EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT (the “Agreement” )
dated as of December 1, 2004 is between Stonepath Logistics
Domestic Services, Inc. , a Minnesota corporation, with a place
of business at 1230 Trapp Road, Eagan, Minnesota, 55121 (the
“Company” ), and Rick Manner an
individual residing at 45763 Holmes Drive, Canton, MI 48187 the (
“Executive” ).,
WHEREAS,
the Company desires to employ Executive, and Executive desires to
be employed by the Company, upon the terms and conditions set forth
in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing, the mutual and
dependent promises hereinafter set forth, and other good and
valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties, intending to be legally bound, do
hereby agree as follows:
1.1
Employment/Duties . The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment as a Sr.
Vice President of Domestic Services of the Company under the
terms and conditions set forth in this Agreement. Executive shall
report to the Chief Executive Officer of the Company for the
performance of his duties. Executive shall follow the reasonable,
nondiscriminatory directives of the Board of Directors of the
Company, and the policies and procedures adopted in connection
therewith from time-to-time. Executive shall have responsibility
for such duties as are customarily associated with the position of
a vice president of the Company and such other duties and
responsibilities, as may be assigned by the Chief Executive Officer
of the Company. During the Term (as defined in Section 1.3
hereof), Executive shall devote substantially all of his working
time, attention and skill to the business affairs of the Company.
Executive’s office will be in the Company’s Seattle,
Washington location or such other office of the Company or an
affiliate thereof as is mutually acceptable to the Executive and
the Company.
1.2 Effective
Date . The Effective Date of this Agreement shall commence on
the date hereof (the “Effective Date”
).
1.3 Term .
This Agreement shall commence on the Effective Date and shall
continue until December 1, 2007, unless (a) extended
pursuant to the terms hereof of (b) earlier terminated as
provided in Article 6. This Agreement may be renewed for
successive one (1) year terms, each upon the written election
of the Company delivered to Executive at least thirty
(30) days prior to the scheduled expiration of the then
current Term. The initial term through December 1, 2007 and
any renewal terms are collectively referred to as the
“Term.”
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2.1 Base
Salary . For each twelve (12) month period during the Term
of this Agreement, the Executive shall be paid an annual base
salary of no less than $150,000.00 in a manner consistent (but not
less often than monthly) with the usual pay practices of the
Company. Base Salary will be subject to a minimum annual
cost-of-living increase of five percent (5%) per annum, subject to
the approval of them company Chief Executive Office.
2.2
Discretionary Bonus . The Executive shall be eligible to
receive an annual performance bonus at the discretion of the Chief
Executive Officer of the Company.
2.3
Benefits . The Executive will, during the Term, be permitted
to participate in such pension, profit sharing, bonus (subject to
the provisions of Section 2.2), life insurance,
hospitalization, major medical, and other employee benefit plans of
the Company that may be in effect from time to time, to the extent
Executive is eligible under the terms of those plans. The Company
may alter, modify, add to or delete its benefit plans as they apply
to the Company’s executive officers at such times and in such
manner as the Company determines appropriate, without recourse by
Executive so long as such changes are applied in a substantially
uniform manner to the Company’s executive
officers.
2.4
Vacation . Executive shall be entitled to receive an annual
vacation of three (3) weeks in accordance with the
Company’s policies applicable to its executive officers,
however, no more than fourteen (14) consecutive vacation days
may be taken without the consent of the Company. Vacation days
during any calendar year that are not used by the Executive during
such calendar year may be used in any subsequent calendar year;
provided, however, that no more than two (2) weeks’ paid
vacation may be accrued or carried forward and any excess accrued
vacation time shall be paid to Executive in cash at the end of the
calendar year.
2.5 Business
Expenses . The Company shall reimburse the Executive, in
accordance with its practice from time-to-time, for all reasonable
and necessary expenses and other disbursements incurred by the
Executive for or on behalf of the Company in the performance of his
duties hereunder. The Executive shall provide such appropriate
documentation of expenses and disbursements as may from time to
time be required by the Company.
2.6
Insurance . In addition to any life insurance provided by
the Company to the Executive, the Company may, at its discretion
and at any time after the Effective Date, apply for and procure, as
owner and for its own benefit, insurance on the life of the
Executive, in such amounts and in such form or forms as the Company
may choose. Unless otherwise agreed, the Executive shall have no
interest whatsoever in any such policy or policies, but shall, at
the request of the Company, subject herself to such reasonable
medical examinations, supply such information and execute such
documents as may be reasonably required by the insurance company or
companies to which it has applied for such insurance. Upon
termination of employment, Executive shall have the right to take a
full ownership and beneficial interest in such policies and assume
responsibility for all future payments thereunder, without
compensation to the Company for such benefit (except to the extent
of any pre-paid premiums
2
thereunder) and
the Company shall promptly, and in good faith, but subject to any
restrictions imposed by any insurer, cooperate with Executive in
such transfer of such policy or policies.
