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UNITED STATES
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 event
reported): July
7, 2023
PAM TRANSPORTATION SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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0-15057 |
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71-0633135 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
297 West Henri De Tonti, Tontitown, Arkansas
72770
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including
area code: (479) 361-9111
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N/A |
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(Former name or former address, if changed since last report) |
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Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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o |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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o |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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o |
Pre-commencement communications pursuant to Rule 13c-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $.01 par value |
PTSI |
NASDAQ Global Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company o
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers. |
Employment Agreement with Lance K. Stewart
On July 7, 2023, P.A.M. Transportation Services,
Inc. (the “Company”) entered into a new employment agreement (the “Employment Agreement”) with its Vice President
of Finance, Chief Financial Officer and Treasurer, Lance K. Stewart. The Employment Agreement, which is effective immediately, updates
and replaces the Company’s previous employment agreement with Mr. Stewart entered into prior to his appointment as Chief Financial
Officer of the Company. Under the terms of the Employment Agreement, Mr. Stewart will receive an annual base salary of $378,560 for his
service as Chief Financial Officer. Mr. Stewart’s performance will be reviewed annually for any changes in base salary and eligibility
for a performance bonus.
Pursuant to the Employment Agreement, the Company
may terminate Mr. Stewart’s employment at any time with or without cause. If his employment is terminated by the Company without
“just cause” (as defined in the Employment Agreement), Mr. Stewart will be entitled to receive his base salary for a period
of four months following such termination, provided that Mr. Stewart signs a separation agreement with the Company. The Employment Agreement
also provides Mr. Stewart the right to terminate his employment with the Company upon four months’ prior written notice to the Company.
However, the Company has the right to terminate Mr. Stewart’s employment immediately upon receipt of such notice. In the event of
such termination, Mr. Stewart is entitled to receive his base salary for the four-month period following the Company’s receipt of
his notice of termination. Mr. Stewart’s employment with the Company will be terminated upon his death and may be terminated by
the Company upon his disability. Upon termination due to disability, Mr. Stewart will continue to receive his compensation for a period
of three months after the date of disability, along with any residual bonus earned but not yet paid.
Under the Employment Agreement, Mr. Stewart is
subject to certain covenants with respect to non-solicitation of business that is competitive with the Company’s business or that
of certain affiliated companies under common ownership with the Company and non-solicitation of employees of the Company and the specified
affiliates for a period of 24 months following the termination of Mr. Stewart’s employment with the Company. If Mr. Stewart is terminated
by the Company without “just cause” (as defined in the Employment Agreement), the covenant not to compete will be for a period
of four months following his termination of employment but may be extended by the Company to up to one year. If the Company extends the
covenant not to compete to one year, the Company must extend Mr. Stewart’s base salary payments for the same one-year period. Mr.
Stewart has also agreed to maintain the confidentiality of the Company’s proprietary information.
The foregoing description of the terms and conditions
of the Employment Agreement does not purport to be complete and is qualified in its entirety by the full text of the Employment Agreement,
which is attached hereto as Exhibit 10.1 and is incorporated by reference herein.
Separation and Consulting Agreement with Allen
W. West
On July 10, 2023, the Company entered into a Separation
and Consulting Agreement (the “Separation and Consulting Agreement”), dated as of July 7, 2023, with the Company’s former
Chief Financial Officer, Allen W. West, who resigned from the Company effective June 8, 2023.
Under the terms of the Separation and Consulting
Agreement, Mr. West has agreed to make himself available to advise senior management and consult with the Company as reasonably requested
by the Company from time to time for a one-year period for a monthly consulting fee of $35,771.67. In recognition of his contributions
to the Company, and in consideration of the covenants contained in the agreement and the accompanying release, Mr. West will receive a
cash bonus in the aggregate amount of $1,250,000, payable in five equal semi-annual installments beginning six months after the agreement
becomes effective. The Company has also agreed to repurchase the shares of Company common stock owned by Mr. West (excluding his unvested
restricted shares of common stock which were forfeited upon his resignation) at a price per share equal to the closing market price of
the Company’s common stock on the effective date of the Separation and Consulting Agreement.
The foregoing payments and benefits are subject
to Mr. West having not revoked a customary release of claims in favor of the Company and his compliance with terms and conditions of the
Separation and Consulting Agreement. The Separation and Consulting Agreement will be effective upon expiration of a customary seven-day
revocation period set forth in the accompanying release agreement.
Pursuant to the Separation and Consulting Agreement,
Mr. West will remain subject to certain covenants similar to those contained in his employment agreement with the Company, dated March
7, 2019, with respect to the confidentiality of the Company’s proprietary information and the non-solicitation of employees or business
that is competitive with the Company’s business or that of certain affiliated companies under common ownership with the Company
for a 12-month period following the effective date of his resignation from the Company. The Separation and Consulting Agreement also contains
customary cooperation and mutual non-disparagement provisions.
The foregoing description of the terms and conditions
of the Separation and Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text
of the Separation and Consulting Agreement, including the accompanying release agreement, a copy of which is attached hereto as Exhibit
10.2 and is incorporated by reference herein.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
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.
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P.A.M. TRANSPORTATION SERVICES, INC. |
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(Registrant) |
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Date: July 13,
2023 |
By: |
/s/ Joseph A. Vitiritto |
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Joseph A. Vitiritto
President and Chief Executive Officer |
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement (“Agreement”)
is entered into as of July 7, 2023, by and between PAM Transportation Services, Inc. ("COMPANY") and Lance Stewart (“EMPLOYEE”),
and the parties therefore agree as follows:
Subject to the terms and conditions
contained in this Agreement and during the Term of this Agreement (as defined below), COMPANY hereby employs EMPLOYEE in the position
of Chief Financial Officer with such duties and responsibilities as are commensurate with such office and may from time-to-time be assigned
to EMPLOYEE by COMPANY.
EMPLOYEE hereby accepts such
employment as a full time employee, and while employed, shall devote his or her full business time, skills, energy and attention to the
business of COMPANY, shall perform his or her duties in a diligent, loyal, businesslike and efficient manner, all for the sole purpose
of enhancing the business of COMPANY, and in a manner consistent with all COMPANY policies, resolutions and directives from time to time
stated or made by the COMPANY. Moreover, EMPLOYEE shall perform such services and duties as are consistent with EMPLOYEE’s position,
are necessary or appropriate for the operation and management of COMPANY, and as are normally expected of persons appointed to executive
positions in the business in which COMPANY is engaged.
1. Compensation
for Services.
COMPANY shall pay to EMPLOYEE
an annual base salary of $378,560.00 (“Base Salary”) as COMPANY’s Chief Financial Officer.
Base Salary shall be payable
in equal installments pursuant to COMPANY’s payroll system in effect from time to time, less all applicable taxes required to be
withheld by COMPANY pursuant to federal, state or local law.
EMPLOYEE will be reviewed
annually for changes in Base Salary and eligibility for a performance bonus, if any.
2. Benefits.
EMPLOYEE shall be entitled
to fringe benefits provided by COMPANY for its employees in the normal course of business.
3. Business
Expenses.
COMPANY shall reimburse EMPLOYEE
for all reasonable and necessary business expenses incurred by EMPLOYEE in the performance of his or her duties hereunder with respect
to travel, entertainment and other business expenses, subject to COMPANY’s business expense policies in effect from time to time,
including its procedures with respect to the manner of incurring, reporting and documenting such expenses.
