EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of this 1st day
of July, 2002, is by and between Corrections Corporation of America, a Maryland
corporation with its principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a resident of South
Lake, Texas (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to engage Executive as its Chief Operating
Officer, subject to the terms of an executive employment agreement; and
WHEREAS the Company and the Executive now desire to enter into this
Agreement and set forth the terms and conditions of the Executive's employment
with the Company.
NOW, THEREFORE, for and in consideration of the foregoing recitals, the
mutual promises and covenants set forth below, and other good and valuable
consideration, receipt of which is hereby acknowledged, the Company and the
Executive do hereby agree as follows:
1. Employment. The Executive shall serve as the Chief Operating Officer
of the Company and such other office or offices to which Executive may be
appointed or elected by the Board of Directors. Subject to the direction and
supervision of the Board of Directors of the Company, the Executive shall
perform such duties as are customarily associated with the office of Chief
Operating Officer and such other offices to which Executive may be appointed or
elected by the Board of Directors. The Executive's principal base of operations
for the performance of his duties and responsibilities under this Agreement
shall be the offices of the Company located in Nashville, Tennessee. It is
expressly acknowledged by the Company that the Executive shall perform his
duties and responsibilities under this Agreement during the first year of the
Term (as hereinafter defined) while commuting on a weekly basis from his home in
South Lake, Texas. The Executive agrees to abide by the Company's Charter and
Bylaws as in effect from time to time and the direction of its Board of
Directors except to the extent such direction would be inconsistent with
applicable law or the terms of this Agreement.
2. Term. Subject to the provisions of termination as hereinafter
provided, the initial term of the Executive's employment under this Agreement
shall begin on July 1, 2002 and shall terminate on December 31, 2003 (the
"Initial Term"). Unless the Company notifies the Executive that his employment
under this Agreement will not be extended or the Executive notifies the Company
that he is not willing to extend his employment, the term of his employment
under this Agreement shall automatically be extended for a series of three (3)
additional one (1) year periods on the same terms and conditions as set forth
herein (individually, and collectively, the "Renewal Term"). The Initial Term
and the Renewal Term are sometimes referred to collectively herein as the
"Term."
3. Notice of Non-Renewal. If the Company or the Executive elects not to
extend the Executive's employment under this Agreement, the electing party shall
do so by notifying the other party in writing not less than sixty (60) days
prior to the expiration of the Initial Term, or sixty (60) days prior to the
expiration of any Renewal Term. The Executive's date of termination, for
purposes of this Agreement, shall be the date of the Company's last payment to
the Executive. For the purposes of this Agreement, the election by either the
Company or the Executive not to extend the Executive's employment hereunder for
any renewal term shall be deemed a termination of the Executive's employment
without "Cause," as hereinafter defined.
4. Compensation.
4.1. Base Salary. The Company shall pay the Executive an annual salary
("Base Salary") of $275,000, which shall be payable to the Executive hereunder
in accordance with the Company's normal payroll practices, but in no event less
often than bi-weekly. Commencing in February 2003 (or at such other time during
the first or second quarter of 2003 when annual compensation for 2003 is
reviewed and considered) and following each year of the Executive's employment
with the Company thereafter, the Executive's compensation will be reviewed by
the Board of Directors of the Company, or a committee or subcommittee thereof to
which compensation matters have been delegated, and after taking into
consideration both the performance of the Company and the personal performance
of the Executive, the Board of Directors of the Company, or any such committee
or subcommittee, in their sole discretion, may increase the Executive's
compensation to any amount it may deem appropriate.
4.2. Bonus. In the event both the Company and the Executive each
respectively achieve certain financial performance and personal performance
targets as established by the Board of Directors of the Company, or a committee
or subcommittee thereof to which compensation matters have been delegated,
pursuant to a cash compensation incentive plan or similar plan established by
the Company, the Company shall pay to the Executive an annual cash bonus during
the Term of this Agreement pursuant to the terms of such plan. This bonus shall
be payable to the Executive within ten (10) days following the confirmation by
the Board of Directors or applicable committee or subcommittee that such targets
have been met under the applicable plan for the relevant fiscal year.
