SENIOR MANAGEMENT AGREEMENT
Exhibit 10.9.5
THIS SENIOR MANAGEMENT AGREEMENT (this “Agreement”) is made as of September 12, 2007,
between IDLEAIRE TECHNOLOGIES CORPORATION, a Delaware corporation (the “Company”), and XXXX
X. XXXX (“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
Chief Financial Officer (“CFO”) of the Company and shall have the normal duties, responsibilities
and authority of the CFO, 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 CFO. Executive shall report to the CEO and 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, in a good faith
manner consistent with the best interests of the Company. 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 in the gross amount of $182,500 per annum, less applicable taxes and
withholdings, 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, 2007) 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 and any annual bonus 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 paid vacation, holidays, and sick leave,
tuition reimbursement, reimbursement of business expenses and healthcare, disability and life
insurance benefits as well as profit sharing and other benefit plans in accordance with the
Company’s policies. However, nothing herein shall be construed as limiting the Company’s right to
alter, amend or terminate any employee benefit plan it currently has in effect.
(c) Business Expenses. The Company shall, in accordance with applicable tax laws and
its travel and expense reimbursement policy, pay or reimburse Executive for all reasonable travel,
lodging or other business expenses reasonably incurred by him in connection with the performance of
his duties hereunder. Executive shall furnish such receipts and records as the Company may
reasonably require to verify the foregoing expenses.
(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 written notice of termination and the Executive
shall be entitled to receive his Annual Base Salary, bonuses and his fringe benefits only through
the effective date of termination, or as required by law. If the Employment Period is terminated
by the Board for any other reason or if Executive resigns with Good Reason, then (A) all options
shall vest in accordance with their terms without reference to continuing employment, and (B) 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 eighteen (18) months
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 (1) full calendar year following the month in which the
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Executive died and shall be payable to the Executive’s designated beneficiary or
his estate if no individual(s) has been so designated. 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 one (1) year period following the onset of such Disability;
provided, however, that such Annual Base Salary shall be reduced by the amount of any disability
income payments made to the Executive during such one (1) year period from any insurance or other
policies paid for by the Company.
(f) Professional Licenses. The Company shall pay all costs incurred by Executive to
maintain his professional licenses, including but not limited to all costs associated with
licensing fees, all fees and costs for continuing education and all fees and costs associated with
malpractice insurance.
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 not 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 Section 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;
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(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
(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 Board.
(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,
cooling and ventilation 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, fee structures, customer service, costs
of providing service, support and equipment and equipment maintenance costs. Confidential
Information shall not include any
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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 written 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.
(c) Subject to Section 3(b), during the Employment Period and at all times thereafter,
Executive will not disclose to any unauthorized person or use for his own account any 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, emails, 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.
(d) Executive agrees that all files, papers, records, documents, equipment and similar items
relating to the Business and all Confidential Information, whether prepared, compiled by, or
furnished to Executive in connection with Executive’s duties is the Company’s exclusive property
and shall not be copied or removed from the Company’s premises except in furtherance of the
Company’s business and all copies thereof shall be returned to the Company at its request or upon
termination of Executive’s employment. Executive further agrees that at the termination of his
employment, regardless of the reason for such termination, he shall promptly deliver to the Company
all computers, laptops, credit cards, telephones, PDAs, office equipment, software, discs, computer
tapes and documents regarding or relating to Executive’s employment with 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:
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(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, alone or
with others, directly or indirectly (as owner, stockholder, partner, member, lender, investor,
director, officer, employee, consultant, or otherwise) work for any vehicle heating, cooling and
ventilation business in the United States, which manufactures, markets, or designs products or
provides services, which are competitive 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, or reduce its 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
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, or threatened violations of, the provisions of Section 3 or Section 4 from any court of
competent jurisdiction. In the event that the Company shall enforce any part of this Agreement
through legal proceedings and the Executive shall have been in default hereof, the Executive agrees
to pay the Company any costs and attorneys’ fees reasonably incurred in connection therewith.
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(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.
5. Definitions.
“Cause” means (i) the conviction of, or plea of nolo contendere to, a felony or a
crime involving moral turpitude or the intentional commission of any other act or omission
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 which inaction or conduct has a material adverse effect on the Business,
operations or condition (financial or otherwise) of 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 shall not in any way
constitute Cause.
“Disability” means a physical or mental condition such that the Executive is or will
be unable to perform the essential functions of his previously assigned duties for a continuous
period of at least six (6) where such incapacity has been determined to exist by either: (i) the
Company’s disability insurance carrier or (ii) by the Board in good faith based upon competent
medical advice.
“Good Reason” means (i) the assignment to the Executive of any duties inconsistent in
any material respect with the Executive’s position (including status,
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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:
IdleAire Technologies Corporation
000 X. Xxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, General Counsel
000 X. Xxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, General Counsel
If to the Executive:
Xxxx X. Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxx
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
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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.
(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
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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.
* * * * *
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/ Xxxx X. Xxxx |
||||
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