EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made in Medina, Ohio and entered
into by and between Corrpro Companies, Inc., an Ohio corporation (the "COMPANY")
and ▇▇▇▇▇▇ ▇. ▇▇▇ ("EXECUTIVE") effective as of date of the consummation of the
issuance and sale of the redeemable preferred stock of the Company to ▇▇▇▇▇▇▇
Partners III, L.P., a Delaware limited partnership (together with its assigns,
"▇▇▇▇▇▇▇")(the "CLOSING").
WHEREAS, ▇▇▇▇▇▇▇ and the Company executed a term sheet dated September 11,
2003 to enter into an agreement whereby ▇▇▇▇▇▇▇ proposes to purchase $13.0
million of the Preferred Stock, and ▇▇▇▇▇▇▇ would hold detachable warrants to
purchase 40% of the fully diluted common stock at a nominal cost, all the
Preferred Stock would represent 51% of the fully diluted voting power of the
common stock of the Company (including authorized but unissued options) and the
holders of Preferred Stock would have the right to elect the number of directors
constituting a majority of the Board of Directors of the Company (the "BOARD")
authorized by the Company's certificate of incorporation or bylaws (the
"TRANSACTIONS"); and
WHEREAS, ▇▇▇▇▇▇▇ has made it a condition to consummation of the
Transactions that Executive terminate that certain Employment Agreement by and
between the Company and Executive dated November 2, 2000 (the "EMPLOYMENT
AGREEMENT") and enter into this Agreement; and
WHEREAS, Executive believes that it is in the best interest of Executive
to terminate the Employment Agreement and to enter into this Agreement in
conjunction with the Transactions; and
WHEREAS, the Company and Executive have entered into the Employment
Agreement and desire to amend its terms in accordance with Section 17 of the
Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants contained herein and in the Employment Agreement, and other good and
valuable consideration, effective as of the Closing, the parties agree as
follows:
SECTION 1 - TERM AND DUTIES
1.1 TERM. The Company shall employ Executive, subject to the provisions
of this Agreement, effective as of the Closing and ending on March 31, 2005.
This Agreement at all times may otherwise be terminated in accordance with the
provisions of this Agreement.
1.2 SUBSEQUENT TERM. Beginning on December 31, 2004, this Agreement
shall be automatically renewed for successive one-year periods unless prior to
the December 31 immediately preceding the expiration of this Agreement or
renewal thereof, the Company or Executive notifies the other in writing that
such party does not wish to renew this Agreement.
1.3 DUTIES. During Executive's employment pursuant to this Agreement,
Executive shall serve as Chief Executive Officer ("CEO") and President of the
Company until he dies, retires, or is removed or fails to be reelected as CEO by
the Board. So long as Executive serves as CEO, (i) the Company shall nominate
Executive to serve as a director on the Board of Directors of the Company and
shall use its best efforts to facilitate Executive's election, and (ii)
Executive shall have the right to serve on the board of directors of any newly
formed holding company and subsidiary of the Company. In his capacity as CEO,
Executive will retain the right to approve, select and/or hire employees of the
Company plus have the authority to determine and implement programs and
establish direction for the Company and shall serve at the direction of the
Board of Directors of the Company and shall be subject to the
policies and procedures adopted by the Company from time to time. Executive
agrees to serve as an officer or director of such of the Company's subsidiaries
or affiliates as the Company may reasonably request. Executive agrees to resign
as CEO upon the election of a new CEO by the Board, which shall be treated as a
termination of Executive's employment without Good Cause (as defined in Section
8.1)
1.4 CHANGES IN STATUS. The Company agrees that it will not, without
Executive's consent, (i) assign to Executive duties materially inconsistent with
or which materially diminish Executive's current positions, authority, duties,
responsibilities and status with the Company; (ii) materially change Executive's
title as currently in effect; or (iii) transfer Executive's job location to a
site more than fifty (50) miles away from his place of employment as of the date
hereof. Except as so limited, the powers and duties of Executive are to be more
specifically determined and set by the Company from time to time.