Notwithstanding the foregoing, the Company shall pay to the Executive a minimum
bonus of $34,375 with respect to the Company's 2002 fiscal year (the "2002
Guaranteed Bonus Compensation"), regardless of whether the performance targets
described above have been met with respect to such fiscal year. In addition, the
Company shall pay to the Executive a minimum bonus of $50,000 with respect to
the Company's 2003 fiscal year (the "2003 Guaranteed Bonus Compensation," and
together with the 2002 Guaranteed Bonus Compensation, the "Guaranteed Bonus
Compensation"), regardless of whether the performance targets described above
have been met with respect to such fiscal year. The Guaranteed Bonus
Compensation shall be payable to the Executive within ten (10) days following
the confirmation by the Board of Directors or applicable committee or
subcommittee that such targets have not been met under the applicable plan for
the applicable fiscal year, and in no event shall the Guaranteed Bonus
Compensation be paid with respect to any subsequent fiscal year regardless of
whether the performance targets for such subsequent years have been met or have
not been met. If each of the performance targets described above are met for the
applicable fiscal year, then the Company shall pay to the Executive only the
cash bonus due to the
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Executive pursuant to the applicable plan and the Guaranteed Bonus Compensation
shall not be paid in addition thereto. The Board of Directors of the Company or
applicable committee or subcommittee may review and revise the terms of the cash
compensation incentive plan or similar plan referenced above at any time, after
taking into consideration both the performance of the Company and the personal
performance of the Executive, among other factors, and may, in their sole
discretion, amend the cash compensation incentive plan or similar plan in any
manner it may deem appropriate; provided, however, that any such amendment to
the plan shall not affect (i) the Executive's right to participate in such
amended plan or plans, and (ii) the Executive's right to receive the Guaranteed
Bonus Compensation only in the event the performance targets are not met with
respect to the 2002 or 2003 fiscal year.
4.3. Benefits. The Executive shall be entitled to four (4) weeks of
paid vacation annually. In addition, the Executive shall be entitled to
participate in all compensation or employee benefit plans or programs and
receive all benefits and perquisites for which any salaried employees are
eligible under any existing or future plan or program established by the Company
for salaried employees. The Executive will participate to the extent permissible
under the terms and provisions of such plans or programs in accordance with
program provisions. These may include group hospitalization, health, dental
care, life or other insurance, tax qualified pension, savings, thrift and profit
sharing plans, termination pay programs, sick leave plans, travel or accident
insurance, disability insurance, and contingent compensation plans including
unit purchase programs and unit option plans. Nothing in this Agreement shall
preclude the Company from amending or terminating any of the plans or programs
applicable to salaried or senior executives as long as such amendment or
termination is applicable to all salaried employees or senior executives. In
addition, the Company shall pay, or reimburse Executive for, all membership fees
and related costs in connection with Executive's membership in professional and
civic organizations which are approved in advance by the Company.
4.4. Relocation Expenses. The Company shall reimburse the Executive for
all reasonable moving expenses and other customary relocation expenses incurred
in connection with the sale of the Executive's principal residence located in
South Lake, Texas and the Executive's purchase of a new principal residence in
the Nashville, Tennessee metropolitan area. In addition, the Company shall
reimburse the Executive for all reasonable and customary real estate brokerage
costs related to the sale of the Executive's principal residence in South Lake,
Texas.
4.5. Expenses Incurred in Performance of Duties. The Company shall
promptly reimburse the Executive for all reasonable travel and other business
expenses incurred by the Executive in the performance of his duties under this
Agreement upon evidence of receipt.
4.6. Withholdings. All compensation payable hereunder shall be subject
to withholding for federal ncome taxes, FICA and all other applicable federal,
state and local withholding requirements.
