SENIOR MANAGEMENT AGREEMENT
Exhibit 10.9.2
THIS SENIOR MANAGEMENT AGREEMENT (this “Agreement”) is made as of June 17, 2002, between IDLEAIRE
TECHNOLOGIES CORPORATION, a Delaware corporation (the “Company”), and XXXXX XXXXXXXX (“Executive”).
The parties hereto agree as follows:
1. Employment. The Company agrees to employ Executive and Executive accepts such
employment for the period beginning as of the date hereof and ending on the third
anniversary of the date hereof or upon Executive’s earlier separation pursuant to
Section 1(e) hereof (the “Employment Period”); provided, however, that the
Employment Period shall automatically be renewed for an additional two year period
commencing on the third anniversary of the date hereof unless either the Company or the
Executive gives the other at least 60 days written notice prior to the Expiration of the
Employment Period of its desire to terminate this Agreement.
(a) Position and Duties. During the Employment Period, Executive shall serve as the
Senior Vice President, Strategic Relationships of the Company and shall have the normal duties,
responsibilities and authority of the Senior Vice President, Strategic Relationships, subject to
the power of the Chairman, CEO or the Company’s board of directors (the “Board”) to expand
or limit such duties, responsibilities and authority and to override actions of the Senior Vice
President, Strategic Relationships. Executive shall report to the Board of the Company and
Executive shall devote his best efforts and substantially all of his business time and attention to
the business and affairs of the Company and/or its Subsidiaries. Notwithstanding the foregoing, it
is understood and agreed that Executive has certain other business interests and activities which
will require some time and efforts of Executive and the Company agrees that Executive may have
other business interests and activities and devote time thereto so long as the same do not
unreasonably detract from the performance of Executive’s duties to the Company.
(b) Salary, Bonus and Benefits. Effective as of the date hereof, the Company
will pay Executive a base salary of $175,000 per annum, payable in equal installments every two
weeks, subject to any annual increase during the Employment Period as
determined by the Board based upon the Company’s achievements of budgetary and other
objectives set by the Board (the “Annual Base Salary”). In addition, Executive
shall be eligible to receive an annual bonus (commencing with the Company’s fiscal year ending
December 31, 2000) based upon the Company’s achievement of budgetary and other objectives set by
the Board and
agreed upon by Executive and the Company in good faith. Executive’s Annual Base Salary for any
partial year will be prorated based upon the number of days elapsed in such year. In addition,
during the Employment Period, Executive will be entitled to such other benefits as are from time to
time made available to all of the Company’s senior executives, including vacation time, tuition
reimbursement, reimbursement of business expenses and healthcare, disability and life insurance
benefits.
(c) Business Expenses. The Company agrees that it shall, in accordance
with applicable tax laws and Company policies and any written agreement between
Executive and the Company, relating to reimbursed expenses for its executives, reimburse
Executive for all reasonable business expenses incurred by him during the term of
Executive’s employment hereunder in connection with the performance of services hereunder.
(d) Business Equipment. The Company shall provide Executive business equipment to
be utilized in accordance with the established policies, practices and procedures for executive
officers of the Company.
(e) Separation. Executive’s employment by the Company during
the Employment Period will continue until: (i) Executive’s resignation at any time which includes
resignation with Good Reason as hereinafter defined and resignation without Good
Reason, or (ii) until Executive’s disability or death, or (iii) until the Board terminates
Executive’s Employment at any time during the Employment Period. If the Employment Period is
terminated by Executive or by the Board without Cause, then the termination will be effective
thirty (30) days after the date of delivery of written notice of termination. If the Employment
Period is terminated by the Board with Cause, termination will be effective as of the date of
notice of termination. If the Employment Period is terminated by the Board
with Cause, then the Executive shall be entitled to receive his Annual Base Salary,
bonuses and his fringe benefits only through the effective date of termination. If
the Employment Period is terminated by the Board for any other reason or if
Executive resigns with Good Reason, then (i) all options shall vest in accordance
with their terms without reference to continuing employment, and (ii) the Executive
shall be entitled to receive his Annual Base Salary, accrued bonuses and his life
insurance, medical insurance and disability insurance benefits, if any, for one year
from the effective date of termination (such payments, the “Severance Payment”)
which shall be payable over time in accordance with normal payroll practices. If the
Employment Period is terminated due to death, then the Annual Base Salary and
medical insurance will be continued for one full calendar year following the month
in which the Executive died. If the Employment Period is terminated due to
Disability, then the Annual Base Salary, medical insurance and disability insurance
will be continued until the last day of the six-month period following Disability;
2
provided, however, that such Annual Base Salary shall be reduced by the amount of any disability
income payments made to the Executive during such six-month period from any insurance or other
policies paid for by the Company.