SECTION 2 - COMPENSATION AND BENEFITS
2.1 BASE SALARY. During Executive's employment pursuant to this
Agreement, Executive shall receive an annual base salary of two hundred eighty
five thousand U.S. Dollars (U.S. $285,000) as compensation for Executive's
services to the Company (the "Base Compensation"), such compensation to be
payable in regular installments in accordance with the Company's policy for
salaried employees.
2.2 SALARY ADJUSTMENTS. Effective as of the first day of each fiscal
year of the Company during Executive's employment pursuant to this Agreement,
the Base Compensation shall be set by the Board of Directors (or its designated
committee). In the event the Base Compensation is adjusted, such adjusted Base
Compensation shall be payable to Executive under this Agreement for that fiscal
year, provided that no downward adjustment shall be made without Executive's
consent.
2.3 VACATION. Executive shall be entitled to four (4) weeks of paid
vacation each year of this Agreement to be taken in accordance with the
Company's policy then in effect.
2.4 ANNUAL BONUS PLAN. Executive shall be a participant in the Company's
annual bonus plan, subject to the attainment of performance objectives and other
provisions of such plan as in effect each year of this Agreement.
2.5 BENEFIT PLANS. During Executive's employment pursuant to this
Agreement, subject to eligibility and applicable employee contributions, and
except as otherwise expressly provided in this Agreement, Executive shall be
entitled to participate on substantially the same terms as other Senior Level
Executives in all employee benefit and executive benefit plans, pension plans,
medical benefit plans, group life insurance plans, hospitalization plans, other
employee welfare plans, or fringe benefit plans (such as sick pay or car
allowance) that the Company may adopt from time to time during Executive's
employment pursuant to this Agreement, and as such plans may be modified,
amended, terminated, or replaced from time to time. In addition, Executive shall
receive such other compensation as the Board of Directors of the Company (or a
committee thereof designated by the Board) may from time to time determine to
pay Executive whether in the form of bonuses, stock options, incentive
compensation or otherwise.
2.6 EXPENSE REIMBURSEMENTS. The Company shall reimburse, in accordance
with Company policy, Executive's ordinary and reasonable business expenses,
including professional dues, expenses, and continuing education expenses for
maintaining certifications, incurred in furtherance of Executive's performance
of Executive's duties under this Agreement.
2
2.7 RETIREMENT INCOME. Executive has become vested in the retirement
income provided for in Executive's previous employment contract with the
Company. Such retirement income is payable as set forth and subject to the
provisions of this Agreement. The Company shall provide Executive with
retirement income, with a lifetime survivor benefit to Executive's spouse, in an
amount equal to fifty percent (50%) of Executive's Base Compensation in effect
on the date of Executive's retirement, payable on a monthly basis as set forth
below:
(a) RETIREMENT BEFORE AGE 63-1/2. In the event of Executive's
retirement prior to reaching the age of 63-1/2, monthly lifetime
retirement payments will commence on the first day of the month following
Executive's reaching the age of 63-1/2.
(b) RETIREMENT ON OR AFTER AGE 63-1/2. In the event of Executive's
retirement on or after reaching the age of 63-1/2, monthly lifetime
retirement payments will commence on the first day of the month following
Executive's retirement.
(c) DEATH. In the event of Executive's death, whether prior to or
subsequent to Executive's retirement, monthly lifetime survivor retirement
payments to his spouse will commence on the first day of the month
following Executive's death and will cease upon the death of Executive's
spouse.
(d) DISABILITY. In the event that Executive's employment
terminates due to Disability, monthly lifetime retirement payments will
commence on the first day of the month following the later of (i) the
termination of disability payments provided for in the first sentence of
Section 6 hereof, or (ii) the termination of benefits received by
Executive from disability insurance the premiums for which were paid by
the Company
(e) TERMINATION WITHOUT GOOD CAUSE. In the event that Executive's
employment terminates due to termination by the Company without Good Cause
as defined in Section 8.1 hereof, monthly lifetime retirement payments
will commence on the first day of the month following the termination of
the severance payments provided for in Section 7 hereof.
