-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, H3j6x5JrtefvOvdltr3XTc1nwUKj5dc/g+tFtagKEcs1sIT/0KeU3hG5ZBaqMUKt KVw2Fe9DLacG0WTbW845gQ== 0000795425-95-000020.txt : 19950601 0000795425-95-000020.hdr.sgml : 19950601 ACCESSION NUMBER: 0000795425-95-000020 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19950509 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19950524 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARK VII INC CENTRAL INDEX KEY: 0000795425 STANDARD INDUSTRIAL CLASSIFICATION: 4213 IRS NUMBER: 431074964 STATE OF INCORPORATION: MO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-14810 FILM NUMBER: 95541802 BUSINESS ADDRESS: STREET 1: 10100 NW EXECUTIVE HILLS BLVD STREET 2: STE 200 CITY: KANSAS CITY STATE: MO ZIP: 64153 BUSINESS PHONE: 8168910500 FORMER COMPANY: FORMER CONFORMED NAME: MNX INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: MNX TRUCKING DATE OF NAME CHANGE: 19870512 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM 8-K CURRENT REPORT -------------------- Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest reported event) May 9, 1995 ----------- MARK VII, INC. ------------------------------------------------------ (Exact name of Registrant as specified in its charter) Missouri ---------------------------------------------- (State or other jurisdiction of incorporation) 0-14810 43-1074964 - ------------------------ ---------------------------------- (Commission File Number) (IRS Employer Identification No.) 10100 N.W. Executive Hills Blvd., Suite 200, Kansas City, Missouri - ------------------------------------------------------------------ (Address of principal executive offices) 64153 ---------- (Zip Code) Registrant's telephone number, including area code (816)891-0500 ------------- Not Applicable ------------------------------------------------------------- (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS On May 9, 1995, the Registrant issued a press release announcing the filing of a registration statement with the Securities and Exchange Commission relating to a previously announced proposed underwritten secondary offering of shares of common stock by Roger M. Crouch, a director of the Registrant, and certain relatives of Mr. Crouch and related entities. As described in the press release, in connection with the closing of the proposed secondary offering, Mr. Crouch will resign as a director of the Registrant. Pursuant to an existing employment agreement, however, Mr. Crouch remains available to serve the Registrant on an as-requested basis and remains subject to a non-compete agreement. A copy of such agreement is attached as an exhibit hereto, along with the employment agreements between the Registrant and the named executive officers, excluding Mr. Musacchio, whose agreement is subject to further negotiation and which is expected to be substantially similar to the agreement with Mr. Liss. The foregoing is qualified in its entirety by reference to the exhibits hereto. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits Exhibit 1 Press Release issued May 9, 1995 by the Registrant Exhibit 2 Employment and Noncompete Agreement between Roger M. Crouch and the Registrant dated as of December 23, 1992 Exhibit 3 Employment and Noncompete Agreement between R.C. Matney and the Registrant dated as of April 1, 1992. Revised Addendum to Employment and Noncompete Agreement between R.C. Matney and the Registrant dated as of July 1, 1994 Exhibit 4 Employment and Noncompete Agreement between J. Michael Head and the Registrant dated as of August 1, 1992. Addendum to Employment and Noncompete Agreement between J. Michael head and the Registrant dated as of February 1, 1995 Exhibit 5 Employment and Noncompete Agreement between David H. Wedaman and the Registrant dated as of January 1, 1992 Exhibit 6 Employment and Noncompete Agreement between Robert E. Liss and Jupiter Transportation, Inc., an indirect wholly owned subsidiary of the Registrant, dated as of July 1, 1994 Exhibit 7 Employment and Noncompete Agreement between James T. Graves and the Registrant dated as of August 1, 1992 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. MARK VII, INC. By: /s/ James T. Graves ------------------------- Name: James T. Graves Title: Vice Chairman, General Counsel and Secretary EX-1 2 PRESS RELEASE Kansas City, MO, May 9, 1995 -- Mark VII, Inc. (Nasdaq NMS: MVII) announced that it has filed with the Securities and Exchange Commission on behalf of Roger M. Crouch, a director of the Company, and certain relatives and related entities of Mr. Crouch a registration statement relating to the previously announced proposed underwritten secondary offering of up to 1,269,613 shares of Common Stock of the Company. The offering will be made with respect to currently outstanding shares and will not include the issuance of any additional shares by the Company. It is expected that Mr. Crouch will bear all the expenses of the secondary offering. The Company will not receive any of the proceeds from the offering. Alex. Brown & Sons Incorporated will act as underwriter. In connection with the closing of the proposed secondary offering, Mr. Crouch will resign as a director of the Company. Pursuant to an existing employment agreement, however, Mr. Crouch remains available to serve the Company on an as-requested basis and remains subject to a non-compete agreement. The registration statement relating to these securities has not yet become effective. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of such securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. CONTACT: J. Michael Head (816) 891-0500 EX-2 3 EMPLOYMENT AND NONCOMPETE AGREEMENT 23rd day of December, 1992, is made by and among ROGER M. CROUCH, a resident of the State of Missouri ("Executive"); and MNX INCORPORATED, a Missouri corporation (THIS AGREEMENT, dated this "Employer"). RECITALS A. Employer and its 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 Employer's subsidiary corporations. B. Executive desires to continue to be employed by Employer as Vice Chairman of the Board of Directors and Chairman of the Executive Committee (hereafter collectively "Vice Chairman"), 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 with Employer for a period of ten (10) years subsequent to the date hereof , unless sooner terminated as provided in Section 5. 2. Duties and Authority. 2.01 Duties and Position of Executive. Executive shall undertake and assume 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 the Vice Chairman 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 Vice Chairman 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 the majority of his time and attention to performance of the above described 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 which will not be unreasonably withheld. It is also understood that the Executive is not hereby precluded from engaging in appropriate civic, charitable or religious activities or from devoting less than a majority of his 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 the Executive as Vice Chairman to another person, the Executive shall thereafter serve as a member of the Executive Committee of MNX, engaged in the consultation, performance and management of those specific projects which are acceptable to the Executive and to 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 Two Hundred Twenty-five Thousand and No/100 Dollars ($225,000) per year ("Base Salary"), payable in equal bi-weekly installments on alternate Fridays. Employer's Board of Directors shall have the complete discretion to increase or decrease Executive's salary at any time; however, it shall not be reduced to less than the original Base Salary. Executive shall be given equal consideration, along with other members of senior executive management, for merit, longevity, and cost of living salary increases. 3.02 Bonus. In addition to the Base Salary, Executive shall receive a bonus of $210,000 in cash on the date of this Agreement. Executive shall participate equally in any senior executive management bonus program established by Employer. 3.03 Fringe Benefits. Executive shall receive all of the fringe benefits Employer offers to other members of senior executive management. 3.04 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. 3.05 Stock Options. By separate document, Employer has provided Employee with an option to purchase 60,000 shares of Employer's common stock, exercisable at not more than $8.25 per share, 30,000 of which vested February 3, 1992 with the remainder vesting in 5 equal annual installments , commencing February 3, 1993 , exercisable one year after vesting. All such options shall lapse 10 years subsequent to grant. 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, for a period of three (3) years after the termination of this Agreement, Executive shall not have any interest in or be engaged ("Prohibited Activity") 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 in the future conducts during the term of operation of this Section 4.02. 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 if such arbitrator(s) or 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 ten (10) years subsequent to the date hereof; 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; or g) At Executive's option, on the date Employer commits any act that is a material breach of this Agreement. 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) 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 determination 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 material dishonesty toward Employer, or (iv) Executive's conviction of any felony involving dishonest, or immoral conduct. 6. Payments Upon Termination. 6.01 Payments Upon Executive's Death or Disability. Upon the termination of this Agreement pursuant to Section 5.01 (b) (death) or Section 5.01 (c) (disability), 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 thru the period ending on the tenth anniversary of this Agreement . 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. 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. 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) Employer may elect to continue the obligations of Executive set forth in Section 4 (confidentiality noncompete and nonemployment) 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 St. Joseph, Missouri, 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: Roger M. Crouch Lathrop, Missouri 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 ("Employer") By: /s/ R.C. Matney ----------------------------- R.C. Matney, Chairman /s/ Roger M. Crouch ----------------------------- Roger M. Crouch, in his individual capacity "Executive" EX-3 4 EMPLOYMENT AND NONCOMPETE AGREEMENT THIS AGREEMENT, dated this first day of April 1, 1992, is made by and among R.C. Matney, a resident of the State of Indiana ("Executive"); and MNX INCORPORATED, a Missouri corporation ("Employer"). RECITALS A. Employer 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 Employer's subsidiary corporations. B. Executive desires to be employed by Employer as Chairman, 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 ten (10) years subsequent to the date hereof , unless sooner terminated as provided in Section 5. The parties hereto entered into any earlier "Employment and Noncompete Agreement" dated March 31, 1989 which is superceded in its entirety by this Agreement. 