4.7. Stock Option. The Company hereby agrees to grant to the Executive
an option to purchase 170,575 shares of common stock, $0.01 par value per share,
of the Company, as hereinafter described. The option to be granted to the
Executive hereunder shall be subject to the
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applicable equity incentive plan of the Company governing the Company's stock
options in effect on the date of the option grant. The terms and conditions of
the option shall be set forth in an option agreement in form and substance
mutually satisfactory to the Company and the Executive and as provided for under
the terms of such equity incentive plan and the terms of this Agreement,
provided, however, that it is hereby agreed that such option agreement shall
provide that the option to purchase one-third (1/3) of the shares referenced
above shall vest on July 1, 2003, the option to purchase an additional one-third
(1/3) of such shares shall rest on July 1, 2004, and the option to purchase the
remaining one-third (1/3) of such shares shall vest on July 1, 2005. The
Executive hereby agrees to execute any other documents deemed reasonably
necessary by the Company and its legal counsel in connection with the stock
option.
5. Termination of Agreement.
5.1. General. During the term of this Agreement, the Company may, at
any time and in its sole discretion, terminate this Agreement with or without
Cause (as hereinafter defined) or upon a Change in Control (as hereinafter
defined), effective as of the date of provision of written notice to the
Executive thereof.
5.2. Effect of Termination With Cause. If the Executive's employment
with the Company shall be terminated with Cause: (i) the Company shall pay the
Executive his Base Salary earned through the date of termination of the
Executive's employment with the Company (the "Termination Date"); and (ii) the
Company shall not have any further obligations to the Executive under this
Agreement except those required to be provided by law or under the terms of any
other agreement between the Company and the Executive.
5.3. Definition of "Cause." For purposes of this Agreement, "Cause"
shall mean: (i) the death of the Executive; (ii) the permanent disability of the
Executive, which shall be defined as the inability of the Executive, as a result
of physical or mental illness or incapacity, to substantially perform his duties
pursuant to this Agreement for a period of one hundred eighty (180) days during
any twelve (12) month period; (iii) the Executive's conviction of a felony or of
a crime involving dishonesty or moral terpitude, including, without limitation,
any act or crime involving misappropriation or embezzlement of Company assets or
funds; (iv) willful or material wrongdoing by the Executive, including, but not
limited to, acts of dishonesty or fraud, which could be expected to have a
materially adverse effect on the Company or its subsidiaries or affiliates, as
determined by the Company and its Board of Directors; (v) material breach by the
Executive of a material obligation under this Agreement or of his fiduciary duty
to the Company or its stockholders; (vi) the Executive's intentional violation
of any applicable local, state or federal law or regulation affecting the
Company in any material respect, as determined by the Company and its Board of
Directors. Notwithstanding the foregoing, to the extent that any of the events,
actions or breaches set forth above are able to be remedied or cured by the
Executive, Cause shall not be deemed to exist (and thus the Company may not
terminate the Executive for Cause hereunder) unless the Executive fails to
remedy or cure such event, action or breach within twenty (20) days after being
given written notice by the Company of such event, action or breach.
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5.4. Effect of Termination Without Cause. If the Executive's employment
with the Company is terminated without Cause, the Company shall pay to the
Executive: (i) an amount equal to the Executive's Base Salary, based upon the
annual rate payable as of the date of termination, without any cost of living
adjustments, which shall be payable for a period of one (1) year from the date
of termination on the same terms and with the same frequency as the Executive's
Base Salary was paid prior to termination, and (ii) an amount equal to the
Guaranteed Bonus Compensation, which shall be payable within sixty (60) days
following the date of termination.
5.5. Effect of Termination Upon a Change in Control. If the Executive's
employment with the Company is terminated upon a Change in Control, the Company
shall (i) pay to the Executive a one-time payment, to be paid within sixty (60)
days of the date of termination, in an amount equal to 2.99 times the
Executive's Base Salary, based upon the annual rate payable as of the date of
termination, without any cost of living adjustments; (ii) reimburse Executive
for any Gross-Up Payment (as hereinafter defined) or other payment payable
pursuant to the provisions of Section 8 herein; and (iii) continue to provide
hospitalization, health, dental care, and life and other insurance benefits to
the Executive for a period of one (1) year following such termination on the
same terms and conditions existing immediately prior to termination.