As long as the retirement payments provided for in this Section 2.7 are
made, Executive agrees not to compete with the Company as provided in Section 4
hereof. In the event Executive violates any of the provisions of Section 4
hereof, the Company may cease making the retirement payments which are provided
for in this Section 2.7.
SECTION 3 - TIME COMMITMENT AND PERFORMANCE
Executive shall devote Executive's best efforts and all of Executive's
business time, attention, and skill to the business and the operations of the
Company and shall perform Executive's duties and conduct himself at all times in
a manner consistent with Executive's appointment as CEO and President of the
Company; except, however, Executive may serve on corporate, civic, or charitable
boards or committees and manage Executive's personal investments and affairs
provided such activities do not interfere with the performance of Executive's
duties under this Agreement and provided Executive keeps the Board of Directors
reasonably informed of Executive's commitments.
3
SECTION 4 - COMPETITIVE ACTIVITY/OTHER RESTRICTIONS
Subject to any restrictions contained in any other agreements or
arrangements with Executive, from the effective date of this Agreement and until
the latest to occur of (i) the date twenty-four (24) months immediately
following the termination of Executive's employment under this Agreement; (ii)
the date twenty-four (24) months after Executive ceases to serve as a director
of the Company; or (iii) the date that Executive no longer holds any vested and
exercisable options to purchase the Company's stock under any plan of the
Company, Executive agrees to the following:
(a) AGREEMENT NOT TO COMPETE. Executive will not accept employment
with, or act as an officer, director, consultant, contractor,
representative or advisor in a capacity in which he is to perform duties
in the corrosion engineering business for a competitor of the Company or
any of its subsidiaries, or enter into competition with the Company or any
of its subsidiaries, either by himself or through any entity owned or
managed in whole or in part by him in any state, province, territory, or
country in which the Company or any of its subsidiaries or its
subsidiaries is conducting its corrosion engineering business. The term
"competitor" as used in this paragraph, means any entity engaged in the
corrosion engineering business as defined below. For purposes of entities
with multiple lines of business, "competitor" shall be limited to the line
or lines of business engaged in the corrosion engineering business as
defined. Executive further agrees that he will not invest in or otherwise
have an ownership interest in any competitor of the Company or any of its
subsidiaries, with the exception that Executive may own up to a 5%
interest in a publicly-traded company that may compete with the Company or
any of its subsidiaries.
(b) AGREEMENT NOT TO SOLICIT. Executive shall not, directly or
indirectly, solicit or induce, or attempt to solicit or induce, any
current or future employee of the Company or any of its subsidiaries to
leave the employ of the Company or any of its subsidiaries for any reason
whatsoever without the written consent of the Company.
(c) AGREEMENT NOT TO INTERFERE. Executive shall not attempt to
divert or take away, in any manner, the business or patronage of any
customer or potential customer of the Company or otherwise take from or
deprive the Company of any business opportunity; or materially interfere,
in any manner, with the business, trade, good will, sources of supply, or
customers of the Company.
Executive acknowledges and agrees that the restrictions contained in this
Section 4 are reasonable and necessary for the protection of the business
interests of the Company and that such restrictions are not unduly burdensome in
scope or duration.
For purposes of this Agreement, "Corrosion control business" means
corrosion control services and products including, but not limited to: (i)
cathodic protection services and materials including construction and
installation; (ii) corrosion prevention engineering and consulting services for
a wide variety of applications such as storage tanks, energy, environmental and
infra-structure; (iii) nondestructive testing; (iv) coatings engineering,
application and inspection; (v) pipeline integrity services; (vi) pipeline
surveys; (vii) anodic protection; (viii) development and sale of corrosion
control related software or interpreting and managing corrosion control related
data and assessing risk; (ix) remote monitoring; (x) corrosion related research
and testing and analysis; (xi) manufacture and supply of anodes and other
corrosion control materials; (xii) assembly and/or supply of materials used in
such applications; and (xiii) corrosion control contract and construction
management services.