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 the Chairman 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 Chairman 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. 2.02 Full Time Employment. 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. Executive shall devote his full time and attention to performance of the above described duties; provided, however, he shall be allowed to engage in appropriate civic, charitable or religious activities and to devote a reasonable amount of time to passive private investments. 2.03 Reassignment of Duties of Chairman. In the event the Employer's Board of Directors shall reassign the duties of the Executive as Chairman to another person, the Executive shall thereafter serve as President of Mark VII Transportation Co. (a wholly owned subsidiary of Employer) and as a member of the Executive Committee of MNX, engaged in the performance and management of marketing services of Mark VII and the management and administration of those specific projects which are acceptable to the Employee and which are consistent with his experience and competence. Employer undertakes and agrees to make such reassignment of the duties of Chairman should Executive so request at any time following the seventh anniversary of this Agreement. 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 Seventy-Five Thousand and No/100 Dollars ($175,000) per year ("Base Salary"), payable in regular equal installments not less often than monthly. Employer's Board of Directors shall have the complete discretion to increase or decrease Executive's salary at any time; however, it shall not be reduced to less than the original Base Salary. Executive shall be given equal consideration, along with other members of senior executive management, for merit, longevity, and cost of living salary increases. 3.02 Bonus. Commencing January 1, 1992, Executive shall participate equally in any senior executive management bonus program established by Employer. 3.03 Fringe Benefits. Executive shall receive all of the fringe benefits Employer offers to other members of senior executive management. 3.04 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. 3.05 Stock Options. By separate document, Employer shall provide Employee with an option to purchase 60,000 shares of Employer's common stock, exercisable at not more than $8.25 per share, of which 30,000 shall vest immediately with the balance vesting in 5 equal annual installments , commencing January 1, 1993, exercisable one year after vesting. All such options shall lapse 10 years subsequent to vesting. 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, for a period of three (3) years after the termination of this Agreement, 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 ten (10) years subsequent to the date hereof; 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 Company'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. 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. 6. Payments Upon Termination. 6.01 Payments Upon Executive's Death or Disability. Upon the termination of this Agreement pursuant to Section 5.01 (b) (death) or Section 5.01 (c) (disability), 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 thru the period ending on the tenth anniversary of this Agreement . 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) Employer may elect to continue the obligations of Executive set forth in Section 4 (confidentiality noncompete and nonemployment) 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 Indianapolis, Indiana, 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: R.C. Matney Indianapolis, Indiana 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. /s/ R.C. Matney --------------------------------------- R.C. Matney, in his individual capacity (Executive) MNX INCORPORATED a Missouri corporation By: /s/ J. Michael Head --------------------------------------- (Employer) J. Michael Head President and Chief Executive Officer - ---------------------------------------------------------------------- REVISED ADDENDUM TO EMPLOYMENT AND NONCOMPETE AGREEMENT R.C. MATNEY THIS AGREEMENT, dated this 1st day of July, 1994, is made by and among R.C. Matney, a resident of the State of Indiana ("Executive"), and Mark VII, Inc., a Missouri corporation. ("Employer"). RECITALS Executive and Employer previously entered into "Employment and Noncompete Agreement" as of April 1, 1992, of which a true and correct copy is attached ("Agreement"). The parties hereto undertake and agree to modify said Agreement to the extent expressly stated herein. In all other respects, said Agreement shall remain as originally stated. AGREEMENTS In consideration of the mutual promises, covenants and agreements contained herein and in the underlying Agreement, the parties do hereby further agree as follows: 1. Base Salary. The base salary of Executive shall be $235,000 a year commencing July 1,1994. 