SENIOR MANAGEMENT AGREEMENT
Exhibit 10.9.4
THIS
SENIOR MANAGEMENT AGREEMENT (this “Agreement”) is made as of June 17, 2002, between
IDLEAIRE TECHNOLOGIES
CORPORATION, a Delaware corporation (the “Company”), and XXXXX X. XXXXX (“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 and General Counsel of the Company and shall have the normal duties,
responsibilities and authority of the Senior Vice President and General Counsel, 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
and General Counsel. 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 $150,000 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;
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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.
(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 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;
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(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 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
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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.
(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,
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(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 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
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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 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.
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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. Xxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, CEO
000 X. Xxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, CEO
If to the Executive:
Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxx 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
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.
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(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 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.
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* * * * *
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 | |||
| Xxxxx X. Xxxxx | ||||
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