4
SECTION 5 - PROPRIETARY INFORMATION/INTELLECTUAL PROPERTY
5.1 PROPRIETARY INFORMATION. During Executive's employment pursuant to
this Agreement and at any time thereafter, Executive shall not disclose, or
cause to be disclosed in any manner, to any corporation, partnership, person,
group, or entity (other than to Company employees or authorized representatives,
or in the ordinary course of business consistent with Company policy regarding
trade secrets) or otherwise use for any purpose other than the Company's
business, any trade secrets or confidential or proprietary information of the
Company, including, but not limited to, the Company's customer or prospective
customer lists; information concerning the Company's promotional, pricing, or
marketing practices; the Company's business records; and the Company's trade
secrets and other confidential and proprietary information.
Upon termination of employment under any circumstances, Executive or
Executive's estate or representatives, shall promptly return to the Company all
property of the Company including any and all electronic devices and related
data storage devices and shall destroy or erase any data which cannot be
returned. This Section 5 shall survive the termination of this Agreement.
5.2 INVENTIONS. Executive will communicate to the Company promptly and
fully and hereby assigns all of Executive's rights in all inventions or
improvements made or conceived by Executive (alone or jointly with others)
during Executive's employment and for a period of one year thereafter, which are
along the lines of the business, work or investigations of the Company or which
result from or are suggested by any work Executive may do for the Company.
Executive agrees that any such invention or improvement, whether or not
patentable, shall be and remain the sole and exclusive property of the Company.
Executive agrees to keep and maintain adequate and current written records of
all such inventions or improvements at all stages thereof, which records shall
be and remain the property of the Company. There shall be excluded from the
operation of this Agreement Executive's inventions and improvements, patented
and unpatented, which were made prior to Executive's employment by the Company,
and which, if Executive has any such inventions, are listed on an attached
exhibit.
5.3 COPYRIGHTS/TRADEMARKS. It is understood and agreed that the entire
right, title and interest throughout the world to all works and trademarks that
are created by Executive, either solely or jointly with other during this
Agreement, shall be and hereby are vested and assigned by Executive to the
Company. Any copyrightable works created during this Agreement shall be deemed
work for hire to the extent permitted by law and the Company shall have the sole
right to any such copyright. In the event that any work created by Executive
does not qualify as a work for hire, Executive hereby assigns Executive's or her
right in the work to the Company.
5.4 DOCUMENTATION. Executive agrees to execute any and all documents
prepared by the Company for such purposes and to do all other lawful acts as may
be reasonably required by the Company to establish, document, and protect the
rights in the proprietary information, inventions, copyrights, and trademarks
described above.
SECTION 6 - COMPENSATION DURING DISABILITY
Executive shall receive Executive's Base Compensation and auto allowance,
if any, (net of applicable withholdings) during the first ninety (90) business
days of absence due to Disability (as hereinafter defined). In the event of
Executive's Disability and a determination by the Board of Directors that
sufficient reasonable accommodations for the Disability cannot be made, the
Company may terminate Executive's employment under this Agreement. If the
Company terminates Executive's employment under this Agreement because of
Executive's Disability, the Company shall pay to Executive the amounts,
5
and provide to Executive the benefits, specified in Section 7 hereof. The amount
of benefits to be paid by the Company to Executive under this Section 6 or under
Section 7 shall be reduced by any amount paid or to be paid pursuant to Company
sponsored disability plans. For purposes of this Agreement, "Disability" shall
mean Executive's a disability which would qualify for and entitle Executive to
long-term disability payments under the Company's long-term disability plan
generally in effect for employees, or if no such plan is effective at the time,
Executive's inability, through physical or mental illness or accident or other
cause, to perform Executive's major and substantial duties on a full time basis
as determined by a physician hired by the Board of Directors for this
determination (the "Company Physician"). If the physician regularly attending
Executive (the "Executive Physician") disagrees with the opinion of the Company
Physician, the Company Physician and the Executive Physician shall choose a
third consulting physician (the expense of which shall be borne by the Company),
and the written opinion of the third consulting physician shall be conclusive as
to such disability. In conjunction with this Section 6, Executive consents to
such examination, to furnish any medical information requested by any examining
physician, and to waive any applicable physician-patient privilege or federal or
state privacy right that may raise because of such examination. All physicians,
except the Executive Physician, selected hereunder must be board-certified in
the specialty most closely related to the nature of the disability alleged to
exist.