2. Annual Performance Bonus. Commencing in 1995, Executive shall be paid two annual cash bonuses, neither of which shall exceed half of his base salary. Once such bonuses shall be paid immediately following the completion of the annual audit for the fiscal year in an amount equal to that percentage of the base salary of the Executive by which consolidated income from continuing operations before income tax for the fiscal year 1994 exceeds $4,199,325 (the fiscal 1993 amount) plus 25% each year thereafter. However, for any fiscal year during which a 25% increase in consolidated income from continuing operations before income tax is not attained, this bonus shall not be paid. The other bonus shall be paid immediately following June 30 each year in an amount equal to that percentage of the base salary of the Executive by which the increase (if any) in the per share price of the common stock of Mark VII from July 1, 1994 to June 30, 1995, and each subsequent year thereafter during the term hereof, exceeds the increase in the average of per share prices of the common stock of certain other companies in the Company's industry (the "transportation services peer group"). Employer's Board of Directors shall indentify those companies deemed to constitute Employer's "peer group" from time to time in its direction. It is agreed, however, that initially said peer group is deemed by said Board to constitute the following companies: Air Express Internationl Harper Group Expediters International Intertrans Fritz Company 3. Stock Options. In addition to options to purchase 60,000 shares of Employers common stock set forth at 3.05 of Agreement by separate instrument Employer shall provide Executive with options to purchase an additional 250,000 shares of Employer's common stock, exercisable at a price equal to $14.00, the closing price on July 1, 1994. Such options will vest at the rate of 31,250 shares a year commencing with the effective date of this Agreement and shall lapse five years subsequent to vesting. It is agreed and understood that this grant of options is subject to (1)stockholder approval of an increase in the number of shares of common stock reserved for issuance upon the exercise of options, a proposal which has been recommended by the Board to the stockholders for their vote at the annual meeting of the shareholders of Mark VII, Inc. which is expected to be conducted in September of 1994 and (2) consummation of the sale of assets by Missouri-Nebraska Express to Swift Transportation Co., Inc. on or before December 31, 1994. 4. Duties and Position of Executive. Employer's Board of Directors has elected Executive as Chairman, President and Chief Executive Officer. Executive herewith agrees to undertake and assume responsibility for the duties of such offices. IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the day and year first above written. "EXECUTIVE" "EMPLOYER" MARK VII, INC. a Missouri corporation /s/ R. C. Matney By: /s/ James T. Graves - ---------------------------------- ------------------------------ R.C. Matney James T. Graves, Vice Chairman EX-4 5 EMPLOYMENT AND NONCOMPETE AGREEMENT THIS AGREEMENT, dated this first day of August, 1992, is made by and among J. MICHAEL HEAD, a resident of the State of Missouri ("Executive"); and MNX INCORPORATED, a Missouri corporation ("Employer"). RECITALS A. Employer 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 Employer's subsidiary corporations. B. Executive desires to be employed by Employer as its President and Chief Executive Officer 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 three (3) years subsequent to the date hereof , 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 the President and Chief Executive Officer 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 President and Chief Executive Officer 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 the above described 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 which will not be unreasonably withheld. The Board has approved the participation of Executive in the Dave Clark Company and Head/Clark Enterprises, Inc. which is involved in cattle feeding, as well as the ownership of two power units which are leased to Belger Cartage, a carrier not competitive to the present activities of Employer. It is also understood that the Executive is not hereby precluded from engaging in appropriate civic, charitable or religious activities or from devoting a reasonable 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 the Executive as President and Chief Executive Officer to another person, the Executive shall thereafter serve as Executive Vice President and as a member of the Executive Committee of MNX, engaged in the consultation, performance and management of accounting and financial services of Employer and the performance of those specific projects which are acceptable to the Executive and to 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 Seventy-five Thousand and No/100 Dollars ($ 175,000) per year ("Base Salary"), payable in equal bi-weekly installments on alternate Fridays. Employer's Board of Directors shall have the complete discretion to increase or decrease Executive's salary at any time; however, it shall not be reduced to less than the original Base Salary. Executive shall be given equal consideration, along with other members of senior executive management, for merit, longevity, and cost of living salary increases. 3.02 Bonus. Commencing January 1, 1992, Executive shall participate equally in any senior executive management bonus program established by Employer. 3.03 Fringe Benefits. Executive shall receive all of the fringe benefits Employer offers to other members of senior executive management. 3.04 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. 3.05 Stock Options. By separate document, Employer shall provide Employee with an option to purchase 60,000 shares of MNX common stock, exercisable at not more than $8.25 per share, of which the options for 30,000 shares shall vest January 1, 1992 with the remainder vesting in 5 equal annual installments , commencing January 1, 1997, all exercisable one year after vesting. All such options shall lapse 10 years subsequent to vesting. 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, for a period of three (3) years after the termination of this Agreement, 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 2.02. 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 three (3) years subsequent to the date hereof; 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) At the Company'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) On the date Executive resigns. 