4. Proprietary
Information
a. EMPLOYEE
shall forever hold in the strictest confidence and not disclose to any person, firm, corporation or other entity any of COMPANY’s
Proprietary Information (as defined below) or any of COMPANY’s Records (as defined below) except as such disclosure may be required
in connection with EMPLOYEE’s work for COMPANY and as expressly authorized by COMPANY in writing.
b. For
the purposes of this Agreement, the term “Proprietary Information” shall mean intercompany publications, unpublished works,
plans, policies, computer and information systems, software and other information and knowledge relating or pertaining to the products,
services, sales or other business of COMPANY or its successor, affiliates and customers in any way which is of a confidential or proprietary
nature, the prices it obtains or has obtained from the sale of its services, its manner of operation, its plans, processes or other data,
contracts, information about contracts, contract forms, business applications, costs, profits, tax information, marketing information,
advertising methods, customers, potential customers, brokers, potential brokers, employees, matters of a technical nature (including inventions,
computer programs, concepts, developments, contributions, devices, discoveries, software and documentations, secret processes or machines,
including any improvements thereto and know-how related thereto, and research projects, etc.), and other information not generally available
to the public, without regard to whether all of the foregoing matters will be deemed confidential, material or important. Anything to
the contrary notwithstanding, the parties hereto stipulate that any and all knowledge, data and information gathered by EMPLOYEE through
this Agreement, his/her employment with COMPANY and the operation of the business of COMPANY is deemed important, material or confidential,
and gravely affects the effective and successful conduct of the business of COMPANY and COMPANY 's good will; could not without great
expense and difficulty be obtained or duplicated by others who have not been able to acquire such information by virtue of employment
with COMPANY; and that any breach of the terms of this Paragraph 4 shall be deemed a material breach of this Agreement.
c. EMPLOYEE
agrees that all creative work, including without limitation, designs, drawings, specifications, techniques, models, processes and software
prepared or originated by EMPLOYEE during or within the scope of employment whether or not subject to protection under the federal copyright
or other law constitutes work made for hire all rights to which are owned by COMPANY. Moreover, EMPLOYEE hereby assigns to COMPANY all
right, title and interest whether by way of copyright, trade secret, patent or otherwise, and all such work whether or not subject to
protection by copyright or other law.
d. Upon
termination of employment with COMPANY or at any other time requested by COMPANY, EMPLOYEE shall immediately return to COMPANY and not
retain any copies of, any records, data, lists, plans, policies, publications, computer and information systems, files, diagrams and documentation,
data, papers, drawings, memos, customer records, reports, correspondence, note books, service listing and any other business record of
any kind or nature (including without limitation records in machine-readable or computer-readable forms) relating to Proprietary Information
(“Records”).
e. EMPLOYEE
acknowledges that, to the extent COMPANY derives independent economic value from any of its Proprietary Information and takes reasonable
measures to maintain its secrecy, such Proprietary Information will be considered a trade secret under applicable law. EMPLOYEE further
acknowledges that under the Defend Trade Secrets Act of 2016, an individual may not be held criminally or civilly liable under any federal
or state trade secret law for the disclosure of a trade secret that: (1) is made (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected
violation of law; or (2) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. EMPLOYEE
further acknowledges that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law
may disclose the employer's trade secrets to the attorney and use the trade secret information in the court proceeding if the individual:
(1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.
5. Covenant
Not To Solicit / Not To Compete:
a. As a material part of the consideration
for this Agreement, EMPLOYEE agrees for a twenty-four (24) month period following the termination of EMPLOYEE's employment with COMPANY
for any reason; EMPLOYEE agrees that he or she will not, either solely or jointly with, or as manager or agent for, any person, corporation,
trust, joint venture, partnership, or other business entity, directly or indirectly, approach or solicit for business, accept business
from, divert business from, or otherwise interfere with any COMPANY or Affiliated Companies relationship with, any person or entity (or
legal successor to such person or entity) that Employee had any direct contact with while employed by the COMPANY and that: (a) has been
a customer of COMPANY or any of the Affiliated Companies at any time within the six (6) month period prior to EMPLOYEE’s termination;
or (b) to whom COMPANY or one of the Affiliated Companies had made a proposal within the six (6) month period prior to EMPLOYEE’s
termination. In the event EMPLOYEE is terminated pursuant to Section 8 subsection (d) the Covenant Not to Compete will be for a period
of four (4) months unless COMPANY elects the option to extend the Covenant Not To Compete up to one (1) year provided the separation agreement
in Section 8 subsection (d) provides for compensation up to one (1) year. Anything contrary notwithstanding, this Paragraph 5 shall survive
after the termination or the earlier cancellation of this Agreement.
b. Both
parties agree that the restrictions in this section are fair and reasonable in all respects including the length of time that they shall
remain in effect and that COMPANY’s employment of EMPLOYEE upon the terms and conditions of this Agreement is fully sufficient consideration
for EMPLOYEE's obligations under this section.
c. If
any provisions of this section are ever held by a Court to be unreasonable, the parties agree that this section shall be enforced to the
extent it is deemed to be reasonable.
6. No
Interference With Employment Relationships
EMPLOYEE agrees that,
during his or her employment, and for a period of twenty-four (24) months after his/her employment has terminated, for any reason, EMPLOYEE
will not, directly or indirectly, solicit for employment, hire, or offer employment to, or otherwise aid or assist any person or entity
other than COMPANY, in soliciting for employment, hiring, or offering employment to: (a) any employee of COMPANY, Affiliated Companies,
or any independent contractor engaged by COMPANY or Affiliated Companies; or (b) any former employee or independent contractor of COMPANY
or Affiliated Companies who was employed, or engaged, by COMPANY or Affiliated Companies within six (6) months before or after the cessation
of EMPLOYEE’s employment. In the event EMPLOYEE hires an employee of COMPANY, COMPANY shall be compensated at a fee equal to 30%
of the EMPLOYEE's first year's gross compensation. This paragraph 6 also applies to employees of companies on Exhibit A.
7. Equitable
Relief And Remedies At Law
EMPLOYEE acknowledges that
COMPANY would suffer unique and irreparable injury in the event of a breach of the covenants contained in Sections 4, 5 and 6 of this
Agreement, which breach could not be adequately compensated by the payment of damages alone. Accordingly in the event of any such breach
by EMPLOYEE, EMPLOYEE agrees that this Agreement may be enforced by a decree of specific performance or an injunction without the necessity
of posting a bond in addition to any remedies available at law, including damages arising out of or relating to a breach of those covenants,
and that any remedy which COMPANY might have at law would be inadequate by itself.