SECTION 7 - RESIGNATION DUE TO COMPANY FAILING TO HONOR ITS OBLIGATIONS
AND TERMINATION WITHOUT GOOD CAUSE OR DUE TO DISABILITY
7.1 GENERALLY. Executive may resign Executive's employment and terminate
this Agreement if the Company fails to honor its obligations, subject to the
procedures as provided in this Section 7. The Company may terminate Executive's
employment for any reason at any time upon 30 days notice to Executive, provided
that the Company pays Executive the amounts as determined in this Section 7.
Anything to the contrary contained in this Agreement notwithstanding, (i) if the
Company fails to honor any of its obligations under this Agreement, and if the
Company does not cure the determined failure within thirty (30) days after a
determination of a failure in accordance with the procedures set forth below and
if as a result Executive resigns Executive's employment with the Company; (ii)
if the Company terminates Executive's employment with the Company under this
Agreement without Good Cause (as defined in Section 8.1); or (iii) if
Executive's employment terminates by reason of Disability as provided for in
Section 6 hereof, Executive shall be entitled to receive and the Company shall
pay to Executive the following:
(a) SALARY. Executive's Base Compensation and auto allowance, if
any, earned through the date of resignation or termination and a lump sum
payment for any unused vacation shall be paid on or before the next
regularly scheduled pay-date after the effective date of the resignation
or termination.
(b) SEVERANCE. Severance payments for a period of two (2) years
shall be paid in consecutive periodic payments commencing on the first pay
day in the month following such resignation or termination in the
aggregate amount (net of any required withholdings and Disability payment
offsets as provided in Section 6) equal to twenty-four (24) months of
Executive's Base Compensation and auto allowance, if any, then in effect,
provided that in the event of Executive's death prior to the receipt of
all payments, any remaining payments shall be made in a lump sum to
Executive's designated beneficiary or, if none, to Executive's estate.
(c) BENEFITS. Following any resignation or termination for which a
payment under Section 7.1(b) is owing, Executive, or Executive's spouse
and eligible dependents in the event of Executive's death, shall continue
to participate at the expense of the Company for a
6
period of twenty-four (24) months following such resignation or
termination in the same or comparable hospital, medical, accident,
disability and life insurance benefits as Executive participated in
immediately prior to resignation or termination of Executive's employment
unless by law, by the terms of any insurance policy or by the terms of the
applicable benefit plans, continued coverage is not permitted, provided
that the Company at its sole option may elect at any time subsequent to
termination of Executive's employment to pay (i) provided Executive
submits reasonable substantiation therefore, the amount of premium
actually being paid by Executive for equivalent coverage or (ii) if such
substantiation is not submitted, the equivalent of the amount of the
monthly premiums (determined by reference to the amount charged generally
for continuation coverage for terminated employees). Executive and
eligible dependents may continue coverage under such benefit plan for
subsequent periods and subject to applicable premium contributions, to the
extent permitted by law or by such plans. To the extent that during
Executive's employment, any such benefits were part of a program of
benefits for Senior Level Executives of the Company, generally, then any
subsequent modification, substitution, or termination of any such
benefits, generally, shall also apply to Executive and to the benefits
available to Executive pursuant to this Section 7.1(c).