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. 6. Payments Upon Termination. 6.01 Payments Upon Executive's Death, Disability or Resignation. Upon the termination of this Agreement pursuant to Section 5.01 (b) (death), Section 5.01 (c) (disability) or Section 5.01 (h) (resignation), 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, 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) (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 thru the period ending on the third anniversary of this Agreement . 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), Section 5.01 (f) (breach by Executive) or Section 5.01 (h) (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) Employer may elect to continue the obligations of Executive set forth in Section 4 (confidentiality noncompete and nonemployment) 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 St. Joseph, Missouri, 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: J. Michael Head Route 2, Box 364 Smithville, Missouri 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 (Employer) /s/ J. Michael Head ---------------------- J. Michael Head, in his individual capacity (Executive) - ---------------------------------------------------------------------- ADDENDUM TO EMPLOYMENT AND NONCOMPETE AGREEMENT J. Michael Head THIS AGREEMENT, dated this 1st day of February, 1995, is made by and between J. Michael Head, a resident of the State of Missouri ("Executive") and Mark VII, Inc., a Missouri Corporation ("Employer"). RECITALS Executive and Employer previously entered into "Employment and Noncompete Agreement" as of August 1, 1992, of which a true and correct copy is attached ("Agreement"). The parties hereto do hereby undertake and agree to modify said Agreement to the extent expressly stated herein. In all other respects, said Agreement shall remain as originally stated. AGREEMENT In consideration of mutual promises, covenants and agreements contained herein and in the underlying Agreement, the parties do hereby further agree as follows: 1. Term of Employment. The initial term of Employment shall be until September 30, 1996 after which further employment shall continue subject to all of the provisions of this Agreement (excluding Paragraph 5.01(a)) until either party gives the other 60 days written notice of termination. 2. Duties and Position of Executive. Employer's Board of Directors has elected Executive as Executive Vice President, Finance and Administration and as President of its Mark VII Risk Management Services Division. Executive hereby undertakes and agrees to perform the duties related to those positions. 3. Additional Options. In addition to those options referred to in Paragraph 3.05 of the Agreement, by separate instrument, Employer shall also provide Employee with an option to purchase 10,000 shares of Employer's common stock, exercisable at the price equal to $14 per share, the closing price on July 1, 1994. It is agreed and understood that this grant of options is subject to (1)stockholder approval of an increase in the number of shares of common stock reserved for issuance upon the exercise of options, a proposal which has been recommended by the Board to the Stockholders for their vote at the annual meeting of the shareholders of Mark VII, Inc., which is expected to be conducted in September of 1994; and (2) closing of the Asset Sale. Said options shall be vested as of the closing of the Asset Sale and shall lapse five years thereafter. 4. Twelve Months Base Salary and Benefits Subsequent to Termination. Upon termination of employment for any reason other than cause (Section 5.01(d)), insubordination (Section 5.01(e)) or breach by Executive (Section 5.01(f)) Executive shall be paid his then prevailing base salary and fringe benefits for a period of twelve subsequent months subject only to the provisions of Section 6.04. IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the day and year first above written. "EXECUTIVE" /s/ J. Michael Head -------------------- J. Michael Head "EMPLOYER" MARK VII, INC., a Missouri corporation By: /s/ R.C. Matney ----------------------- R.C. Matney, Chairman EX-5 6 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) EX-6 7 EMPLOYMENT AND NONCOMPETE AGREEMENT THIS AGREEMENT, dated this first day of July, 1994, is made by and among ROBERT E. LISS, a resident of the State of Arizona ("Executive"); and JUPITER TRANSPORTATION, INC., a Kansas corporation ("Employer"), a wholly owned subsidiary of MARK VII TRANSPORTATION COMPANY, INC., a Delaware corporation ("Mark VII"). RECITALS A. Employer, Mark VII, 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 Mark VII and its subsidiary corporations. B. Executive desires to continue to be employed by Employer as President 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 with Employer until 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 a President of a subsidiary. Executive has been elected President of Jupiter Transportation, Inc. 