2. Termination Upon A Change In Control.
(a) If there is a “change in control” of the Company, Executive will
be deemed terminated and will receive the following lump sum cash payment and a
lien of the Severance Payment:
(i) If immediately before the “change in control” new stock of the Company was readily
tradeable on an established securities market or otherwise, and the shareholder approval
required under IRC § 280(G) was obtained with respect to such payment, then Executive
shall receive One Million Dollars ($1,000,000.00).
(ii) If the requirements of 2(a)(i) above are not met, Executive shall receive two hundred
ninety-nine percent (299%) of his “base amount” as defined
in IRC § 280(G)(d)(1)(2).
The payment to be made pursuant to paragraph 2(a) above shall be made within ninety (90) days of
the change in control.
(b) For purposes of this Agreement, the term “change in control” is
defined to include:
(i) A tender offer or exchange offer made and consummated for ownership of Company stock
representing fifty percent (50%) or more of the combined voting power of the Company’s
outstanding securities;
(ii) Sale or transfer of substantially all of the Company’s assets to another corporation which is
not a wholly owned subsidiary of the Company;
(iii) Any transaction relating to the Company which must be described in accordance with item 5(f)
of Schedule 14(A) of Regulation 14(A) of the Securities and Exchange Commission;
(iv) Any merger or consolidation of the Company with another
corporation where less than fifty percent (50%) of the outstanding voting shares of the surviving
resulting corporation are owned in the aggregate by the Company’s former stockholders; or
3
(v) Any tender offer, exchange offer, merger, sale of assets
and/or contested election which results in a total change in the composition of the Company’s Board
of Directors.
(c) The amounts paid to Executive pursuant to this paragraph will be
deemed severance pay in consideration of Executive’s past services to the Company
and his continued services from the date of this Agreement.
3. Confidential Information.
(a) Executive acknowledges that the Company is engaged in the
business of providing heating and cooling services for vehicles and providing related
convenience services (the “Business”). Executive further acknowledges that the
Business and its continued success depend upon the use and protection of a large
body of confidential and proprietary information, and that he holds a position of
trust and confidence by virtue of which he necessarily possesses, has access to and,
as a consequence of his signing this Agreement, will continue to possess and have
access to, highly valuable, confidential and proprietary information of the Company
and its Subsidiaries not known to the public in general, and that it would be
improper for him to make use of this information for the benefit of himself and
others. All of such confidential and proprietary information now existing or to be
developed in the future will be referred to in this Agreement as
“Confidential Information.” This includes, without specific limitation, information relating to the
Company’s marketing, products, internal management, the nature and operation of
the Business, the persons, firms and corporations which are customers or active
prospects of the Company during Executive’s employment by the Company, the
Company’s methodology and methods of doing business, strategic, acquisition,
marketing and expansion plans, including plans regarding planned and potential
acquisitions and sales, financial and business plans, employee lists, numbers and
location of sales representatives, new and existing programs and services (and those
under development), prices and terms, customer service, costs of providing service,
support and equipment and equipment maintenance costs. Confidential Information
shall not include any information that has become generally known to and available
for use by the public other than as a result of Executive’s acts or omissions.