Notwithstanding the foregoing, each of the following events shall be considered
a termination upon a Change in Control for purposes of this paragraph: (i) the
Executive's voluntary resignation for any reason following a Change in Control,
or (ii) a material reduction in the duties, powers or authority of the Executive
as an officer or employee of the Company following a Change in Control.
5.6. Definition of a "Change of Control". "Change of Control" shall
mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended), of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act) of fifty
percent (50%) or more of the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors, but excluding for the purpose
of this section, any such acquisition by (A) the Company or any of its
subsidiaries, (B) any employee benefit plan (or related trust) or (C)
any corporation with respect to which, following such acquisition, more
than fifty percent (50%) of the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by individuals and entities who, immediately
prior to such acquisition, were the beneficial owners of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors; or
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or entity
regardless of which entity is the survivor, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the
combined voting power of the voting securities of the
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Company or such surviving entity outstanding immediately after such
merger or consolidation; or
(iii) the stockholders of the Company approve a plan of
complete liquidation or winding-up of the Company or an agreement for
the sale or disposition by the Company of all or substantially all of
the Company's assets; or
(iv) any event which the Board of Directors determines should
constitute a Change in Control.
5.7. Resignation by the Executive. The Executive shall be entitled to
resign his employment with the Company at any time during the term of this
Agreement. If the Executive resigns his employment with the Company for any
reason other than as set forth in Section 5.5. herein: (i) the Company shall pay
the Executive his Base Salary earned through the date of termination of the
Executive's employment with the Company as the result of his resignation and
(ii) the Company shall not have any further obligations to the Executive under
this Agreement except those required to be provided by law or under the terms of
any other agreement between the Company and the Executive.
6. Non-Competition, Non-Solicitation and Confidentiality and
Non-Disclosure
6.1. Non-Competition, Non-Solicitation. The Executive hereby covenants
and agrees that during the Term of the Executive's employment hereunder and for
a period of one (1) year thereafter, Executive shall not, directly or
indirectly: (i) own any interest in, operate, join, control or participate as a
partner, director, principal, officer or agent of, enter into the employment of,
act as a consultant to, or perform any services for any entity (each a
"Competing Entity") which has material operations which compete with any
business in which the Company or any of its subsidiaries is then engaged or, to
the then existing knowledge of the Executive, proposes to engage; (ii) solicit
any customer or client of the Company or any of its subsidiaries (other than on
behalf of the Company) with respect to any business in which the Company or any
of its subsidiaries is then engaged or, to the then existing knowledge of the
Executive, proposes to engage; or (iii) induce or encourage any employee of the
Company or any of its subsidiaries to leave the employ of the Company or any of
its subsidiaries; provided, that the Executive may, solely as an investment,
hold not more than five percent (5%) of the combined voting securities of any
publicly-traded corporation or other business entity. The foregoing covenants
and agreements of the Executive are referred to herein as the "Restrictive
Covenant." The Executive acknowledges that he has carefully read and considered
the provisions of the Restrictive Covenant and, having done so, agrees that the
restrictions set forth in this Section 6.1., including without limitation the
time period of restriction set forth above, are fair and reasonable and are
reasonably required for the protection of the legitimate business and economic
interests of the Company. The Executive further acknowledges that the Company
would not have entered into this Agreement or agreed to grant the Executive the
stock option pursuant to Section 4.7 herein absent Executive's agreement to the
foregoing.
In the event that, notwithstanding the foregoing, any of the provisions
of this Section 6.1. or any parts hereof shall be held to be invalid or
unenforceable, the remaining provisions or parts
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hereof shall nevertheless continue to be valid and enforceable as though the
invalid or unenforceable portions or parts had not been included herein. In the
event that any provision of this Section 6.1. relating to the time period and/or
the area of restriction and/or related aspects shall be declared by a court of
competent jurisdiction to exceed the maximum restrictiveness such court deems
reasonable and enforceable, the time period and/or area of restriction and/or
related aspects deemed reasonable and enforceable by such court shall become and
thereafter be the maximum restrictions in such regard, and the provisions of the
Restrictive Covenant shall remain enforceable to the fullest extent deemed
reasonable by such court.
