EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement is made as of the 1st day of June, 2003, between
▇▇▇▇▇▇ Corporation ("▇▇▇▇▇▇"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("Executive").
The parties agree as follows:
1. Employment and Duties. The Company employs the Executive as Executive
Vice President-Operations. The Executive agrees to devote full time and
attention to the business of ▇▇▇▇▇▇ and its subsidiaries and affiliates and to
perform duties normally and properly incident to his position and such further
duties as may be assigned to him by the President or Board of Directors of
▇▇▇▇▇▇. The duties to be performed by the Executive under this Agreement shall
be primarily performed by him in the Richmond, Virginia metropolitan area,
provided, however, that the Executive shall travel to the extent reasonably
necessary to perform his duties hereunder.
2. Term. Unless sooner terminated pursuant to Sections 4, 5 or 6 of this
Agreement, the Company employs the Executive and the Executive agrees to serve
the Company for a term of one year from the date of this Agreement. The term of
this Agreement shall automatically be extended for additional terms of 1 year,
unless either party notifies the other in writing at least 90 days before the
expiration of the term of this Agreement that it does not wish to extend the
term. If the Company notifies the Executive that it does not wish to extend the
term of this Agreement, the Company shall be deemed to have terminated
Executive's employment without cause and Executive shall be entitled to the
benefits specified in Paragraph 6(b) of this Agreement. If the Executive
notifies the Company that Executive does not wish to extend the term of this
Agreement, Executive shall be deemed to have voluntarily left the employ of the
Company and the Company's obligations to the Executive under this Agreement
shall terminate.
3. Salary.
During the term of this Agreement, the Company shall pay (or cause to be
paid to) the Executive a salary at a rate of not less than four hundred thousand
dollars ($400,000) per year, which sum shall be payable in bi-weekly
installments. The Executive shall be entitled to participate in the Company's
bonus program and the Company agrees to review the
Executive's salary no less frequently than annually. In the event of an increase
in salary or the payment of a bonus, the other terms and conditions of this
Agreement shall remain in full force and effect. The salary in effect at any
given time is sometimes referred to in this Agreement as "Base Salary."
4. Termination by Death or Disability.
(a) Should the Executive die during the term of employment, the Company
shall be obligated to pay any salary and benefits to which the Executive may be
entitled until the end of the bi-weekly payroll period in which the death
occurs, and the Company shall pay to the Executive's personal representatives
amounts equal to and payable at the same time as the installments of Base Salary
theretofore regularly paid to the Executive for a period of twelve months
beginning as of the date of death.
(b) Should the Executive be unable to perform substantially all duties of
employment required under this Agreement for 90 consecutive days because of a
physical or mental disability, the Company shall then have the right to
terminate the Executive's employment by giving the Executive 30 days written
notice. After the date of termination, the Company shall pay to the Executive or
the Executive's personal representatives amounts equal to and payable at the
same time as the installments of Base Salary theretofore regularly paid to the
Executive for a period of twelve months beginning as of the date of termination.
The onset of a condition of disability under this Agreement shall be
determined by the Board of Directors on the basis of (i) a written opinion of a
licensed physician certified in his field of specialization and acceptable to
the Board, or (ii) the receipt of, or entitlement by the Executive to disability
benefits under any insurance policy or employee benefit plan provided or made
available by the Company or under Federal Social Security laws.
5. Termination for Cause. The Company, by action of the President or by
action of the Board of Directors, may at any time elect to terminate the
Company's obligations under this Agreement for "cause" and remove the Executive
from employment. Termination for cause shall be made upon 30 days' written
notice, and upon expiration of the 30-day notice period, all obligations of the
Company to the Executive under this Agreement shall cease.
For purposes of this Agreement "cause" shall be only the following:
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(a) continued and deliberate neglect by the Executive, after receipt
of notice thereof, of employment duties other than as a result of Executive's
physical or mental disability;
(b) willful misconduct of the Executive in connection with the
performance of his duties, including by way of example but not limitation,
misappropriation of funds or property of the Company; securing or attempting to
secure personally any profit in connection with any transaction entered into on
behalf of the Company or violation of any code of conduct or standards of ethics
applicable to employees of the Company;
(c) conduct by the Executive which may result in material injury to
the reputation of the Company if the Executive were retained in his position
with the Company, including by way of example but not limitation, commission of
a felony, bankruptcy, insolvency or general assignment for the benefit of
creditors;
(d) active disloyalty such as aiding a competitor;
(e) the Executive's inability to obtain or maintain any required
regulatory approvals or authorizations necessary for Executive to perform his
duties under this Agreement; or
(f) a breach by the Executive of Sections 7 or 8 of this Agreement.