(d) ANNUAL BONUS PLANS. If Executive's employment is terminated on
or before March 31, 2004, then (i) an amount equal to a full year's
participation in the annual bonus plan then in effect during the fiscal
year in which Executive's termination of employment is effective as
provided for in Section 2.4 hereof shall be paid to Executive within the
time period prescribed by such plan (i.e. Executive will be paid based
upon actual results as if Executive had been employed the full twelve
months and had received the full twelve month Base Compensation), and (ii)
any payments due Executive under the incentive plans then in effect as
provided for in Section 2.5 hereof (other than any annual bonus plans), in
accordance with the terms of such plans shall be paid to Executive within
the time period prescribed by such plans. If Executive's employment is
terminated after March 31, 2004, then an amount equal to a pro-rata share
of the amount set forth in the preceding sentence based upon the number of
full months Executive was actually employed during such fiscal year shall
be paid to Executive within the time period prescribed by such plan.
(e) RETIREMENT INCOME. Executive shall be paid the retirement
income provided in Section 2.7 hereof, payable in accordance with the
provisions of Section 2.7.
7.2 PROCEDURES. For purposes of this Section 7, the following procedure
shall be used to determine whether the Company has failed to honor any of its
obligations under this Agreement:
(a) Executive shall submit a claim to the Company's Board of
Directors specifically identifying the nature of the failure;
(b) within thirty (30) days of receipt of such claim, the Board of
Directors shall determine whether they agree with Executive that a failure
has occurred and shall communicate, in writing, their determination to
Executive; and
(c) if Executive disagrees with the determination of the Board of
Directors, Executive, within ten (10) days of Executive's receipt of such
determination, may submit the claim to arbitration in accordance with the
provisions of Section 13.4 of this Agreement, and such determination shall
be final and binding upon the Company and Executive.
7.3 SOLE REMEDY. The payments provided in this Section 7 shall represent
the sole remedy for any claim Executive may have arising out of the Company's
failure to honor its obligations
7
and termination without Good Cause. The Company may condition payment of amounts
due under this Section 7 (other than Retirement Income and payments due to
Disability) upon the receipt of a release and covenant not to ▇▇▇ in a form
reasonably satisfactory to the Company.
SECTION 8 - TERMINATION FOR GOOD CAUSE
8.1 GENERALLY. The Company shall have the right to terminate Executive's
employment with the Company under this Agreement for Good Cause. As used in this
Agreement, the term "GOOD CAUSE" shall mean:
(a) Any wrongful act or acts by Executive, adverse to the
interests of the Company, resulting in, or intended to result directly or
indirectly in, significant or personal enrichment of Executive;
(b) A material failure by Executive substantially to perform his
duties with the Company (other than any such failure resulting from
incapacity due to mental or physical illness), and such failure results in
demonstrably material injury to the Company;
(ii) The willful, wanton, or reckless failure by Executive properly
to perform his duties with the Company (other than such failure resulting
from incapacity due to mental or physical illness); or
(iii) The conviction of a felony.
8.2 CONDUCT NOT CONSTITUTING GOOD CAUSE. Executive's employment shall in
no event be considered to have been terminated by the Company for Good Cause if
such termination took place as the result of (i) bad judgment or negligence, or
(ii) any act or omission reasonably believed in good faith to have been in or
not opposed to the interest of the Company.
8.3 NOTICE. In the event the Company seeks to terminate this Agreement
for Good Cause, the Company shall provide written notice to Executive of the
conduct which the Company believes constitute Good Cause. Executive shall have
ten (10) business days from receipt of such notice to provide the Company with a
written statement setting forth (i) reasons, if any, that such conduct does not
constitute Good Cause or (ii) Executive's recommendation for a remedy for cure.
