EXHIBIT 10.4
July 1, 1994
Mr. Michael J. Acierno
5 Tam O'Shanter Lane
Ft. Lauderdale, Florida 33308
RE: EMPLOYMENT AGREEMENT
Dear Mike:
This letter confirms our mutual agreement with respect to the
following:
First American Railways, Inc. (the "Company"), agrees to employ you and
you agree to accept such employment, upon the terms and conditions set forth
below beginning July 1, 1994 for a period of three years subject to the terms of
extension provided below. The term of your employment shall be automatically
renewed for additional periods of one year each unless and until you or the
Company gives the other party written notice, received not later than 90 days
prior to the then current expiration date of your employment, of your or its
intention to terminate your employment.
During the period of your employment, you will serve as Vice President
of the Company. You agree that, during the period of your employment under this
agreement, you shall serve the Company faithfully, diligently and to the best of
your ability, under the direction and supervision of the Board of Directors,
Chief Executive Officer and Chief Operating Officer of the Company, devoting
your full business time, energy and skill to such employment. You further agree
to perform from time to time such services and to act in such capacities as the
Board of Directors,
Mr. Michael J. Acierno
July 1, 1994
Page 2
Chief Executive Officer and Chief Operating Officer of the Company shall request
without further compensation other than that for which provision is made in this
agreement.
During the period of your employment, the Company shall pay you an
annual salary at the rate of $75,000, such salary to be payable in accordance
with the Company's regular payroll practice.
It is contemplated that, in connection with your employment by the
Company, you will be required to incur travel, entertainment and other business
expenses which you deem necessary for the performance of your duties and
responsibilities. The Company agrees to reimburse you for all such necessary
out-of-pocket expenses reasonably incurred by you upon the submission to the
Company of expense vouchers or other statements satisfactorily evidencing the
expenses for which reimbursement is sought.
In the event that you are incapacitated by reason of mental or physical
disability or otherwise during the period of your employment so that you are
prevented from performing your principal duties and services to the Company for
a period of 90 consecutive days or for shorter periods aggregating 90 days
during any 12-month period, the Company shall have the right to terminate your
employment by sending or telecopying written notice of such termination to you
or to your legal representative, as the case may be. Upon such termination or in
the event of your death, the Company shall be relieved of any further
obligations under this
Mr. Michael J. Acierno
July 1, 1994
Page 3
agreement with the exception of the obligation to pay to you or your legal
representative, as the case may be, any accrued and unpaid salary earned by you.
Insurance and other benefits, if any, due to you under plans and programs of the
Company shall be determined under the applicable provisions of such plans and
programs.
The Company shall have the right to terminate your employment for
"cause" at any time by reason of one or more of the following occurrences: (i)
your conviction, by a court of competent and final jurisdiction, of any crime
(whether or not involving the Company) which constitutes a felony in the
jurisdiction involved; (ii) your commission of a material act of malfeasance,
fraud, dishonesty or breach of trust against the Company; or (iii) your material
violation of the terms of this agreement. In the event the Company elects to
terminate your employment for "cause," the Company shall send or telecopy
written notice to you informing you of such election and setting forth the
action or omission constituting the reason for terminating your employment for
"cause." If your employment is validly terminated for "cause" under this
paragraph, notwithstanding any other provisions of this agreement, the Company
will be relieved of any further obligations under this agreement with the
exception of the obligation to pay you any accrued and unpaid salary due to you.
Mr. Michael J. Acierno
July 1, 1994
Page 4
You shall be entitled to participate in any and all life
insurance, medical insurance, disability insurance and other employee benefit
plans which are made available during the term of your employment to other
employees of the Company of comparable rank, to the extent that you qualify
under the eligibility provisions of such plan or plans. You shall also be
entitled to participate to the same extent as other employees of the Company of
a like capacity and position in any profit sharing plan, pension plan or
incentive compensation plan that the Board of Directors of the Company shall
determine to make available to such employees. In addition, you shall be
entitled to vacation with pay aggregating four weeks (exclusive of office
holidays) each calendar year during the term of your employment, to be taken at
times consistent with the effective discharge of your duties.
You agree that, during and following cessation of your employment with
the Company, you shall not, without the prior written consent of the Board of
Directors of the Company, disclose to any person, firm, corporation or other
entity, for any reason or for any purpose whatsoever, any confidential or
proprietary knowledge or information pertaining to the Company or any of its
affiliates.
You covenant and agree that during the term hereof and, if you or the
Company shall terminate this agreement prior to the expiration of the term
hereof, then for a period ending two years
Mr. Michael J. Acierno
July 1, 1994
Page 5
from the termination date, you will not be a consultant, director, officer or
employee or have any interest either directly or indirectly in any individual,
partnership, corporation or other entity which is engaged in a business
competitive with the business of the Company; provided, however, that the
foregoing shall not prohibit the ownership by you of less than 5% of any class
of outstanding voting securities (or any options, warrants or rights to acquire
such securities or any securities convertible into such securities) of any
corporation.
You represent to the Company that you are not subject to any
restriction, contractual or otherwise, which prohibits you from undertaking
employment by the Company in accordance with the terms and provisions of this
agreement.
This agreement represents the entire understanding and agreement
between us with respect to your employment by the Company and supersedes all
prior negotiations, representations and agreements made by and between us. No
alteration, amendment or modification of any of the terms or provisions of this
agreement shall be valid unless made pursuant to an instrument in writing and
signed by each of us. This agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
Kindly indicate below that the foregoing represents our mutual
agreement with respect to the matters described in this
Mr. Michael J. Acierno
July 1, 1994
Page 6
agreement by signing and returning a copy of this agreement, whereupon this
agreement shall constitute an agreement between us.
Very truly yours,
FIRST AMERICAN RAILWAYS, INC.
By: /s/ ALLEN C. HARPER
---------------------------
Allen C. Harper
Its: Chairman and Chief
Executive Officer
Agreed to and Accepted this
1st day of July, 1994
/s/ MICHAEL J. ACIERNO
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Michael J. Acierno