6. Other Termination.
(a) If the Executive resigns or voluntarily leaves the employ of the
Company, except as set forth in Paragraph 6(c) below, the Company's obligations
to the Executive under this Agreement shall terminate and the Company shall have
no further liability to the Executive under this Agreement.
(b) The Company, by action of the President or by action of the Board
of Directors, may at any time elect to terminate the Company's obligations under
this Agreement without cause and remove the Executive from employment on 30
days' written notice. If the Company elects to terminate Executive's employment
without cause, then the Executive shall be entitled to receive, subject to
compliance by the Executive with the provisions of Sections 7 and 8 of this
Agreement, the compensation and benefits (but not any accrued or pro rata bonus)
due under this Agreement for a period of twelve (12) months from the date of
termination.
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(c) If the Executive terminates employment for Good Reason following
a Change in Control then Executive shall be entitled to receive, subject to
compliance by the Executive with the provisions of Sections 7 and 8 of this
Agreement, the compensation and benefits (but not any accrued or pro rata bonus)
due under this Agreement for a period of twelve (12) months from the date of
termination. At the end of the twelve (12) month period Executive shall also be
entitled to receive, subject to compliance by Executive with the provisions of
Sections 7 and 8 of this Agreement, a lump sum payment equal to the amount of
bonus, if any, received by Executive for the calendar year preceding the year in
which termination occurs. For these purposes "Change in Control" means the
occurrence of any of the following events:
(i) Stock Acquisition. 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 (the "Exchange Act"), (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20 percent or more of either
(A) the then outstanding shares of common stock of ▇▇▇▇▇▇ (the
"Outstanding Company Common Stock"), or (B) the combined voting power
of the then outstanding voting securities of ▇▇▇▇▇▇ entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a
change in control: (A) any acquisition directly from ▇▇▇▇▇▇; (B) any
acquisition by ▇▇▇▇▇▇; (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by ▇▇▇▇▇▇ or any
corporation controlled by ▇▇▇▇▇▇; or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A),
(B) and (C) of subsection (iii) of this Section; or
(ii) Board Composition. Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose
election or nomination for election by ▇▇▇▇▇▇'▇ shareholders was
approved by a vote of at least a
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majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individuals whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Business Combination. The consummation of a reorganization,
merger, consolidation, or sale or other disposition of all or
substantially all of the assets of ▇▇▇▇▇▇ (a "Business Combination"),
unless, following such Business Combination:
(A) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50 percent of, respectively,
the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result
of such transaction owns ▇▇▇▇▇▇ or all or substantially all of
the assets of ▇▇▇▇▇▇ either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be;
(B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related
trust) of ▇▇▇▇▇▇ or such corporation resulting from such Business
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Combination) beneficially owns, directly or indirectly, 20
percent or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination; and
(C) at least a majority of the members of the board of
directors or other governing body of the entity resulting from
such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board providing for such Business Combination.
(iv) Liquidation or Dissolution. Approval by the shareholders of
▇▇▇▇▇▇ of a complete liquidation or dissolution of ▇▇▇▇▇▇.
"Good Reason" means unless and to the extent otherwise waived in writing by
the Executive, the termination of the Executive's employment with the Company
which is initiated by the Executive and that occurs within 90 days of any of the
following events (excluding for this purpose, isolated, insubstantial and
inadvertent actions not taken in bad faith and which are remedied by the Company
within 15 days after receipt of written notice thereof given by the Executive):
(i) a decrease in the Executive's aggregate annual base salary and
incentive bonus opportunity in effect as of the date of the Change in
Control or a material reduction in the amount of additional benefits or
perquisites provided to the Executive as of the date of the Change in
Control;
(ii) the assignment of duties and responsibilities to the Executive
that materially reduce the level and types of duties and responsibilities
of the Executive as of the date of the Change in Control;
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(iii) a material change in the Executive's working conditions which
causes such working conditions to cease to be comparable to the working
conditions of similarly situated executives of Company and its subsidiaries
after the date of the Change in Control; or
(iv) the Company changes by 50 miles or more the principal location
in which the Executive is required to perform services from the location at
which the Executive was employed as of the date of the Change in Control.
