stock is normally entitled (without regard to the
occurrence of any contingency) to vote in an election of directors of the
Company.
SECTION 7. General Provisions.
(a) Enforceability. It is the desire and intent of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, although the Employee and the Employer
consider the restrictions contained in this Agreement to be reasonable for the
purpose of preserving the Employer's goodwill and proprietary rights, if any
particular provision of this Agreement shall be adjudicated to be invalid or
unenforceable, such provision shall be deemed amended to delete therefrom the
portion thus adjudicated to be invalid or unenforceable, such deletion to apply
only with respect to the operation of such provision in the particular
jurisdiction in which such adjudication is made. It is expressly understood and
agreed that although the Employer and the Employee consider the restrictions
contained in Section 5 to be reasonable, if a final determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is unenforceable against the Employee,
the provisions of this Agreement shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. If the restrictions on the
Employee's activities contained in Sections 4 and 5 of this Agreement conflict
with those contained in Section 3.6 of the Agreement and Plan of Merger, dated
as of March 10, 1998, between the Employer, ITCO Merger Corporation, ITCO
Logistics Corporation and the stockholders of ITCO Logistics Corporation
(including the Employee) (other than with respect to duration), such Section 3.6
shall control to the extent of such conflict.
(b) Remedies. The parties acknowledge that the Employer's damages at
law would be an inadequate remedy for the breach by the Employee of any
provision of Section 4 or Section 5, and agree in the event of such breach that
the Employer may obtain temporary and permanent injunctive relief restraining
the Employee from such breach, and, to the extent permissible under the
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit. Nothing contained
herein shall be construed as prohibiting the Employer from pursuing any other
remedies available at law or equity for such breach or threatened breach of
Section 4 or Section 5 of this Agreement.
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(c) Withholding. The Employer shall withhold such amounts from any
compensation or other benefits referred to herein as payable to the Employee on
account of payroll and other taxes as may be required by applicable law or
regulation of any governmental authority.
(d) Assignment; Benefit. This Agreement is personal in its nature and
neither party shall, without the prior written consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder. The provisions
hereof shall inure to the benefit of, and be binding upon, each successor of the
Employer, whether by merger, consolidation, transfer of all or substantially all
of its shares or assets, or otherwise.
(e) Indemnity. The Employer hereby agrees to indemnify and hold the
Employee harmless consistent with the Employer's policy against any and all
liabilities, expenses (including attorneys' fees and costs), claims, judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any proceeding arising out of the Employee's employment with the
Employer (whether civil, criminal, administrative or investigative, other than
proceedings by or in the right of the Employer), if with respect to the actions
at issue in the proceeding the Employee acted in good faith and in a manner
Employee reasonably believed to be in, or not opposed to, the best interests of
the Company, and (with respect to any criminal action) Employee had no reason to
believe Employee's conduct was unlawful. Said indemnification arrangement shall
(i) survive the termination of this Agreement, (ii) apply to any and all
qualifying acts of the Employee which have taken place during any period in
which he was employed by the Employer, irrespective of the date of this
Agreement or the term hereof, including, but not limited to, any and all
qualifying acts as an officer and/or director of any affiliate while the
Employee is employed by the Company and (iii) be subject to any limitations
imposed from time to time under applicable law.
(f) Dispute Resolution; Attorney's Fees. The Employer and the Employee
agree that any dispute arising as to the parties' rights and obligations
hereunder shall be resolved by binding arbitration before a private judge to be
determined by mutually agreeable means. In such event, each of the Employer and
the Employee shall have the right to full discovery. The Employee shall have the
right, in addition to any other relief granted by such arbitrator, to attorney's
fees; provided however, that the Employer shall have the right, in addition to
any other relief granted by such arbitrator, to reasonable attorney's fees in
the event that a claim brought by the Employee is definitively decided in the
Employer's favor (with the amount of such fees being limited to those expended
defending the claim or claims decided in favor of the Employer). Any judgement
by such arbitrator may be entered into any court with jurisdiction over the
dispute.
(g) Acknowledgment. Employee acknowledges that he has been advised by
Employer to seek the advice of independent counsel prior to reaching agreement
with Employer on any of the terms of this agreement.
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(h) Amendments and Waivers. No modification, amendment or waiver of any
provision of , or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
(i) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, return receipt
requested, sent by overnight courier, or sent by facsimile (with confirmation of
receipt), addressed as follows:
If to the Employer:
The J. H. Heafner Company, Inc.
2105 Water Ridge Parkway
Suite 500
Charlotte, North Carolina 28217
Attention: J. Michael Gaither
Facsimile: (704) 423-8987
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas
New York, NY 10022
Attention: Scott F. Smith
Facsimile: (212) 841-1010
If to the Employee:
Richard P. Johnson
4229 Lomo Alto Court
Dallas, TX 75219
Facsimile:__________________
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. If such notice
or communication is mailed, such communication shall be deemed to have been
given on the fifth business day following the date on which such communication
is posted.
(g) Amendments and Waivers. No modification, amendment or waiver, of
any provision of, or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
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(h) Descriptive Headings; Certain Interpretations. Descriptive headings
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(i) Counterparts; Entire Agreement. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall constitute
one agreement. This Agreement contains the entire agreement among the parties
with respect to the transactions contemplated by this Agreement and supersedes
all other agreements or understandings among the parties with respect to the
Employee's employment by the Employer except as expressly provided in this
Section 6(i). The Employment Agreement, dated as of February 1, 1997, between
the Employee and ITCO Holding Company, Inc., is expressly superseded by this
Agreement and shall have no further force and effect, provided, that all
outstanding obligations of ITCO Holding Company, Inc. to make payments due for
services rendered by the Employee prior to the date of this Agreement shall
survive. The Stock Appreciation Rights Agreement (as amended, the "SAR
Agreement"), by and among ITCO Holding Company, Inc., Wingate Partners II, L.P.
and Richard P. Johnson, dated February 1, 1997, shall remain in full force and
effect until terminated in accordance with its terms. The Amendment to the
Management Agreements (the "Amendment"), between the Employee and ITCO Holding
Company, Inc., dated February 27, 1998, is expressly superseded by this
Agreement and shall have no further force and effect, provided, that insofar as
any provision in the Amendment directly relates to or amends the SAR Agreement,
such provision shall survive.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA.
(k) CONSENT TO JURISDICTION. EACH OF THE EMPLOYER AND THE EMPLOYEE
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH CAROLINA FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND THE EMPLOYEE AGREES NOT TO COMMENCE ANY
LEGAL PROCEEDING RELATING THERETO EXCEPT IN SUCH COURT. EACH OF THE EMPLOYER AND
THE EMPLOYEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH HE MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
THE J. H. HEAFNER COMPANY, INC.
By: /s/ WILLIAM H. GAITHER
-------------------------------------
Name:
Title:
/s/ RICHARD P. JOHNSON
---------------------------------------
Richard P. Johnson
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