8. Termination
of Agreement
a. Without
limitation of any other remedy available to COMPANY, whether in law or in equity, EMPLOYEE’s employment relationship shall terminate
immediately without any further liability of COMPANY to EMPLOYEE, upon written notice from COMPANY to EMPLOYEE, for Just Cause. For purpose
of this Agreement, “Just Cause” means: conviction of a crime, moral turpitude, gross negligence in the performance of duties,
intentional failure to perform duties, failure to perform duties as designated in this agreement, insubordination or dishonesty. In the
event of EMPLOYEE’s termination pursuant to this Section 8(a), COMPANY shall have no obligation to pay Base Salary, bonuses, or
benefits after date the employment relationship is terminated.
b. EMPLOYEE’s
employment relationship shall terminate immediately upon death of EMPLOYEE.
c. EMPLOYEE
agrees to submit to a medical examination at any time at COMPANY's request and expense. The medical examination will be related to EMPLOYEE's
job and consistent with a business necessity of COMPANY. This Agreement may be terminated by COMPANY immediately upon written notice to
EMPLOYEE if the examination reveals that EMPLOYEE is unable to perform the essential functions of this Agreement even with a reasonable
accommodation. The Agreement may also be terminated if, for a period of three (3) consecutive months, EMPLOYEE is unable to perform the
essential functions of the Agreement even with a reasonable accommodation. Upon such termination due to medical disability, EMPLOYEE's
compensation shall be continued for three (3) months from the date of disability. In addition, EMPLOYEE will receive any residual bonus
earned but not paid. Residual bonus to be paid in normal course of business
d. Upon
the determination by COMPANY that the best interests of COMPANY would be served, COMPANY shall have the further right to terminate EMPLOYEE’s
employment relationship immediately or at any time, at its option upon written notice to EMPLOYEE, without Just Cause. If EMPLOYEE is
terminated pursuant to this Section 8(d), EMPLOYEE shall be entitled to receive only Base Salary for a period of four (4) months following
such termination, provided that EMPLOYEE signs the provided Separation Agreement (similar to the attached separation agreement). If COMPANY
elects to extend the Covenant Not To Compete up to one (1) year they agree to extend Base Salary up to one (1) year. These payments shall
not constitute employment for purpose of Section 5.
e. Any
compensation payable to EMPLOYEE pursuant to this Section 8 following termination pursuant to subsection (d) of this Section 8 shall be
reduced by the amount of any compensation earned by EMPLOYEE in any employment or consulting he/she may undertake during said period that
constitutes a violation of Section 7 respecting non-competition.
f. Upon
four (4) months’ prior written notice to COMPANY at any time, EMPLOYEE shall have the right to terminate his/her employment relationship
with COMPANY at his/her option. Upon receipt of such notice, COMPANY shall have the option to terminate EMPLOYEE’s employment relationship
immediately upon written notice to EMPLOYEE. In the event of termination pursuant to this Section 8(f), EMPLOYEE shall be entitled to
receive Base Salary only through the four (4) month period following EMPLOYEE’s notice of termination. The time period on the covenant
not to compete shall commence at the end of the four (4) month period, and EMPLOYEE shall also be bound by the covenant not to compete
during the four (4) month period he/she is receiving Base Salary. EMPLOYEE shall be liable for all costs and expenses incurred by COMPANY
for the failure to give four (4) months' notice.
g. Upon
termination of this Agreement by COMPANY, EMPLOYEE shall, without a claim for compensation, provide COMPANY with written resignations
from any and all offices held by his/her in or at the request of COMPANY, and in the event of his/her failure to do so, COMPANY is hereby
irrevocably authorized to be, or designated as EMPLOYEE’s attorney in fact, to act in his/her name and in his/her behalf to execute
such resignations.
9. No
Restriction on Performance of Services Contemplated by Agreement
EMPLOYEE represents and warrants
to COMPANY that: (i) EMPLOYEE is under no contractual or other restriction which would give a third party a legal right to assert
that EMPLOYEE would not be legally permitted to perform the services contemplated by this Agreement; and (ii) by entering into this
Agreement EMPLOYEE has not breached, and by performing the services contemplated by this Agreement, shall not breach, any Agreement or
duty relating to proprietary information of another person or entity. It shall be considered cause for termination under Section 8(a)
if the EMPLOYEE is under a contractual or other restriction which prevents the EMPLOYEE from performing services upon which they are hired
to perform.
10. Severability
In case any one or more of
the provisions hereof shall be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein. To the extent possible, there shall be deemed substituted such other provision as will most nearly accomplish
the intent of the parties, to the extent permitted by applicable law.
11. Entire
Agreement
This Agreement embodies all
the representations, warranties, covenants and agreements of the parties in relation to the subject matter hereof, and no representations,
warranties, covenants, understandings, or agreements, unless expressly set forth herein or in an instrument in writing signed by the party
to be bound thereby which makes reference to this Agreement, shall be considered effective.
12. No
Rights in Third Parties
Nothing herein expressed or
implied is intended to, or shall be construed to confer upon, or give to any person, firm or other entity other than the parties hereto
any rights or remedies under this Agreement, except as provided in Section 14.
13. Assignment
COMPANY may assign its rights
and delegate its responsibilities under this Agreement to any affiliated company or to any corporation which acquires all or substantially
all of the operating assets of COMPANY by merger, consolidation, dissolution, liquidation, combination, sale or transfer of assets or
stock or otherwise. EMPLOYEE shall not be entitled to assign his or her rights or delegate his or her responsibilities under this Agreement
to any person.
14. Payment
to Estate
No person, firm or entity
shall have any right to receive any payments owing to EMPLOYEE hereunder, except that EMPLOYEE’s estate shall be entitled to receive
a final payment of installment of Base Salary for services rendered to COMPANY through date of death, reimbursement for any business expenses
previously incurred by EMPLOYEE for which he or she would have been entitled to reimbursement hereunder, and any residual bonus earned
but not paid. Any residual bonus shall be paid in normal course of business.
15. Amendment
No modification or amendment
of this Agreement shall be binding unless executed in writing by each of the parties hereto.
16. Survival
of Covenants
Without limitation of any
other provisions of this Agreement, all representations and warranties set forth in this Agreement and the covenants set forth in Sections
4, 5 and 6 shall survive the termination of this Agreement for any reason for the maximum period permitted by law.
17. Governing
Law
This Agreement shall be governed
by and construed in accordance with the internal laws (and not the law of conflicts) of the State of Michigan. The parties agree that
should any litigation arise out of, in connection with, or relating to this Agreement, such litigation will be commenced in a the Circuit
Court for Macomb County Michigan or in the United States District Court for the Eastern District of Michigan provided such court has subject
matter jurisdiction and venue.
18. Notices.
Service of all notices under
this Agreement must be given personally to the party involved at the address set forth below or at such other address as such party shall
provide in writing from time to time.
COMPANY: |
PAM
Transportation Services, Inc. |
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297 Henri de Tonti Blvd. |
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Tontitown, AR 72770 |
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EMPLOYEE: |
Lance Stewart |
Lance
Stewart |
|
[ ] |
297 W. Henri de Tonti Blvd. |
|
[ ] |
Tontitown, AR 72770 |
|
(existing address) |
(principal executive
offices) |
19. Section
Headings
The titles to the Sections
of this Agreement are for convenience of the parties only and shall not affect in any way the meaning or construction of any Section of
this Agreement.
20. Non-Waiver.
No covenant or condition of
this Agreement may be waived except by the written consent of COMPANY. Forbearance or indulgence by COMPANY in any regard whatsoever shall
not constitute a waiver of the covenants or conditions to be performed by EMPLOYEE to which the same may apply, and, until complete performance
by EMPLOYEE of said covenant or condition, COMPANY shall be entitled to invoke any remedy available to COMPANY under this Agreement or
by law or in equity, despite said forbearance or indulgence.
21. Construction
Although this Agreement was
drafted by COMPANY, the parties agree that it accurately reflects the intent and understanding of each party and should not be construed
against COMPANY if there is any dispute over the meaning or intent of any provisions.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
|
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PAM TRANSPORTATION SERVICES,
INC. |
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Tyler Majors |
By: |
/s/ Joseph A. Vitiritto |
[Witness] |
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Joseph Vitritto, President & CEO |
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/s/ Holly Wright |
|
/s/ Lance K. Stewart |
[Witness] |
|
Lance Stewart – Chief Financial Officer
|
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|
[ ] |
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[ ] |
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EXHIBIT A
| 1. | Central Transport, LLC. |
| 2. | Universal Logistics Holdings Inc. |
| 3. | Conlan Tire Co LLC |
| 4. | P.A.M. Transport, Inc. |
| 5. | This will include all entities under common ownership to the above companies and/or their successors. |
Exhibit 10.2
SEPARATION AND CONSULTING AGREEMENT
THIS SEPARATION AND CONSULTING
AGREEMENT (this “Agreement”) is entered into as of July 7, 2023, by and between P.A.M. Transportation Services, Inc.
and its subsidiaries (collectively, the “Company”), and Allen W. West (“Executive”) (collectively,
the “Parties”).