6.2 Confidentiality and Non-Disclosure. In consideration of the rights
granted to the Executive hereunder, the Executive hereby agrees that during the
term of this Agreement and for a period of three (3) years thereafter to hold in
confidence all information concerning the Company or its business, including,
but not limited to contract terms, financial information, operating data, or
business plans or models, whether for existing, new or developing businesses,
and any other proprietary information (hereinafter, collectively referred to as
the "Proprietary Information"), whether communicated orally or in documentary or
other tangible form. The parties to this Agreement recognize that the Company
has invested considerable amounts of time and money in attaining and developing
all of the information described above, and any unauthorized disclosure or
release of such Proprietary Information in any form would irreparably harm the
Company.
7. Indemnification. The Company shall indemnify the Executive to the
fullest extent that would be permitted by law (including a payment of expenses
in advance of final disposition of a proceeding) as in effect at the time of the
subject act or omission, or by the Charter or Bylaws of the Company as in effect
at such time, or by the terms of any indemnification agreement between the
Company and the Executive, whichever affords greatest protection to the
Executive, and the Executive shall be entitled to the protection of any
insurance policies the Company may elect to maintain generally for the benefit
of its officers or, during the Executive's service in such capacity, directors
(and to the extent the Company maintains such an insurance policy or policies,
in accordance with its or their terms to the maximum extent of the coverage
available for any company officer or director); against all costs, charges and
expenses whatsoever incurred or sustained by the Executive (including but not
limited to any judgement entered by a court of law) at the time such costs,
charges and expenses are incurred or sustained, in connection with any action,
suit or proceeding to which the Executive may be made a party by reason of his
being or having been an officer or employee of the Company, or serving as an
officer or employee of an affiliate of the Company, at the request of the
Company, other than any action, suit or proceeding brought against the Executive
by or on account of his breach of the provisions of any employment agreement
with a third party that has not been disclosed by the Executive to the Company.
The provisions of this Paragraph 7 shall specifically survive the expiration or
earlier termination of this Agreement.
8. Tax Reimbursement Payment.
(i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment
or distribution by or on behalf of the Company to or for the benefit of
Executive as a result of a Change in Control, as defined herein,
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(whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, a "Payment") would be subject
to the excise tax imposed by Section 4999 of the Code, or any interest
or penalties are incurred by Executive with respect to such excise tax
(such excise tax together with any such interest and penalties are
hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive
of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(ii) Subject to the provisions of subsection (iii) below, all
determinations required to be made under this Section 8., including
whether and when a Gross-Up Payment is required, the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm
or law firm selected by the Executive, subject to the consent of the
Company, which consent shall not be unreasonably withheld (the "Tax
Firm"); provided, however, that the Tax Firm shall not determine that
no Excise Tax is payable by the Executive unless it delivers to
Executive a written opinion (the "Tax Opinion") that failure to pay the
Excise Tax and to report the Excise Tax and the payments potentially
subject thereto on or with Executive's applicable federal income tax
return will not result in the imposition of an accuracy-related or
other penalty on Executive. All fees and expenses of the Tax Firm shall
be borne solely by the Company. Within fifteen (15) business days of
the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Company, the Tax Firm shall
make all determinations required under this Section 8., shall provide
to the Company and Executive a written report setting forth such
determinations, together with detailed supporting calculations, and, if
the Tax Firm determines that no Excise Tax is payable, shall deliver
the Tax Opinion to the Executive. Any Gross-Up Payment, as determined
pursuant to this Section 8., shall be paid by the Company to Executive
within fifteen (15) days of the receipt of the Tax Firm's
determination. Subject to the other provisions of this Section 8., any
determination by the Tax Firm shall be binding upon the Company and the
Executive; provided, however, that the Executive shall only be bound to
the extent that the determinations of the Tax Firm hereunder, including
the determinations made in the Tax Opinion, are reasonable and
reasonably supported by applicable law. The parties acknowledge,
however, that as a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by
the Tax Firm hereunder or as a result of a contrary determination by
the Internal Revenue Service, it is possible that Gross-Up Payments
which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that it is ultimately determined in accordance
with the procedures set forth in subsection (iii) below that the
Executive is required to make a payment of any Excise Tax, the Tax Firm
shall reasonably determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive. In determining the
reasonableness of the Tax Firm's
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determinations hereunder and the effect thereof, the Executive shall be
provided a reasonable opportunity to review such determinations with
the Tax Firm and the Executive's tax counsel. The Tax Firm's
determinations hereunder, and the Tax Opinion, shall not be deemed
reasonable until the Executive's reasonable objections and comments
thereto have been satisfactorily accommodated by the Tax Firm.