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 Business Units/Profit Centers Assigned to Executive. (a) Executive shall have specific profit/loss management responsibility for profit centers or business units which are, from time to time, assigned to him by the Chairman or the Board of Directors of Mark VII subject to Executive's consent. Once so assigned and accepted, a profit center may not be reassigned or withdrawn from the scope of Executive's management responsibility without his consent. (b) All business opportunities arising out of or related to logistics and/or transportation services which are encountered or developed by Executive belong to Mark VII. In each instance, the Board or senior management or Mark VII shall determine whether or not the business opportunity or venture shall be pursued, and if so, under what terms and conditions and whether or not it is to be assigned to the management supervision of Executive pursuant to this agreement. (c) Each business opportunity, profit center or business unit will be conducted pursuant to an annual business plan approved by the Board or senior management of Mark VII. Following any month when plan results are not being attained, Mark VII has the unilateral right to discontinue the business unit, profit center or venture with no further claim of interest on the part of Executive. 2.03 Other Employees or Agents of Mark VII. Executive has no authority to engage or employ other agents or employees of Employer, Mark VII or any of its subsidiaries without the advance express consent of the Board of Employer. Executive may not elect, without advance approval of senior management of Mark VII, to share his bonus with any other employee or agent of Mark VII. No other agent or employee of Mark VII shall be permitted to utilize the business units or profit centers assigned to the management of Executive to provide transportation services or logistics support to customers assigned, for commission purposes, to that employee or agent, without advance approval of senior management of Mark VII. 2.04 Time Devoted to Employment. Executive shall devote full time and attention to performance of assigned employment duties. 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 Executive is not hereby precluded from engaging in limited appropriate civic, charitable or religious activities or from devoting limited time to private investments that do not compete with the business of Employer. 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 Twenty Five Thousand Dollars and No/100 ($125,000) per year ("Base Salary"), in equal weekly installments. The Employer's Board of Directors may increase the salary of Executive at any time; provided, however, that the Board may not reduce the Base Salary specified herein. 3.02 Bonus. In addition to the Base Salary, in each fiscal year (commencing with the fiscal year ending December 31, 1994), Employer will provide a bonus to Executive payable within 90 days following the close of Employer's fiscal year. The annual bonus shall be an amount equal to 25% of the pre-tax profit (computed on the basis of generally accepted accounting principles consistently applied) earned by the business units and profit centers assigned to the management responsibility of Executive. The calculation of pre-tax profit shall incorporate the following factors: (a) In the case of each new business unit or profit center assigned to the management responsibility of Executive, senior management of Mark VII shall determine, on a case by case basis, whether or not the start up losses, or what portion thereof, shall be charged against pre-tax profits earned in other business units assigned to the management supervision of Executive. (b) In no event shall pre-tax profit include rail volume incentive credits or credit for unbilled freight. (c) Each unit will be charged a $7.50 administrative fee for each invoice. (d) Each unit will be charged interest expense on receivables at a rate equal to the current cost of funds borrowed by Mark VII. (e) All customer credit extended must have the prior written approval of the Mark VII accounting office in Indianapolis. Any bad debt resulting from unapproved credit shall be charged in full against the bonus accrual of Executive. (f) As to any transportation service requiring utilization of Mark VII operated equipment (including power units or refrigerated trailers but excluding dry vans), for each quarter in which weekly net operating profit from the utilization of Mark VII equipment is less than $300 per unit a week the 25% bonus will be reduced to 15%. (g) All accounting issues or questions shall be barred on the anniversary date of any transaction in question, subject to no further examination or question thereafter. Any dispute as to any matter related to this contract or the business to which it is related, between Executive and Mark VII, shall be resolved by arbitration rather than judicial proceedings. (h) In any year in which the 25% pre-tax bonus of Executive attains the sum of $800,000, the pre-tax profit of "Big Dog Enterprises", a trade name assigned to Dave Hursey and that of Bill Reed of Park City, Utah, may be excluded from the calculation of the pre-tax profit bonus of Executive to the extent which would reduce the bonus to $800,000 but not further. In each year pre-tax profit shall be reduced by the amount of the following items: (i) All charges of Employer to any affiliated company for services rendered, said services to be charged at cost; (j) Any gain on the sale, casualty or other disposition of any capital asset of the Employer; (k) Any other income which was not the result of ordinary operations of the profit center or business unit. The Board of Directors of Employer shall make the sole and final determination of what constitutes "pre-tax profit" as defined above. 