(b) Disclosure of any Confidential Information of the Company shall not be prohibited if such
disclosure is required in the course of his employment or is directly pursuant to a valid and
existing order of a court or other governmental body or agency within the United States; provided,
however, that (i) Executive shall first have given prompt notice to the Company of any such
possible or prospective order (or proceeding pursuant to which any such order may result) and (ii)
Executive shall afford the Company a reasonable opportunity to prevent or limit any such
disclosure, all at Company’s expense.
4
(c) During the Employment Period and for a period of three (3) years thereafter, Executive will not
disclose any of the Confidential Information known to Executive or at any time in Executive’s
possession. In addition, during the Employment Period and at all times thereafter, Executive will
not disclose to any unauthorized person or use for his own account any of such Confidential
Information without the Board’s written consent. Executive agrees to deliver to the Company at a
Separation as described in Section 1(e), or at any other time the Company may request in
writing, all memoranda, notes, plans, records, reports and other documents (and copies thereof)
containing or otherwise relating to any of the Confidential Information (including, without
limitation, all acquisition prospects, lists and contact information) which he may then possess or
have under his control. Executive acknowledges that all such memoranda, notes, plans, records,
reports and other documents are and at all times will be and remain the property of the Company.
4. Non-Competition and Non-Solicitation. Executive acknowledges that in the
course of his employment with the Company he will become familiar with the Confidential
Information concerning the Company and that his
services will be of special, unique and extraordinary value to the Company. Executive
agrees that the Company has a protectable interest in the Confidential Information acquired
by Executive during the course of his employment with the Company. Therefore, Executive
agrees that:
(a) Non-Competition. So long as Executive is employed by the
Company and for an additional three (3) years thereafter (the “Non-Compete
Period”), he shall not work directly for any vehicle heating and cooling
business in the United States, which manufactures, markets, or designs products or
provides services, which products or services could reasonably be anticipated to
compete with the products or services, or planned products or services, of the
Company.
(b) Non-Solicitation. During the Non-Compete Period Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any person known by Executive
to be an employee of the Company to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any employee thereof, (ii) hire any person who was
known by Executive to be an employee of the Company or any of its Subsidiaries within sixty (60)
days prior to the time such employee was hired by the Executive, (iii)
knowingly induce or attempt to induce any owner of a site location, customer, supplier, licensee or
other business relation of the Company to cease doing business with the Company or in any way
knowingly interfere with the relationship between any such customer, supplier, licensee or business
relation and the Company or (iv) knowingly directly or indirectly acquire or attempt to acquire an
interest in any
5
business relating to the business of the Company and with which, to Executive’s knowledge, the
Company has entertained discussions or has requested and received information relating to the
acquisition of such business by the Company in the three-year period immediately preceding a
Separation.
(c) Enforcement. If, at the time of enforcement of Section 3 or 4 of this
Agreement, a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum duration, scope
or geographical area reasonable under such circumstances shall be substituted for the
stated period, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum duration, scope and area permitted
by law. Because Executive’s services are unique and because Executive has access to
Confidential Information, the parties hereto agree that money damages would be an
inadequate remedy for any breach of this Agreement. Therefore, in the event of a breach
or threatened breach of Section 3 or Section 4 of this Agreement, the Company or any of
its successors or assigns shall, in addition to other rights and remedies existing in
its favor, be entitled to pursue specific performance and/or injunctive or other relief
in order to enforce, or prevent any violations of, the provisions of Section 3 or
Section 4 from any court of competent jurisdiction.
(d) Additional Acknowledgments. Executive acknowledges that the provisions of this Section
are in consideration of: (i) employment with the Company and (ii) additional good and valuable
consideration as set forth in this Agreement. Executive expressly agrees and acknowledges that the
restrictions contained in Sections 3 and 4 do not preclude Executive from earning a livelihood, nor
does it unreasonably impose limitations on Executive’s ability to earn a living. In addition, Executive
agrees and acknowledges that the potential harm to the Company of its non-enforcement outweighs any
harm to the Executive of its enforcement by injunction or otherwise. Executive acknowledges that he
has carefully read this Agreement and has given careful consideration to the restraints imposed
upon the Executive by this Agreement, and is in full accord as to their necessity for the
reasonable and proper protection of the Confidential Information. Executive expressly acknowledges
and agrees that each and every restraint imposed by this Agreement is reasonable with respect to
subject matter, time period and geographical area.