WHEREAS, Executive has been
employed by the Company for over twenty-five (25) years and most recently served as its Vice President of Finance, Chief Financial Officer,
Secretary and Treasurer;
WHEREAS, Executive previously
notified the Company of his intention to resign from the Company effective June 8, 2023, in accordance with the terms of that certain
Employment Agreement dated as of January 1, 2019 by and between P.A.M. Transport, Inc. and Executive (the “Employment Agreement”);
WHEREAS, to facilitate a smooth
and orderly transition in the management of the Company, Executive agrees to make himself available to provide services to the Company
on the terms and conditions set forth herein; and
WHEREAS, Executive desires
to sell to the Company his vested shares of common stock of P.A.M. Transportation Services, Inc. (“PTSI”), and the
Company desires to purchase such shares from Executive;
NOW, THEREFORE, in consideration
of the mutual covenants and promises contained herein, the parties hereto, each intending to be legally bound hereby, agree as follows:
1.
Resignation.
1.1
Resignation from Positions. Executive’s resignation from employment with the Company is effective as of 11:59 p.m.,
Central Standard Time, on June 8, 2023 (such date, the “Resignation Date”). Such resignation from employment with the
Company includes Executive’s voluntary resignation from the positions of Vice President of Finance, Chief Financial Officer, Secretary
and Treasurer of the Company and all other officer, employee, director and manager positions held by Executive with the Company.
1.2 Release Agreement. The effectiveness of this Agreement is subject to Executive’s signing and not revoking the Release
Agreement substantially in the form attached hereto as Exhibit A (the “Release Agreement”). No payments or benefits
under this Agreement shall be paid or provided to Executive unless the Release Agreement is effective and has not been revoked during
the Revocation Period (as defined therein) in accordance with the preceding sentence, and this Agreement shall become effective upon the
expiration of such Revocation Period (the “Effective Date”).
2.
Transition.
2.1
Consulting Period and Services. Commencing on the Effective Date and ending on the first anniversary thereof (the “Consulting
Period”), Executive shall make himself available to advise senior management and otherwise consult with the Company as reasonably
requested by the Company from time to time (the “Consulting Services”); provided that the Consulting Services shall
not exceed twenty percent (20%) of the average level of services that Executive performed during the 36-month period prior to the Resignation
Date. The Company shall not control the manner or means by which Executive performs the Consulting Services, and Executive’s provision
of the Consulting Services to the Company shall be non-exclusive. Executive may determine at his discretion the specific times during
which he is available, provided that Executive shall be available within a reasonable timeframe and shall reasonably cooperate with the
Company with respect to any litigation or other dispute relating to any matter in which Executive was involved or had knowledge during
his employment with the Company. Any expenses associated with travel to locations outside Benton or Washington County shall be reimbursed
by the Company.
2.2
Consulting Fees. In exchange for the Consulting Services, subject to Section 1.2 above, commencing on the Effective Date,
the Company agrees to pay Executive a monthly fee of $35,771.67 (the “Monthly Fee”) during the Consulting Period for
a total fee of $429,260.04. Except as to the Monthly Fee, no other payment or benefits shall be due or payable to Executive for the Consulting
Services, other than any travel expense reimbursements. The Company may terminate Executive’s service as a consultant prior to the
expiration of the Consulting Period by payment of a lump sum for any remaining Monthly Fees due under this Agreement or upon Executive’s
breach of any provision of this Agreement as contemplated in Section 9.11 hereof. In the event Executive’s service as a consultant
is terminated by reason of Executive’s death, the Monthly Fee shall be paid through the month of termination.
2.3
Status as an Independent Contractor. In all matters relating to the Consulting Services, nothing under this Agreement shall
be construed as creating any partnership, joint venture or agency between the Company and Executive or to constitute Executive as an agent,
employee or representative of the Company. Executive shall act solely as an independent contractor and, as such, is not authorized to
bind the Company (including its subsidiaries) to third parties. Consequently, Executive shall not be entitled to participate during the
Consulting Period in any of the employee benefit plans, programs or arrangements of the Company in his capacity as a consultant. The Company
will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making
any insurance contributions, including unemployment or disability, or obtaining workers’ compensation insurance on Executive’s
behalf. The Company has not, is not and shall not be obligated to make, and it is the sole responsibility of Executive to make, all periodic
filings and payments required to be made in connection with any withholding taxes, FICA taxes, federal or state unemployment taxes, and
any other federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with any payments made
by the Company to Executive in connection with the provision of the Consulting Services. Executive agrees to indemnify and hold the Company
harmless from and against any costs, fees, expenses, liabilities or penalties (and any interest that may accrue thereon) associated with
any withholding taxes, FICA taxes, federal unemployment taxes, and any other federal, state or local taxes, payments or filings required
to be paid, made or maintained in connection with any payments made by the Company to Executive for the Consulting Services. Executive
shall not make any public statements concerning the Consulting Services that purport to be on behalf of the Company without prior written
consent from the Company.
3.
Separation Payments. In recognition of Executive’s contribution to the Company, and in consideration of the covenants
contained herein and the waiver and release contained in the Release Agreement (including the non-revocation thereof), the Company shall
pay Executive a cash bonus in the total amount of $1,250,000 payable in five equal installments as set forth below (the “Separation
Payments”). Executive’s entitlement to receive the Separation Payments is subject to Executive’s (a) execution and
non-revocation of the Release Agreement and (b) compliance with the obligations and covenants under this Agreement. The Separation
Payments shall be paid to Executive in five equal semi-annual installments of $250,000 each, commencing on the date that is six months
after the Effective Date.
4.
Retirement Plans; Health Insurance. Executive shall be entitled to receive his vested accrued benefits, if any, under the Aon
Pooled Employer Plan in accordance with the terms and conditions of such plans. In addition, if the Executive timely and properly elects
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation coverage under the P.A.M. Transport and Met Express
Group Medical Plan, the Company shall pay the Executive’s premiums for continuing coverage under COBRA during the Consulting Period;
providing further, the obligation of the Company to pay COBRA premiums under this Section 4 shall terminate upon Executive becoming eligible
for executive benefits from a subsequent employer.
5.
No Other Compensation or Benefits. Except as otherwise specifically provided herein or as required by COBRA or other applicable
law, Executive shall not be entitled to any compensation or benefits or to participate in any past, present or future employee benefit
plans, programs or arrangements of the Company on or after the Resignation Date. Executive acknowledges and agrees that all of Executive’s
restricted shares of common stock of the Company that were unvested as of the Resignation Date and all unpaid deferred bonus amounts as
of the Resignation Date have been forfeited by Executive upon the Resignation Date in accordance with the terms of such awards.
6.
Stock Repurchase.