3.03 Car Allowance. Executive shall receive $500 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, for a period of three years after the termination of this Agreement, Executive shall not have any interest, or be engaged by, directly or indirectly, 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) Subject to the provisions of Paragraphs 5.02(c) and 6.02, the term of employment hereunder shall lapse at such time as either the Employer or Executive provides the other with 30 days notice of termination; 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; g) At Executive's option, on the date Employer commits any act that is a material breach of this Agreement; or h) At Employer's option, upon fulfilling the "executive buyout" provisions 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 ninety (90) 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 Executive. In the event the doctors should disagree as to whether 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) "Executive Buyout" includes: 1. The right of Employer to terminate this agreement with no further payment of compensation to Executive in the event the profit centers assigned to the management responsibility of Executive fail, collectively, to earn pre-tax profit (as defined in Paragraph 3.02 above) of $250,000 in 1995 or any calendar year thereafter. 2. Following any calendar year in which the profit centers assigned to Executive collectively earn pre-tax profit of $250,000 or more, Employer may terminate this Agreement by paying Executive an amount equal to three times his previous year's W-2 reported income from Employer, but in no event less than One Million Four Hundred Thousand Dollars ($1,400,000). Such payment shall constitute liquidated damages which Executive hereby agrees to accept as his exclusive remedy for any breach of the obligations of the Employer hereunder hereby waiving any right to punitive or exemplary damages. 3. In the event of termination by Employer subsequent to any year in which profit centers assigned to Executive were, collectively profitable but in which pre-tax profit of at least $250,000 was not attained, Employer may elect to extend provisions of Section 4 hereof pursuant to Paragraph 6.05(b) below only by making advance annual payments to Executive in the amount of Three Hundred Thousand Dollars ($300,000) for the first year, Three Hundred Thousand Dollars ($300,000) for the second year and at Fifty Thousand Dollars ($50,000) for the third year. 4. Employer retains the unilateral right to sell or terminate any business unit assigned to the management of Executive with no further approval or subsequent right of Executive to pre-tax profit bonus beyond the date of sale or termination. Provided, however, that the sale or termination of the a unit devoted to providing service to United Parcel Service or its subsidiaries will require Employer to provide Executive with the benefit of the buyout provisions of this subparagraph (c). 5. Pre-tax profits earned by Dave Hursey, "Big Dog" and Bill Reed of Park City, Utah shall be excluded from the calculation of the $250,000 pre-tax profit standard hereof. 6. Payments Upon Termination. 6.01 Payments Upon Executive's Death, or Disability. Upon the termination of this Agreement pursuant to Section 5.01 (b) (death), or Section 5.01 (c) (disability), 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 Termination for Cause, Insubordination, Resignation or Breach by Executive. Upon termination of this Agreement pursuant to 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, including bonus pursuant to Section 3.02, for twelve months subsequent to the breach. All post-employment compensation paid by Employer under the terms of this Section 6 shall be calculated in the manner set forth in Section 3 hereof and shall constitute liquidated damages which Executive hereby agrees to accept as his exclusive remedy for any breach of the obligations of the Employer hereunder hereby waiving any right to punitive or exemplary damages. 6.04 Payment of Amounts Due Upon Termination and Mitigation. If Executive is entitled to payment of Base Salary, bonus, 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 Executive from any 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) Subject to Section 5.02(c), upon termination of this Agreement pursuant to Section 5.01 (a) (termination), Employer may elect to continue the obligations of Executive set forth in Section 4 (confidentiality, noncompete and nonemployment of other employees) for so long as the Employer continues to provide the current base salary set forth in Section 3.01 and termination payments of Section 5.02 (c), 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. Executive herewith agrees to answer and execute an annual disclosure form "Questionnaire for Directors and Executive Officers of Mark VII, Inc." providing the same information that is required of all other Directors and executive officers of Mark VII directed to the purpose of enabling Employer to assess and provide disclosure of matters required of publicly held companies. 8. Indemnification of Executive The Employer will indemnify 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 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 Scottsdale, Arizona, 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: Jupiter Transportation, Inc. c/o Mark VII Transportation Co., Inc. 201 South Emerson Avenue Suite 130 Greenwood, Indiana 46143 cc: James T. Graves, Vice Chairman and General Counsel Mark VII, Inc. 5310 St. Joseph Avenue St. Joseph, Missouri 64502 Executive: Robert E. Liss 11442 E. Bella Vista Scottsdale, Arizona 85350 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. 9.06 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 Arizona, without considering its laws or rules related to choice of law. 9.07 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 State or Federal Courts of Arizona 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 Arizona. 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. 9.08 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. 9.09 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 trial or appeal, shall be entitled to recover its reasonable attorney's fees, costs and expenses to be paid by the losing party as fixed by the court. 