Within ten (10) business days of receipt of such statement, the Company shall
notify Executive in writing whether it accepts Executive's statement or whether
the Company intends to proceed to terminate this Agreement for Good Cause.
During the notice periods provided in this Section 8.3, the Company may place
Executive on paid leave of absence status.
8.4 PROCEDURES. Executive shall not be deemed to have been terminated
for Good Cause unless and until there shall have been delivered to Executive a
copy of a resolution duly adopted by the affirmative vote of not less than sixty
percent (60%) of the entire membership of the Board of Directors (excluding
Executive if a member of the Board) at a meeting of the Board (after reasonable
notice to Executive and an opportunity for Executive, together with Executive's
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, Executive was guilty of any of the conduct set forth above in
Section 8.1 above. However, pending a final determination of the Board, the
Board shall have the authority to place Executive on "leave of absence status,"
with or without pay in the sole discretion of the Board as determined by a
majority of the Board, provided that the Board shall make a final determination
within a reasonable time under the facts and circumstances and that if Good
Cause is not found Executive shall be paid retroactively for any unpaid leave of
absence.
8
8.5 FURTHER OBLIGATIONS. In the event that the Company shall terminate
Executive's employment under this Agreement for Good Cause, the Company shall
have no further obligation to Executive under this Agreement except to pay
Executive's Base Compensation, auto allowance, if any, and unused vacation
earned through the date of termination, on or before the next regularly
scheduled pay date after termination and to perform such other obligations as
imposed by law.
SECTION 9 - VOLUNTARY TERMINATION OTHER THAN SECTION 9
Executive may voluntarily terminate Executive's employment with the
Company under this Agreement, other than as provided in Section 7 hereof, upon
not less than ninety (90) days prior written notice to the Company. In the event
that Executive terminates Executive's employment pursuant to this Section 9, the
Company shall have no further obligation to Executive under this Agreement
except to pay Executive's Base Compensation, auto allowance, if any, and unused
vacation earned through the date of resignation and to perform such other
obligations as imposed by law. Notwithstanding the preceding sentence, Executive
shall also be paid the retirement income provided for in Section 2.7 hereof
provided Executive satisfies the requirements contained in Section 2.7. In the
event of Executive's voluntary resignation, the Company may remove Executive
from Executive's position and require partial or no further services from
Executive provided that the Company shall continue to pay and provide benefits
to Executive until the expiration of the notice period.
SECTION 10 - TERMINATION UPON DEATH
Executive's employment under this Agreement shall terminate upon the death
of Executive. Upon such termination, Executive's designated beneficiary, or
Executive's personal representative shall receive the payments/benefits
described below from the Company:
(a) SALARY. Executive's unpaid Base Compensation, auto allowance,
if any, earned through the date of termination and a lump sum payment for
any unused vacation shall be paid on or before the next regularly
scheduled pay date after termination.
(b) BONUS. If Executive dies on or before March 31, 2004, then an
amount equal to a full year's participation in the annual bonus plan then
in effect as provided for in Section 2.4 hereof shall be paid within the
time period prescribed by such plan (i.e. Executive will be paid based
upon actual results as if Executive had been employed the full twelve
months and had received the full twelve month Base Compensation). If
Executive dies after March 31, 2004, then an amount equal to a pro-rata
share of the amount set forth in the preceding sentence based upon the
number of full months Executive was actually employed during such fiscal
year shall be paid immediately to Executive's spouse, or in the event
Executive is not married, to his children, or in the event Executive has
no children, to his estate.
(c) BENEFITS. Benefits will continue for Executive's spouse and
eligible dependents in accordance with Company policy and as required by
law.
(d) RETIREMENT INCOME. The retirement income shall be paid as
provided in Section 2.7 hereof.