6.1
Repurchase of Executive’s Shares. Executive hereby agrees to sell to the Company and the Company hereby agrees to
purchase from Executive all of Executive’s directly and indirectly owned shares of common stock of PTSI (excluding any unvested
restricted shares of common stock, which have been forfeited in accordance with Section 5 hereof) (the “Shares”) at
a price per share equal to the closing market price as reported on the Nasdaq Stock Market at the close of trading on the Effective Date
(or the most recent trading day prior to the Effective Date if such date falls on a weekend or business holiday) (the “Purchase
Price”).
6.2
Closing. The closing of the Company’s purchase of the Shares shall take place on the next business day following the
Effective Date. On the closing date, Executive will notify the Company in writing of the amount of his then directly and indirectly owned
Shares and will coordinate with the Company to instruct the Company’s transfer agent and Executive’s broker or nominee, as
applicable, to electronically transfer the Shares to the Company’s account. Upon receipt of the Shares, the Company shall deliver
to Executive the aggregate Purchase Price for the Shares in cash, in the form of a Company check made payable to the order of Executive.
6.3
Executive Representations and Warranties. Executive hereby represents and warrants that: (a) Executive is the sole owner
of the Shares and has good title to the Shares; (b) Executive has the full authority to transfer, sell and deliver the Shares to the Company;
(c) the Shares are being delivered to the Company free of all liens, security interests, claims, restrictions or other encumbrances thereon;
(d) Executive has enough financial and other information concerning the Company to enable him to make an informed decision regarding the
value of the Shares; and (e) Executive is aware of or has consulted with his personal tax advisor concerning the tax effect of the sale
of the Shares on his personal tax situation. Such representations and warranties shall continue to be true and correct as of the closing
of the Company’s purchase of the Shares.
6.4
Company Authority. The Company hereby represents and warrants that the Company, through its representatives, has the full
authority to purchase the Shares from Executive.
6.5
Additional Documents. The Parties agree to execute and deliver all other appropriate supplemental agreements and other instruments
and take any other action necessary to undertake and complete the Company’s purchase of the Shares under the terms of this Agreement.
7.
Covenants and Agreements.
7.1
Covenant Not to Solicit / Not to Compete.
(a) Customers.
For a twelve (12) month period beginning on the Resignation Date, Executive agrees that he will not, either solely or jointly with, or
as manager or agent for, any person, corporation, trust, joint venture, partnership, or other business entity, directly or indirectly,
approach or solicit for business, accept business from, divert business from, or otherwise interfere with any Company or Affiliated Companies
(as listed on Exhibit B hereto) (the “Affiliated Companies”) relationship with, any person or entity (or legal successor
to such person or entity) that Executive had any direct contact with while employed by the Company and that: (a) has been a customer of
the Company or any of the Affiliated Companies at any time within the six (6) month period prior to the Resignation Date; or (b) to whom
the Company or one of the Affiliated Companies had made a proposal within the six (6) month period prior to the Resignation Date.
(b) Both
parties agree that the restrictions in this section are fair and reasonable in all respects including the length of time that they shall
remain in effect and that Company’s engagement of Executive upon the terms and conditions of this Agreement is fully sufficient
consideration for Executive’s obligations under this section.
(c) If
any provisions of this section are ever held by a Court to be unreasonable, the parties agree that this section shall be enforced to the
extent it is deemed to be reasonable.
7.2
No Interference With Employment Relationships.
Executive agrees
that for a twelve (12) month period beginning on the Resignation Date, Executive will not, directly or indirectly, solicit for employment,
hire, or offer employment to, or otherwise aid or assist any person or entity other than the Company, in soliciting for employment, hiring,
or offering employment to: (a) any employee of the Company, the Affiliated Companies, or any independent contractor engaged by the Company
or the Affiliated Companies; or (b) any former employee or independent contractor of the Company or the Affiliated Companies who was employed,
or engaged, by the Company or the Affiliated Companies within six (6) months before or after the Resignation Date. In the event Executive
hires an employee of the Company, the Company shall be compensated at a fee equal to 30% of the employee’s first year’s gross
compensation. This paragraph 7.2 also applies to employees of the companies listed on Exhibit B.
7.3
Proprietary Information.
(a) Executive
shall forever hold in the strictest confidence and not disclose to any person, firm, corporation or other entity any of the Company’s
Proprietary Information (as defined below) or any of the Company’s Records (as defined below) except as such disclosure may be required
in connection with Executive’s work for the Company as a consultant and as expressly authorized by Company in writing.
(b) For
the purposes of this Agreement, the term “Proprietary Information” shall mean intercompany publications, unpublished works,
plans, policies, computer and information systems, software and other information and knowledge relating or pertaining to the products,
services, sales or other business of the Company or its successor, affiliates and customers in any way which is of a confidential or proprietary
nature, the prices it obtains or has obtained from the sale of its services, its manner of operation, its plans, processes or other data,
contracts, information about contracts, contract forms, business applications, costs, profits, tax information, marketing information,
advertising methods, customers, potential customers, brokers, potential brokers, employees, matters of a technical nature (including inventions,
computer programs, concepts, developments, contributions, devices, discoveries, software and documentations, secret processes or machines,
including any improvements thereto and know-how related thereto, and research projects, etc.), and other information not generally available
to the public, without regard to whether all of the foregoing matters will be deemed confidential, material or important. Anything to
the contrary notwithstanding, the parties hereto stipulate that any and all knowledge, data and information gathered by Executive through
this Agreement, his engagement with the Company as a consultant and the operation of the business of the Company is deemed important,
material or confidential, and gravely affects the effective and successful conduct of the business of the Company and the Company’s
goodwill; could not without great expense and difficulty be obtained or duplicated by others who have not been able to acquire such information
by virtue of a consultancy with the Company; and that any breach of the terms of this Paragraph 7.3 shall be deemed a material breach
of this Agreement.
(c) Executive
agrees that all creative work, including without limitation, designs, drawings, specifications, techniques, models, processes and software
prepared or originated by Executive during the Consulting Period or within the scope of his engagement as a consultant for the Company
whether or not subject to protection under the federal copyright or other law constitutes work made for hire all rights to which are owned
by the Company. Moreover, Executive hereby assigns to the Company all right, title and interest whether by way of copyright, trade secret,
patent or otherwise, and all such work whether or not subject to protection by copyright or other law.
(d) Upon
termination of Executive’s consultancy with the Company or at any other time requested by the Company, Executive shall immediately
return to the Company and not retain any copies of, any records, data, lists, plans, policies, publications, computer and information
systems, files, diagrams and documentation, data, papers, drawings, memos, customer records, reports, correspondence, note books, service
listing and any other business record of any kind or nature (including without limitation records in machine-readable or computer-readable
forms) relating to Proprietary Information (“Records”) to the extent any such Records were not returned prior to such
time in accordance with the Employment Agreement or are obtained by Executive during the Consulting Period.
(e) Executive
acknowledges that, to the extent the Company derives independent economic value from any of its Proprietary Information and takes reasonable
measures to maintain its secrecy, such Proprietary Information will be considered a trade secret under applicable law. Executive further
acknowledges that under the Defend Trade Secrets Act of 2016, an individual may not be held criminally or civilly liable under any federal
or state trade secret law for the disclosure of a trade secret that: (1) is made (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected
violation of law; or (2) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. Executive
further acknowledges that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law
may disclose the employer’s trade secrets to the attorney and use the trade secret information in the court proceeding if the individual:
(1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.
This Paragraph does not in
any way restrict or impede Executive from exercising protected rights, including rights under the National Labor Relations Act (“NLRA”)
or the federal securities laws, including the Dodd-Frank Act, to the extent that such rights cannot be waived by agreement or
from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government
agency, provided that such compliance does not exceed that required by the law, regulation, or order.