9.10 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 judgment 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. JUPITER TRANSPORTATION, INC. By: /s/ R.C. Matney ----------------------- R.C. Matney, Chairman /s/ Robert E. Liss ----------------------- Robert E. Liss, in his individual capacity (Executive) EX-7 8 EMPLOYMENT AND NONCOMPETE AGREEMENT THIS AGREEMENT, dated this first day of August, 1992, is made by and among JAMES T. GRAVES, a resident of the State of Missouri ("Executive"); MISSOURI-NEBRASKA EXPRESS, INC., an Iowa corporation ("Employer") and MNX INCORPORATED, a Missouri corporation (" MNX"). RECITALS A. Employer and the subsidiaries of MNX are engaged in the business of freight transportation services, both providing and arranging transportation of goods. B. Executive desires to be employed by Employer as its President 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 the date hereof , 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 the President of a company; however, Employer may, for any reason whatsoever, reassign Executive's duties to another person. Executive has been elected as President 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 his full time and attention to performance of the above described assigned employment duties; provided, however, he shall be allowed to engage in the private practice of law for a limited number of clients on a basis that will not interface or conflict with Executive responsibilities under this Agreement. 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 which will not be unreasonably withheld. It is also understood that the Executive is not hereby precluded from engaging in appropriate civic, charitable or religious activities or from devoting a 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 the Executive as President to another person, the Executive shall thereafter serve as Vice Chairman and General Counsel of MNX and as a member of the Executive Committee of MNX, engaged in the performance and management of legal services of Employer and MNX and those specific projects which are assigned to the Executive 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 Seventy Five Thousand and No/100 Dollars ($175,000) per year ("Base Salary"), payable in equal bi-weekly installments on alternate Fridays. Employer's Board of Directors shall have the complete discretion to increase or decrease Executive's salary at any time; however, it shall not be reduced to less than the original Base Salary. Executive shall be given equal consideration, along with other members of senior executive management, for merit, longevity, and cost of living salary increases. 3.02 Bonus. Commencing January 1, 1992, Executive shall participate equally in any senior executive management bonus program established by Employer. 3.03 Fringe Benefits. Executive shall receive all of the fringe benefits Employer offers to other members of senior executive management. 3.04 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. 3.05 Stock Options. By separate document, Employer shall provide Employee with an option to purchase 60,000 shares of Employer's common stock, exercisable at not more than $8.25 per share, which shall vest January 1, 1992, exercisable one year after vesting. All such options shall lapse 10 years subsequent to vesting. 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, for a period of three (3) years after the termination of this Agreement, 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 2.02. 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 the date hereof; 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 Company'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. 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. 6. Payments Upon Termination. 6.01 Payments Upon Executive's Death or Disability. Upon the termination of this Agreement pursuant to Section 5.01 (b) (death) or Section 5.01 (c) (disability), 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 thru the period ending on the fifth anniversary of this Agreement . 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) Employer may elect to continue the obligations of Executive set forth in Section 4 (confidentiality noncompete and nonemployment) 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 and MNX 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 St. Joseph, Missouri, 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 c/o Missouri-Nebraska Express Inc. 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: James T. Graves One Lakeland Drive St. Joseph, MO 64506 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. 9.12 Guaranty of Performance. Upon consummation of this Agreement, by and among the Executive, Employer, and MNX, MNX does hereby guarantee the performance of Employer, its successor and assigns pursuant to the terms and conditions of this Agreement. In consideration of MNX's guarantee as described above, the Employer and Executive hereby agree that MNX will have the option, at its sole discretion, to enforce the provisions of this Agreement. If MNX satisfies Employer's obligations under the terms of this Agreement, MNX shall have all of the rights Employer would have had hereunder absent its breach of this Agreement. 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. MISSOURI-NEBRASKA EXPRESS, INC. By: /s/ J. Michael Head ---------------------------------- (Employer) /s/ James. T. Graves ---------------------------------- James T. Graves, in his individual capacity (Executive) MNX INCORPORATED a Missouri corporation By: /s/ R. C. Matney ---------------------------------- (MNX) -----END PRIVACY-ENHANCED MESSAGE-----