GENERAL PROVISIONS
5. Definitions.
“Cause” means (i) the commission of a felony or a crime involving moral turpitude
or the intentional commission of any other act or omission
6
involving dishonesty or fraud with respect to the Company or any of their customers or suppliers,
(ii) substantial and repeated failure to perform duties of the office as agreed upon by the Company
and Executive held by Executive as reasonably directed by the Board not cured within ten (10)
business days after written notice thereof, (iii) gross negligence or willful misconduct with
respect to the Company; or (iv) any intentional material breach of Section 3 or 4 of this Agreement
by Executive not cured within ten (10) business days after written notice thereof from the Company.
Any election by the Company not to renew the Employment Period on the third anniversary of the date
hereof or any renewal thereof shall be deemed to be a termination by the Board without Cause. The
failure of the Company or the Executive to achieve budgetary or other operational objectives
established by the Board of Directors shall not in any way constitute Cause.
“Disability” means a physical or mental condition which, for a continuous period of at
least six (6) months has or will prevent the Executive from performing his duties on a full time
basis and in a professional and consistent manner. Any dispute as to the Executive’s Disability
shall be referred to and resolved by a licensed physician selected and approved by the Company and
the Executive.
“Good Reason” means (i) the assignment to the Executive of any duties inconsistent in any
material respect with the Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by this Agreement; (ii) any
change in the location of the performance of the duties such that the Executive is required to
travel or commute a substantially greater distance than he does prior to the change; (iii)
establishment of an Annual Base Salary for the Executive which is less than provided for in this
Agreement, or failure to pay same other than an isolated, inadvertent or insubstantial failure, not
occurring in bad faith; and (iv) any purported termination of Executive’s employment by the
Company, other than as specifically set forth herein.
“Person” means an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
6. Notices. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage prepaid and
return receipt requested) or sent by reputable overnight courier service (charges prepaid)
to the recipient at the address below indicated:
If to the Company:
7
IdleAire Technologies Corporation
000 X. Xxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, General Counsel
000 X. Xxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, General Counsel
If to the Executive:
Xxxxx Xxxxxxxx
0000 XxXxxxxxx Xx.
Xxxxxxxxx, XX 00000
0000 XxXxxxxxx Xx.
Xxxxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement will be
deemed to have been given when so delivered or sent or, if mailed, five days after deposit in the
U.S. mail.
7. General Provisions.
(a) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(b) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete agreement and
understanding among the parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
(c) Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
8
(d) Successors and Assigns. Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Executive and the Company and their
respective successors and assigns.
(e) Choice of Law. All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and construed in
accordance with the internal laws of the State of Tennessee, without giving effect to any choice of
law or conflict of law provision or rule that would cause the application of the laws of any
jurisdiction other than the State of Tennessee.
(f) Remedies. Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs (including attorney’s fees)
caused by any breach of any provision of this Agreement and to exercise all other rights existing
in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction (without posting any bond
or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent
any violations of the provisions of this Agreement.
(g) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the Company and the Executive.
(h) Business Days. If any time period for giving notice or taking action hereunder expires
on a day which is a Saturday, Sunday or holiday in the state in which the Company’s principal place
of business is located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.
(i)
Termination. This Agreement (except for the provisions of
Sections 1(a) and 1(b)) shall
survive a Separation as described in Section 1(e) and shall remain in full force and effect after
such Separation.
9
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Senior
Management Agreement on the date first written above.
| IDLEAIRE TECHNOLOGIES CORPORATION | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: Chief Executive Officer | ||||
| /s/ Xxxxx Xxxxxxxx | ||||
| Xxxxx Xxxxxxxx | ||||
10