7.4
Reasonable Restrictions. Executive agrees and acknowledges that the restrictions contained in this Agreement are reasonable
and necessary in order to protect the valuable proprietary assets, goodwill and business of the Company and that the restrictions will
not prevent or unreasonably restrict his ability to earn a livelihood. Executive also agrees and acknowledges that if his provision of
Consulting Services ends for any reason, Executive will be able to earn a livelihood without violating the restrictions contained in this
Agreement and that Executive’s ability to earn a livelihood without violating said restrictions is an important reason in Executive
choosing to sign this Agreement.
7.5
Non-Disparagement. Each party to this Agreement agrees and covenants that they shall not make, publish, or communicate to
any person or entity or in any public forum any maliciously false, defamatory, or disparaging remarks, comments, or statements concerning
any other party to this Agreement, the Affiliated Companies or their businesses, or any of their employees, officers, directors or managers
and their existing and prospective customers, suppliers, investors, and other associated third parties, now or at any time in the future.
This Section does not in any
way restrict or impede Executive from exercising protected rights, including rights under the NLRA or the federal securities laws, including
the Dodd-Frank Act, to the extent that such rights cannot be waived by agreement or from complying with any applicable law or
regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does
not exceed that required by the law, regulation, or order.
8.
Section 409A. This Agreement is intended to meet, or be exempt from, the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended, and the regulations and interpretive guidance promulgated thereunder (collectively, “Section 409A”),
with respect to amounts subject thereto, and shall be interpreted and construed consistent with that intent. No expenses eligible for
reimbursement, or in-kind benefits to be provided, during any calendar year shall affect the amounts eligible for reimbursement in any
other calendar year, to the extent subject to the requirements of Section 409A, and no such right to reimbursement or right to in-kind
benefits shall be subject to liquidation or exchange for any other benefit. For purposes of Section 409A, each payment in a series of
installment payments provided under this Agreement shall be treated as a separate payment. Notwithstanding the foregoing, the Company
makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the
Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Executive on
account of non-compliance with Section 409A. If amounts payable under this Agreement do not qualify for exemption from Section 409A as
of the Resignation Date and therefore are deemed deferred compensation subject to the requirements of Section 409A on the Resignation
Date, then if Executive is a “specified employee” under Section 409A on the Resignation Date, payment of the amounts hereunder
shall be delayed for a period of six (6) months from the Resignation Date if required by Section 409A. The accumulated postponed amount
shall be paid in a lump sum within sixty (60) days after the end of the six-month period. If Executive dies during the postponement period
prior to payment of the postponed amount, the amounts withheld on account of Section 409A shall be paid to Executive’s estate within
sixty (60) days after the date of Executive’s death.
9.
Miscellaneous.
9.1
Severability. As the provisions of this Agreement are independent of and severable from each other, the Company and Executive
agree that if, in any action before any court or agency legally empowered to enforce this Agreement, any term, restriction, covenant,
or promise hereof is found to be unreasonable or otherwise unenforceable, then such decision shall not affect the validity of the other
provisions of this Agreement, and such invalid term, restriction, covenant, or promise shall also be deemed modified to the extent necessary
to make it enforceable.
9.2
Notice. For purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when received if delivered in person, the next business day if delivered by
overnight commercial courier (e.g., Federal Express), or the third business day if mailed by United States certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to the Company, to:
P.A.M. Transportation Services, Inc.
P.O. Box 188
Tontitown, Arkansas 72770
Attn: Mr. Joseph A. Vitiritto, Chief
Executive Officer
If to Executive, to:
Allen West
[ ]
[ ]
Either party may change its
address for notices in accordance with this Section 9.2 by providing written notice of such change to the other party.
9.3
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas.
9.4
Arbitration. The Parties agree that any dispute, controversy, or claim arising out of or related to this Agreement, or any
alleged breach of this Agreement, shall be governed by the Federal Arbitration Act (FAA) and submitted to and decided by binding arbitration
before a panel of three (3) arbitrators. The arbitration shall be held in Washington County, Arkansas, and shall be administered before
JAMS pursuant to its Employment Arbitration Rules & Procedures and subject to JAMS Policy on Employment Arbitration Minimum Standards
of Procedural Fairness and any requirements imposed by Arkansas law. The parties shall equally split the costs of the arbitration, including
but not limited to the JAMS arbitration fees and arbitrator compensation and expenses; provided, however, that each party shall be responsible
for its own attorneys’ fees associated with or incurred during any such arbitration. Any arbitral award determination shall be final
and binding on the Parties and may be entered as a judgment in a court of competent jurisdiction.
9.5
Benefits; Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, personal representatives, legal representatives, successors and permitted assigns. Executive shall not assign his interest
in or delegate his duties under this Agreement. However, the Company is expressly authorized to assign this Agreement to one of its affiliates
or subsidiaries upon written notice to Executive. The rights and obligations of the Company hereunder may also be assigned by operation
of law in connection with a merger in which the Company is not the surviving corporation or in connection with the sale of substantially
all of the assets of the Company; and in the latter event, such assignment shall not relieve the Company of its obligations hereunder.
9.6
Entire Agreement. This Agreement, including its incorporated Exhibits A and B, constitutes the entire agreement between
the parties, and all prior understandings, agreements or undertakings between the parties concerning Executive’s resignation from
employment or the other subject matters of this Agreement are superseded in their entirety by this Agreement; provided, however, that
nothing in this Agreement modifies, supersedes, voids, or otherwise alters Executive’s post-employment contractual obligations contained
in the Employment Agreement, including but not limited to Executive’s confidentiality, proprietary information, noncompetition,
and nonsolicitation obligations. Executive’s contractual obligations contained in the Employment Agreement, including but not limited
to Executive’s confidentiality, proprietary information, noncompetition, and nonsolicitation obligations, shall remain in full force
and effect.
9.7 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may
be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
9.8
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together
shall be one and the same instrument.
9.9
Interpretation. As both parties have had the opportunity to consult with legal counsel, no provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party by reason of such party having, or being deemed to have, drafted,
devised, or imposed such provision.
9.10 Duration. Notwithstanding the termination of Executive’s service as a consultant under this Agreement, this Agreement
shall continue to bind the parties for so long as any obligations remain under this Agreement, and, in particular, Executive shall continue
to be bound by the covenants and time limits as set forth in Section 7 of this Agreement.
9.11
Remedies. In the event of a breach or threatened breach by Executive of any of the provisions of this Agreement or the Release
Agreement, Executive hereby consents and agrees that the Company shall be entitled to, in addition to other available remedies, a temporary
or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without
the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting
any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages,
or other available forms of relief. If Executive fails to comply with any of the terms of this Agreement or the Release Agreement, the
Company may, in addition to any other available remedies, terminate any benefits or payments that are later due under this Agreement,
and Executive shall immediately return to the Company any amounts paid to Executive under the provisions of this Agreement, with the exception
of any amounts received by Executive for the sale of the Executive’s stock to the Company or any Consulting Service Monthly Fees
previously paid by the Company. Such remedies shall not be a waiver by the Company of the releases provided in the Release Agreement.
9.12 Tolling. If Executive violates any of the terms of the restrictive covenant obligations in this Agreement, including but
not limited to the non-solicitation, non-disclosure, non-competition and non-disparagement covenants, the obligation at issue will begin
to run from the first date on which the Executive ceases to be in violation of the obligation for all such restrictions and shall automatically
be extended by the period the Executive was in violation of them.