9
SECTION 11 - POST TERMINATION CONSULTING AND COOPERATION
For the two (2) year period subsequent to the termination of Executive's
employment under this Agreement, regardless of whether such termination is by
Executive or by the Company or whether it is with or without Good Cause,
Executive, at the sole discretion of the Company, shall provide the Company and
its designated agents, advisors, and executives with such consultation as the
Company may reasonably request concerning matters within the scope of
Executive's duties. However, Executive shall have no consulting obligation under
this Section 11 if Executive resigns under circumstances that entitle Executive
to payments under Section 7 hereof.
Executive further agrees that Executive shall cooperate with the Company
in any legal proceedings involving the Company or its subsidiaries (including
attendance at depositions or other proceedings as requested by the Company) in
connection with matters relating to events or conduct occurring (or claimed to
have occurred) during the period of Executive's services with the Company.
The Company shall pay Executive an hourly rate of one hundred fifty
dollars ($150.00) per hour and reimburse Executive for all reasonable expenses
and out-of-pocket costs incurred in connection with fulfilling Executive's
obligations under this Section 11. The Company shall endeavor to schedule such
consulting and cooperation so that Executive's obligations under this Section 11
to assist Company shall not unreasonably interfere with Executive's business
prospects or responsibilities to a new employer.
SECTION 12 - BREACHES AND REMEDIES
Executive acknowledges and agrees that in the event that Executive
violates the undertakings set forth in Section 4 or 5 hereof, other than in an
immaterial fashion, in addition to any other rights or remedies to which it may
be entitled under law or this Agreement, the Company shall, except as prohibited
by applicable law, cease making any severance or other payments hereunder and
shall be entitled to enforce the provisions of Section 4 or 5 by injunction or
other equitable relief, without having to prove irreparable harm or inadequacy
of money damages.
SECTION 13 - MISCELLANEOUS
13.1 SEVERABILITY. The provisions contained in this Agreement are
severable and in the event any provision shall be held to be invalid,
unenforceable or overbroad, in whole or in part, by a court of competent
jurisdiction, the remainder of such provision and of this Agreement shall not be
affected thereby and shall be given full force and effect.
13.2 NOTICES. Any notices, requests, demands, or other communications
provided for by this Agreement shall be sufficient if made in writing delivered
personally or if sent by registered or certified mail, return receipt requested.
13.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns, and to the
benefit of Executive, Executive's heirs and legal representatives, except that
Executive's duties to perform future services are expressly agreed to be
personal and not to be assignable or transferable.
13.4 APPLICABLE LAW, ARBITRATION AND JURISDICTION. This Agreement shall
be governed by and construed under the laws of the State of Ohio. The parties
agree that any dispute arising out of this employment relationship except for
disputes arising under Sections 4 and 5 of this Agreement shall be settled by
arbitration conducted in accordance with the rules of conciliation and
arbitration of the
10
American Arbitration Association, such arbitration to be conducted in Cleveland,
Ohio, or at such other location as the parties may agree. Costs of such
arbitration, including Executive's attorneys fees (to the extent such fees are
reasonable), shall be borne by the Company. Discovery shall be permitted in the
arbitration and the arbitrator shall have the authority to grant such remedies
as are available under applicable law. With respect to disputes arising under
Sections 4 and 5 of this Agreement, Executive and the Company consent and submit
themselves to the jurisdiction of the courts of the State of Ohio.
13.5 AMENDMENT. This Agreement may be amended only by a written document
signed by both parties.
13.6 NO WAIVER. No waiver by either party at any time of any breach by
the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
13.7 HEADINGS. The headings contained in this Agreement are for reference
only and shall not affect the meaning or interpretation of any provision of this
Agreement.
13.8 PRIOR AGREEMENTS. This Agreement supersedes in all respects all
prior employment agreements between the parties, whether written or oral,
regarding the subject matter hereof, including, but not limited to, the
Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
CORRPRO COMPANIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________
Its: Director
____________________________
"COMPANY"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
_________________________________
▇▇▇▇▇▇ ▇▇▇
"EXECUTIVE"
11