3.1
Confidential and Proprietary Information . Executive
acknowledges that she is in a relationship of confidence and trust
with the Company and has and will come into possession of
information that has been created, discovered, developed, acquired
or otherwise become known to the Company or its affiliates
(including, without limitation, information that is created,
discovered, developed, acquired or made known by Executive in the
course of His employment and information belonging to third
parties) and in which the Company or its affiliates has rights of
indeterminable commercial value (all of the aforementioned
information is hereinafter collectively referred to as
“Proprietary Information” ). By way of
illustration, Proprietary Information includes, but is not limited
to, trade secrets, processes, formulas, data and know-how,
marketing plans, strategies, forecasts, customer lists, vendor
lists, proprietary pricing data, business plans, financial
information, and information collected from the customers of the
Company or its affiliates. Executive acknowledges that Proprietary
Information is in part set forth in the Company’s manuals,
memoranda, specifications, accounting and sales records, and other
documents and records of the Company and its affiliates whether or
not otherwise identified as “Proprietary.” Proprietary
Information shall exclude information that has become part of the
public domain, except (i) when and to the extent that such
public information, when applied to or combined with other
information, is non-public and proprietary to the Company or its
affiliates, or (ii) where such information became public
through unauthorized disclosure by Executive or another party under
an obligation of confidentiality to the Company or its affiliates.
Proprietary Information shall also exclude information that becomes
available to Executive on a non-confidential basis from a
non-Company third party which has not been disclosed in breach of
any confidentiality agreement with the Company.
3.2
Non-Disclosure . Executive acknowledges that all
Proprietary. Information shall be the sole property of the Company,
its affiliates and their successors and assigns. During the Term
and for so long as the information remains Proprietary Information,
Executive agrees to keep in confidence and trust all Proprietary
Information, and not to use, disclose, disseminate, publish, copy,
or otherwise make available, directly or indirectly, except in the
ordinary course of the performance of Executive’s duties
under this Agreement, any Proprietary Information except as
expressly authorized in writing by the Company; provided ,
however , that Executive shall be relieved of His obligation
of nondisclosure hereunder if Proprietary Information is required
to be disclosed by any applicable judgment, order or decree of any
court or governmental body or agency having jurisdiction or by any
law, rule or regulation, provided that in connection with any such
disclosure, Executive shall give the Company reasonable prior
written notice of the disclosure of such information pursuant to
this exception and shall cooperate with the Company to permit the
Company to seek confidential treatment for such information from
any authority requiring delivery of such information;
provided , further , however , that if Company
has not obtained such confidential treatment by the date Executive
is required by such distraint to disclose the Proprietary
Information, Executive shall be free to provide such disclosure and
there shall be no violation of or damages determined under
this
3
Agreement or
otherwise for Executive’s disclosure action and compliance
with or pursuant to such authority.
3.3 Return of
Proprietary Information . Executive agrees that when she ceases
to be employed by the Company, whether such cessation of employment
shall be for any reason or for no reason, with or without cause,
voluntary or involuntary, or by termination, resignation,
disability, retirement or otherwise, Executive shall deliver to the
Company all documents and data of any nature owned by the Company
pertaining to the Proprietary Information.
4.1
Non-Solicitation and Noncompetition Covenants .
(a) Executive
covenants and agrees with the Company that during the Term of this
Agreement, she will not, without the prior written consent of
Stonepath, which may be withheld or given in its sole discretion,
directly or indirectly, or individually or collectively within the
United States of America, lend any advice or assistance, or engage
in any activity or act in any manner, including but not limited to,
as an individual, owner, sole proprietor, founder, associate,
promoter, partner, joint venturer, shareholder (other than as a
less than five percent (5%) shareholder of a publicly traded
corporation), officer, director, trustee, manager, employer,
employee, licensor, licensee, principal, agent, salesman, broker,
representative, consultant, advisor, investor or otherwise for the
purpose of establishing, operating, assisting or managing any
business or entity that is engaged in activities competitive with
the Business of the Company, as it is then being operated at the
commencement of such Noncompete Term.
(b) Executive
covenants and agrees with the Company that during the
“Non-Solicitation Term”, as hereinafter defined, she
will not, without the prior written consent of the Company, which
may be withheld or given in its sole discretion, act in any manner,
including but not limited to, as an individual, owner, sole
proprietor, founder, associate, promoter, partner, joint venturer,
shareholder (other than as a less than five percent (5%)
shareholder of a publicly traded corporation), officer, director,
trustee, manager, employer, employee, licensor, licensee,
principal,
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