9.13 Incorporation of Recitals. The recitals set forth in the beginning of this Agreement are hereby incorporated into the body
of this Agreement as if fully set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have signed their names on July 7, 2023, and the Agreement shall be effective as of the day and year first above written.
P.A.M. TransportATION
SERVICES, Inc.,
By: /s Joseph A. Vitiritto
Name: Joseph A. Vitiritto
Title: Chief Executive Officer
EXECUTIVE
HEREBY ACKNOWLEDGES THAT EXECUTIVE HAS READ THIS AGREEMENT, THAT EXECUTIVE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND
THAT EXECUTIVE HEREBY ENTERS INTO THIS AGREEMENT VOLUNTARILY AND OF EXECUTIVE’S OWN FREE WILL.
/s/ Allen West
Allen W. West
EXHIBIT A
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (this
“Agreement”), dated as of July 7, 2023, by and between P.A.M. Transportation Services, Inc. (collectively, with
its consolidated subsidiaries, the “Company”), on behalf of itself, its subsidiaries, and other corporate affiliates,
and each of their respective present and former employees, officers, directors, owners, shareholders, and agents, individually and in
their official capacities (collectively referred to as the “Company Group”), and Allen W. West (“Executive”).
Capitalized terms used herein but not defined shall have the meanings set forth in the Separation and Consulting Agreement, dated as of
July 7, 2023 (the “Separation Agreement”), by and between the Company and Executive.
WHEREAS, the Separation Agreement
sets forth the terms and conditions of Executive’s separation from employment with the Company effective as of June 8, 2023; and
WHEREAS, the Separation Agreement
provides that, in consideration for certain payments and benefits payable to Executive in connection with his resignation, Executive shall
fully and finally release the Company from all claims arising from or relating to Executive’s employment relationship with the Company
and the termination of such relationship, other than any claims associated with the Separation Agreement; and
WHEREAS, in addition to those
certain payments and benefits outlined in the Separation Agreement, the Company and the Company Group acknowledge that they are not aware
of any claims against Executive arising from or relating to Executive’s employment relationship with the Company or the termination
of such relationship.
NOW, THEREFORE, in consideration
of the mutual covenants and promises contained herein, the parties hereto, each intending to be legally bound hereby, agree as follows:
1.
Executive Representations. The Executive specifically represents, warrants, and confirms that the Executive:
a) has not instituted, assisted or otherwise participated in connection with, any action, complaint, claim, charge, grievance, arbitration,
lawsuit or administrative agency proceeding, or action at law or otherwise against any member of the Company Group or any of their respective
officers, employees, directors, shareholders or agents;
b) has not made any claims or allegations to the Company related to sexual harassment, sex discrimination, or sexual abuse, and that
none of the payments set forth in the Separation Agreement are related to sexual harassment, sex discrimination, or sexual abuse;
c)
has been properly paid for all hours worked for the Company;
d) has received all salary, wages, commissions, bonuses, and other compensation due to the Executive, with the exception of any benefits
or payments due under the Separation Agreement; and
e) has not knowingly and willfully engaged in any unlawful conduct relating to the business of the Company that would have had a material
impact on its financial statements or any theft or fraud relating to the Company or its affiliates.
If any of these statements
is not true, the Executive cannot sign this Agreement and must notify the Company immediately in writing of the statements that are not
true.
2.
Release.
2.1
General Release. In consideration of the Company’s obligations under the Separation Agreement and for other valuable
consideration, Executive and the Executive’s heirs, executors, representatives, administrators, agents, and assigns (collectively,
the “Releasors”) irrevocably and unconditionally fully and forever waive, release, and discharge the Company Group,
including each member of the Company Group’s parents, subsidiaries, affiliates, predecessors, successors, assigns, and employee
benefit plans, and each of its and their respective officers, directors, employees, shareholders, trustees, partners, in their corporate
and individual capacities (collectively, the “Released Parties”), from any and all claims, demands, actions, causes
of actions, judgments, rights, fees, damages, debts, obligations, liabilities, and expenses (inclusive of attorneys’ fees) of any
kind whatsoever, whether known or unknown (collectively, “Claims”), that Releasors may have or have ever had against
the Released Parties, or any of them. The Claims the Releasors are releasing include (without limiting the generality of the foregoing)
all claims arising out of, or in any way related to all relationships, interactions, transactions or contracts, express or implied, between
Executive and the Released Parties, including, without limitation, Executive’s hire, benefits, employment, termination, or separation
from employment with the Company Group, by reason of any actual or alleged act, omission, practice, conduct, occurrence, or other matter
from the beginning of time up to and including the date Executive executes this Agreement, including, but not limited to:
a) any and all claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the
Family and Medical Leave Act (FMLA) (regarding existing but not prospective claims), the Fair Labor Standards Act (FLSA), the Equal Pay
Act, the Employee Retirement Income Security Act (ERISA) (regarding unvested benefits), the Civil Rights Act of 1991, Section 1981 of
U.S.C. Title 42, the Fair Credit Reporting Act (FCRA), the Worker Adjustment and Retraining Notification (WARN) Act, the National Labor
Relations Act (NLRA), the Uniform Services Employment and Reemployment Rights Act (USERRA), the Genetic Information Nondiscrimination
Act (GINA), the Immigration Reform and Control Act (IRCA), the Arkansas Civil Rights Act, and all state and local laws that may be legally
waived, all including any amendments and their respective implementing regulations, and any other federal, state, local, or foreign law
(statutory, regulatory, or otherwise) that may be legally waived and released; however, the identification of specific statutes is for
purposes of example only, and the omission of any specific statute or law shall not limit the scope of this general release in any manner;
b) any and all claims for compensation of any type whatsoever, including but not limited to claims for salary, wages, bonuses, commissions,
incentive compensation, vacation, and severance, other than those payments and benefits associated with the Separation Agreement, that
may be legally waived and released;
c) any and all claims arising under tort, contract, and quasi-contract law, including but not limited to claims of breach of an express
or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair
dealing, promissory estoppel, detrimental reliance, invasion of privacy, nonphysical injury, personal injury or sickness or any other
harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, and negligent or intentional infliction
of emotional distress; and
d) any and all claims for monetary or equitable relief, including but not limited to attorneys' fees, back pay, front pay, reinstatement,
experts’ fees, medical fees or expenses, costs and disbursements, punitive damages, liquidated damages, and penalties.
Releasors further covenant and
agree not to institute or cause to be instituted any action, cause of action or other judicial or administrative proceeding based on any
claim released hereunder. If any such action or proceeding is brought by Releasors, the prevailing party shall be entitled to recover
any costs incurred by them (including, but not limited to, attorneys’ fees) in connection with any such action or proceeding.
However, this general release
and waiver of claims excludes, and Executive does not waive, release, or discharge: (A) any right to file an administrative charge or
complaint with, or testify, assist, or participate in an investigation, hearing, or proceeding conducted by, the Equal Employment Opportunity
Commission or other similar federal or state administrative agencies, although Executive waives any right to monetary relief related to
any filed charge or administrative complaint; (B) claims that cannot be waived by law; (C) indemnification rights Executive has against
the Company; (D) any right to file an unfair labor practice charge under the National Labor Relations Act; (E) protections against retaliation
under the Taxpayer First Act (26 U.S.C. § 2623(d)); (F) any rights to vested benefits, such as pension or retirement benefits, the
rights to which are governed by the terms of the applicable plan documents and award agreements; and (G) any claim for breach of this
Agreement or the Separation Agreement.
