Exhibit 10.2
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
(this “ Agreement
”) dated as of the 28th day of July, 2008 between QUALITY
DISTRIBUTION, INC. , a Florida corporation (the “
Company ”), and Stephen R. Attwood (the “
Employee ”).
The Employee and the Company wish to
enter into an employment relationship on the terms and conditions
set forth in this Agreement.
Accordingly, the Company and the
Employee hereby agree as follows:
1. Employment, Duties and
Acceptance .
1.1 Employment
. The Company hereby agrees to
employ the Employee for the Term (as defined in Section 2.1),
to render exclusive and full-time services to the Company, in the
capacity of Senior Vice President and Chief Financial Officer (CFO)
of the Company and to perform such other duties consistent with
such position (including service as a director or officer of any
affiliate of the Company if elected) as may be assigned by the
Company. It is agreed and understood that, if applicable, the
Employee shall resign as an officer of the Company or any
subsidiary immediately upon termination of his or her employment
hereunder for any reason.
1.2 Duties and
Authority . During the
Term, the Employee shall serve as the Sr. Vice President and CFO
and shall have the normal duties, responsibilities, functions and
authority of the position but subject to the power and authority of
the Chief Executive Officer and/or the Company’s Board of
Directors (the “ Board ”) to expand or limit
such duties, responsibilities, functions and authority, consistent
with the foregoing, and to overrule the actions of employees and
officers of the Company. During the Term, the Employee shall report
to the Company’s Chief Executive Officer or his
designee.
1.3 Acceptance
. The Employee hereby accepts such
employment and agrees to render the services described above.
During the Term, and consistent with the above, the Employee agrees
to serve the Company faithfully and to the best of the
Employee’s ability, to devote the Employee’s entire
business time, energy and skill to such employment, and to use the
Employee’s best efforts, skill and ability to promote the
Company’s interests. It is understood that, during the Term,
subject to any conflict-of-interest policies of the Company and
Section 5.1, the Employee may serve in any capacity with any
civic, charitable, educational or professional organization
provided that such service does not interfere with his duties
hereunder, make and manage investments of his choice, and with the
prior written consent of the Chief Executive Officer, serve on the
board of directors of up to one non-competing for-profit
organization provided that such board service does not interfere
with his duties hereunder.
1.4 Location
. The duties to be performed by the
Employee hereunder shall be performed primarily at the location
specified by the Company, subject to reasonable travel requirements
consistent with the nature of the Employee’s duties from time
to time on behalf of the Company.
1.5 Fiduciary
Relationship . The
Employee acknowledges and fully understands that, by entering into
this Agreement, he undertakes a fiduciary relationship with the
Company, and, as a fiduciary, has the obligation to use due care
and act in the best interests of the Company at all times. Employee
shall be candid in all reports and responses to inquiries and shall
include in any report or response all information known or then
available to the Employee, even if not specifically requested,
which Employee reasonably believes is material, relevant and
reasonably required for the understanding of the matter in question
sufficient to inform the person to whom such report or response is
provided. Failure of the Employee to fulfill all fiduciary
obligations ordinarily imposed by law on similarly situated
employees in a fiduciary relationship will be deemed a material
breach of this Agreement by the Employee.
2. Term of Employment
.
2.1 Term . The term of the Employee’s employment
under this Agreement (the “Term”) shall commence on
July 28, 2008 (the “ Effective Date ”), and
shall end on the date on which the Term is terminated pursuant to
Section 4.
3. Compensation; Benefits
.
3.1 Salary
. As compensation for all services
to be rendered pursuant to this Agreement, the Company agrees to
pay to the Employee during the Term a base salary, payable
bi-weekly, at the initial annual rate of $225,000 (the “
Base Salary ”). On each anniversary of the Effective
Date, or such other appropriate date during each year of the Term
when the salaries of the Company’s employees are normally
reviewed, the Company and/or the Board shall review the
recommendation of the Company regarding the Employee’s Base
Salary and determine if, and by how much, the Base Salary should be
increased. The first consideration for an increase will be during
the December 2009 review process.
3.2 Bonus . The Employee shall be eligible to receive an
annual cash bonus for the achievement of the Company’s
Board-approved business plan. The annual cash bonus target
opportunity shall be 40% of Base Salary, with an opportunity to
receive such cash bonus (or greater) based upon Employee’s
extraordinary individual performance as determined by the Board.
The Employee’s annual cash bonus, if any, shall be paid in a
single lump sum cash payment at the same time as annual bonuses are
normally paid to similarly situated employees of the
Company.
3.3 Sign-on Bonus
. The Employee shall receive a sign
on bonus of $50,000 after his first 2 weeks of employment. The
bonus shall be repaid in full if the employee leaves within the
first 12 months.
3.4 Stock Options
. The Company agrees to grant
Employee options to acquire 50,000 shares of the Company’s
common stock pursuant to the Quality Distribution, Inc. 2003
Stock Option Plan (“ Option Plan ”), such
grant to be effective as of the Effective Date. These options will
vest in equal annual installments over five years. The Employee
will receive additional grants of 25,000 options on or about
January 1, 2010 and January 1, 2011.