(iii) The Executive shall notify the Company in writing of any
claims by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than
thirty (30) calendar days after Executive actually receives notice in
writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid;
provided however, that the failure of Executive to notify the Company
of such claim (or to provide any required information with respect
thereto) shall not affect any rights granted to the Executive under
this Section 8. except to the extent that the Company is materially
prejudiced in the defense of such claim as a direct result of such
failure. The Executive shall not, unless otherwise required by the
Internal Revenue Service, pay such claim prior to the expiration of the
30-day period following the date on which he gives such notice to the
Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such 30-day period that
it desires to contest such claim, the Executive shall:
(1) give the Company and information reasonably
requested by the Company relating to such claim;
(2) take such action in connection with contesting
such claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney
selected by the Company and reasonably acceptable to
Executive;
(3) cooperate with the Company in good faith in order
effectively to contest such claim; and
(4) if the Company elects not to assume and control
the defense of such claim, permit the Company to participate
in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this subsection
(iii), the Company shall have the right, at its sole option, to assume
the defense of and control all proceedings in connection with such
contest, in which case it may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim
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and may either direct the Executive to pay the tax claimed and ▇▇▇ for
a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such claim
and ▇▇▇ for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify
and hold the Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that
any extension of the statue of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's right to assume the
defense of and control the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder, and the
Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other
taxing authority.
(iv) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to this Section 8., the Executive
becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company's complying with the
requirements of subsection (iii) above) promptly pay to the Company the
amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to subsection
(iii) above, a determination is made that the Executive is not entitled
to a refund with respect to such claim and the Company does not notify
the Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination,
then such advance shall, to the extent of such denial, be forgiven and
shall not be required to be repaid and the amount of forgiven advance
shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
9. Notices. Any notice required or desired to be given under this
Agreement shall be in writing and shall be delivered personally, transmitted by
facsimile or mailed by registered mail, return receipt requested, or delivered
by overnight courier service and shall be deemed to have been given on the date
of its delivery, if delivered, and on the third (3rd) full business day
following the date of the mailing, if mailed, to each of the parties thereto at
the following respective addresses or such other address as may be specified in
any notice delivered or mailed as above provided:
(i) If to the Executive, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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(ii) If to the Company, to:
Corrections Corporation of America
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Attention: Chief Executive Officer and President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10. Waiver of Breach. The waiver by either party of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by the other party.
11. Assignment. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. The Executive acknowledges that the services to be
rendered by him are unique and personal, and the Executive may not assign any of
his rights or delegate any of his duties or obligations under this Agreement.
12. Entire Agreement. This instrument contains the entire agreement of
the parties. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
13. Controlling Law. This Agreement shall be governed and interpreted
under the laws of the State of Tennessee.
14. Headings. The sections, subjects and headings in this Agreement are
inserted for convenience nly and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Enforcement. If the Executive is the prevailing party in any
dispute among the parties hereto regarding the enforcement of one or more of the
provisions of this Agreement, then the Company shall reimburse the Executive for
any reasonable attorneys' fees and other expenses incurred by him in connection
with such dispute.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written.
EXECUTIVE:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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COMPANY:
Corrections Corporation of America
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: CEO and President
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