2.2
Specific Release of ADEA Claims. As further consideration for the payments and benefits provided to Executive under the
Separation Agreement, and for other valuable consideration, the Releasors hereby irrevocably and unconditionally fully and forever waive,
release, and discharge the Released Parties from any and all Claims, whether known or unknown, from the beginning of time through the
date Executive executes this Agreement (subject to Section 2.2(g) below), arising under the Age Discrimination in Employment Act (ADEA),
as amended, and its implementing regulations. By signing this Agreement, the Executive hereby acknowledges and confirms that:
a) the Executive has read this Agreement in its entirety and understands all of its terms;
b) by this Agreement, the Executive has been advised in writing to consult with an attorney of the Executive’s choosing before
signing this Agreement;
c) the Executive knowingly, freely, and voluntarily agrees to all of the terms and conditions set out in this Agreement including,
without limitation, the waiver, release, and covenants contained in it;
d) the Executive is signing this Agreement, including the waiver and release, in exchange for good and valuable consideration in addition
to anything of value to which the Executive is otherwise entitled;
e) the Executive was given at least twenty-one (21) days to consider the terms of this Agreement and consult with an attorney of the
Executive’s choice, although the Executive may sign it sooner if desired and changes to this Agreement, whether material or immaterial,
do not restart the running of the 21-day period;
f) the Executive understands that the Executive has seven (7) calendar days after signing this Agreement (the “Revocation
Period”) to revoke the release in this Section by delivering notice of revocation to Mr. Joseph A. Vitiritto at the Company,
297 W. Henri de Tonti Blvd., Tontitown, Arkansas 72770 by email or overnight delivery before the end of this seven-day period; in the
event of any such revocation by Executive, all obligations of the Company under the Separation Agreement shall terminate and be of no
further force and effect as of the date of such revocation. No such revocation by Executive shall be effective unless it is in writing
and signed by Executive and received by the Company prior to the expiration of the Revocation Period; and
g) the Executive understands that the release contained in this Section 2 does not apply to rights and claims that may arise after
the Executive signs this Agreement.
3.
Cessation of Payments. In the event that Executive (a) files any charge, claim, demand, action or arbitration against the Company
or any member of the Company Group with regard to Executive’s employment, compensation or termination of employment or any other
matter under any federal, state or local law, or an arbitration under any industry regulatory entity, except in either case for a claim
for breach of the Separation Agreement or failure to honor the obligations set forth therein; (b) breaches any of the covenants or obligations
contained in or incorporated into the Separation Agreement; or (c) is otherwise in breach of this Agreement or the Separation Agreement,
the Company shall be entitled to cease making any payments due pursuant to Sections 3, 4 and 5 of the Separation Agreement, and Executive
shall immediately return to the Company any amounts paid to Executive under the Separation Agreement, with the exception of any amounts
received by Executive for the sale of the Executive’s stock to the Company or any Consulting Service Monthly Fees previously paid
by the Company. Such remedies shall not be a waiver by the Company of the releases provided in this Agreement.
4.
Revocation. This Agreement may be revoked by Executive within the seven-day period commencing on the date Executive signs this
Agreement (the “Revocation Period”). In the event of any such revocation by Executive, all obligations of the Company
under the Separation Agreement shall terminate and be of no further force and effect as of the date of such revocation. No such revocation
by Executive shall be effective unless it is in writing and signed by Executive and received by the Company prior to the expiration of
the Revocation Period.
5.
Miscellaneous.
5.1
Severability. As the provisions of this Agreement are independent of and severable from each other, the Company and Executive
agree that if, in any action before any court or agency legally empowered to enforce this Agreement, any term, restriction, covenant,
or promise hereof is found to be unreasonable or otherwise unenforceable, then such decision shall not affect the validity of the other
provisions of this Agreement, and such invalid term, restriction, covenant, or promise shall also be deemed modified to the extent necessary
to make it enforceable.
5.2
Notice. For purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when received if delivered in person, the next business day if delivered by
overnight commercial courier (e.g., Federal Express), or the third business day if mailed by United States certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to the Company, to:
P.A.M. Transportation Services, Inc.
P.O. Box 188
Tontitown, Arkansas 72770
Attn: Mr. Joseph A. Vitiritto, Chief
Executive Officer
If to Executive, to:
Allen West
[ ]
[ ]
Either party may change its
address for notices in accordance with this Section 5.2 by providing written notice of such change to the other party.
5.3
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas.
5.4
Arbitration. The Parties agree that any dispute, controversy, or claim arising out of or related to this Agreement, or any
alleged breach of this Agreement shall be governed by the Federal Arbitration Act (FAA) and submitted to and decided by binding arbitration
before a panel of three (3) arbitrators. The arbitration shall be held in Washington County, Arkansas, and shall be administered before
JAMS pursuant to its Employment Arbitration Rules & Procedures and subject to JAMS Policy on Employment Arbitration Minimum Standards
of Procedural Fairness and any requirements imposed by Arkansas law. The parties shall equally split the costs of the arbitration, including
but not limited to the JAMS arbitration fees and arbitrator compensation and expenses; provided, however, that each party shall be responsible
for its own attorneys’ fees associated with or incurred during any such arbitration. Any arbitral award determination shall be final
and binding on the Parties and may be entered as a judgment in a court of competent jurisdiction.
5.5
Benefits; Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
heirs, personal representatives, legal representatives, successors and, in the case of a sale of all or substantially all of the Company’s
assets, or upon any merger, consolidation or reorganization of the Company, the Company’s assigns.
5.6
Entire Agreement. This Agreement and the Separation Agreement constitute the entire agreement between the parties, and all
prior understandings, agreements or undertakings between the parties concerning Executive’s resignation from employment or the other
subject matters of this Agreement are superseded in their entirety by this Agreement; provided, however, that nothing in this Agreement
modifies, supersedes, voids, or otherwise alters Executive’s post-employment contractual obligations contained in the Employment
Agreement, including but not limited to Executive’s confidentiality, proprietary information, noncompetition, and nonsolicitation
obligations. Employee’s contractual obligations contained in the Employment Agreement, including but not limited to Executive’s
confidentiality, proprietary information, noncompetition, and nonsolicitation obligations, shall remain in full force and effect.
5.7
Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may
be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
5.8
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together
shall be one and the same instrument.
5.9
Interpretation. As both parties have had the opportunity to consult with legal counsel, no provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party by reason of such party having, or being deemed to have, drafted,
devised, or imposed such provision.
5.10 Incorporation of Recitals. The recitals set forth in the beginning of this Agreement are hereby incorporated into the body
of this Agreement as if fully set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have signed their names as of the day and year first above written.
P.A.M.
TransportATION SERVICES, Inc.
By: /s Joseph A. Vitiritto
Name: Joseph A. Vitiritto
Title: Chief Executive Officer
EXECUTIVE HEREBY ACKNOWLEDGES THAT EXECUTIVE
HAS READ THIS AGREEMENT, THAT EXECUTIVE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT EXECUTIVE HEREBY ENTERS INTO THIS
AGREEMENT VOLUNTARILY AND OF EXECUTIVE’S OWN FREE WILL.
/s/ Allen West
Allen W. West
EXHIBIT B
| 1. | P.A.M. Transport, Inc. |
| 2. | Central Transport, LLC. |
| 3. | Universal Logistics Holdings Inc. |
| 4. | Conlan Tire Co LLC |
| 5. | This will include all entities under common ownership to the above companies and/or their successors. |
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