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These grants shall vest in equal
amounts over 4 years. Future grants will be at the discretion of
the Compensation Committee. The foregoing grants are subject to the
limitations provided in the Option Plan and the Stock Option
Agreement to be executed by Employee.
3.5 Business Expenses
. The Company shall pay or reimburse
the Employee for all reasonable expenses actually incurred or paid
by the Employee during the Term in the performance of the
Employee’s services under this Agreement, subject to and in
accordance with applicable expense-reimbursement and related
policies and procedures as in effect from time to time.
3.6 PTO . During the Term, the Employee shall be
entitled to twenty (20) days of paid time off per fiscal year,
with a carryover of up to ten (10) days each fiscal year, but
at no time an aggregate of more than ten (10) days’
carryover. Days carried over may only be used for the purpose of
Family Medical Leave or Short Term Disability. Paid time off shall
be prorated for the current fiscal year in accordance with the
published Paid Time Off policy.
3.7 Benefits and
Perquisites . During the
Term, the Employee shall be eligible to participate in those
defined contribution, salary deferral, group insurance, medical,
dental, disability and other benefit plans and such perquisites of
the Company as from time to time in effect and on a basis no less
favorable than any other similarly situated employee of the
Company.
3.8 Relocation
– The Employee shall be
entitled to relocation under the Relocation Policy.
4. Termination .
4.1 Termination Events
.
4.1.1 Employee’s employment
and the Term shall terminate immediately upon the occurrence of any
of the following:
(i) the death of the
Employee;
(ii) the physical or mental
disability of the Employee, whether totally or partially, such
that, with or without reasonable accommodation, the Employee is
unable to perform the Employee’s material duties, for a
period equal to the greater of three months or the eligibility
waiting period under the Company’s long-term disability
insurance policy; or
(iii) notice of termination for
“ Cause .” As used herein, “ Cause
” means (a) a good faith finding by the Company of the
Employee’s failure to satisfactorily perform Employee’s
assigned duties for the Company as a result of Employee’s
material dishonesty, gross negligence or intentional misconduct
(including intentionally violating any law, rule or regulation or
any policy or guideline of the Company); (b) Employee’s
conviction of, or the entry of a pleading of guilty or nolo
contendere by Employee to, any crime involving moral turpitude
or any felony; or (c) a material breach of this Agreement not
cured to the reasonable satisfaction of the Chief Executive Officer
within thirty days after written notice to the Employee by the
Chief Executive Officer.
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4.1.2 The Employee may immediately
resign the Employee’s position for Good Reason, and, in such
event, the Term shall terminate. As used herein, “ Good
Reason ” means without the Employee’s consent
(i) material breach of this Agreement by the Company not cured
to the Employee’s reasonable satisfaction within thirty days
after written notice to the Chief Executive Officer by the
Employee.
4.1.3 The Company may terminate the
Employee’s employment following notice of termination without
Cause given by the Company and, in such event, the Term shall
terminate.
4.1.4 The Employee may voluntarily
resign the Employee’s position following notice to the
Company of The Employee’s intent to voluntarily resign
without Good Reason and, in such event, the Term shall
terminate.
4.1.5 The date upon which
Employee’s employment and the Term terminate pursuant to this
Section 4.1 shall be the Employee’s “
Termination Date ” for all purposes of this
Agreement.
4.2 Payments Upon a Termination
Event .
4.2.1 Following any termination of
the Employee’s employment, the Company shall pay or provide
to the Employee, or the Employee’s estate or beneficiary, as
the case may be: (i) Base Salary earned through the
Termination Date; (ii) the balance of any awarded but as yet
unpaid, annual cash bonus or other incentive awards for any fiscal
year prior to the fiscal year during which the Employee’s
Termination Date occurs; (iii) any vested, but not forfeited
benefits on the Termination Date, under the Company’s
employee benefit plans in accordance with the terms of such plans;
and (iv) benefit continuation and conversion rights to which
the Employee is entitled under the Company’s employee benefit
plans.
4.2.2 Following termination of
Employee’s employment and the Term by reason of
Section 4.1.1(i) or (ii), for the fiscal year during which the
Termination Date shall occur, the Employee, or his or her estate or
representative, as applicable, shall receive in addition to the
payments in Section 4.2.1 above, an annual cash bonus at
target prorated from the first day of such fiscal year through the
Termination Date. Such annual cash bonus shall be paid at the same
time such annual cash bonuses are normally paid to similarly
situated employees of the Company.
4.2.3 Following a termination by the
Company without Cause or by the Employee for Good Reason, the
Company shall pay or provide to the Employee in addition to the
payments in Section 4.2.1 above, (i) an annual cash bonus
at target prorated from the first day of such fiscal year through
the Termination Date which shall be paid at the same time as annual
cash bonuses are normally paid to similarly situated Employees of
the Company; (ii) Base Salary payable in accordance with the
normal payroll cycles of the Company for fifty-two weeks following
the Termination Date; and (iii) if participating in the
Company’s medical benefits at the time of termination,
Company provided medical benefits for the Employee (and his or
her
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eligible dependents) at active employee
contribution rates for fifty-two weeks following the Termination
Date. COBRA coverage eligibility will be reduced during the period
of severance coverage. If, and only if, required by law, the
Company shall not commence payme