7. Confidential Information and Trade Secrets. As consideration for and
to induce the employment of the Executive by the Company, the Executive agrees
that:
(a) All information relating to or used in the business and
operations of the Company and its subsidiaries and corporate affiliates
(including, without limitation, marketing methods and procedures, customer
lists, lists of professionals referring customers to the Company and its
subsidiaries and corporate affiliates, sources of supplies and materials and
business systems and procedures), whether prepared, compiled, developed or
obtained by the Executive or by the Company or any of its subsidiaries or
corporate affiliates prior to or during the term of this Agreement, are and
shall be confidential information and trade secrets ("Confidential Information")
and the exclusive property of the Company, its subsidiaries and corporate
affiliates. Confidential Information does not include information which (i) is
or was already in Executive's possession prior to employment, (ii) becomes
generally available to the public other than as a result of a disclosure by
Executive or (iii) becomes available to Executive on a non-confidential basis
from a source other than the Company, provided that such source is not known to
be bound by a confidentiality agreement or other obligation of secrecy with
respect to such information.
(b) All records of and materials relating to Confidential Information
or other information, whether in written form or in a form produced or stored by
any electrical or mechanical means or process and whether prepared, compiled or
obtained by the Executive or by the Company or any of its subsidiaries or
corporate affiliates prior to or during the term of this Agreement, are and
shall be the exclusive property of the Company or its subsidiaries or corporate
affiliates, as the case may be.
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(c) Except in the regular course of his employment or as the Company
may expressly authorize or direct in writing, the Executive shall not, during or
after the term of this Agreement and his employment by the Company, copy,
reproduce, disclose or divulge to others, use or permit others to see any
Confidential Information or any records of or materials relating to any such
Confidential Information. The Executive further agrees that during the term of
this Agreement and his employment by the Company he shall not remove from the
custody or control of the Company or its subsidiaries or corporate affiliates
any records of or any materials relating to Confidential Information or other
information and that upon the termination of this Agreement he shall deliver the
same to the Company and its subsidiaries and corporate affiliates.
8. Covenants. As consideration for and to induce the employment and
continued employment of the Executive by the Company, the Executive agrees that,
except in the regular course of his employment or as the Company may expressly
authorize or direct in writing, the Executive shall not, during the term of this
Agreement and for a period of 12 months immediately following the termination of
this Agreement, Executive will not directly or indirectly serve in an executive
or sales position for any entity that competes with ▇▇▇▇▇▇ and its subsidiaries.
These restrictions all benefit ▇▇▇▇▇▇ and their predecessors and successors,
whether by sale, merger, consolidation or otherwise.
9. Survival of Covenants and Remedies. The agreements made by the
Executive in Sections 7 and 8 shall survive the termination of this Agreement
and the Executive's employment. Each such agreement by the Executive shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action by the Executive against the
Company shall not constitute a defense to the enforcement of the provisions of
Sections 7 or 8. The Executive acknowledges and agrees that the Company will
sustain irreparable injury in the event of a breach or threatened breach by the
Executive of the provisions of Sections 7 or 8 and that the Company does not and
will not have any adequate remedy at law for such breach or threatened breach.
Accordingly, the Executive agrees that if he breaches or threatens to breach any
such covenant or agreement, the Company shall be entitled to immediate
injunctive relief. The foregoing shall not, however, be deemed to limit the
Company's remedies at law or in equity for any such breach or threatened breach.
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10. Notices. All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been given, delivered
or made when delivered personally or when mailed by registered or certified
mail, postage prepaid and return receipt requested, addressed to the Company at
its principal office in Richmond, Virginia, and to the Executive at his
residence as shown upon the employment records of the Company, or to such other
address as either party may by notice specify to the other.
11. Modification. No provision of this Agreement, including any provision
of this Section, may be modified, deleted or amended in any manner except by an
agreement in writing executed by Executive and the Company.
12. Benefit. All of the terms of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the Company and its successors and
assigns and by the Executive and his heirs and personal representatives.
13. Construction and Venue. This Agreement is executed and delivered in
the Commonwealth of Virginia and shall be construed and enforced in accordance
with the laws of such state. EXECUTIVE AND THE COMPANY AGREE THAT THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA OR THE CIRCUIT COURT
FOR THE COUNTY OF HENRICO, VIRGINIA SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY
DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision. In addition, if, at the time of enforcement of this Agreement, a
court holds that any restriction stated in this Agreement is unreasonable under
the circumstances then existing, the parties agree that the maximum restriction
reasonable under such circumstances shall be substituted for the stated
restriction.
15. Headings. The underlined headings provided in this Agreement are for
convenience only and shall not affect the interpretation of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
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17. Withholding. There shall be withheld from amounts due Executive under
this Agreement such income taxes, contributions and other amounts as may be
required to be withheld under applicable law.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
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Executive By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Chairman
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