EMPLOYMENT AGREEMENT
Exhibit 10.9.5
This
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of May 6, 2002, by and
between Xxxx Xxxx (“Employee”) and IdleAire Technologies Corporation, a Delaware corporation
(“Employer”), but effective as of the Effective Date.
Recital
Employee and Employer desire to enter into an agreement to set forth the terms and conditions of
Employee’s employment with Employer.
Agreement
In consideration of the promises and the mutual covenants hereinafter set forth, the parties agree
as follows:
1. Definitions. For purposes of this Agreement, the following terms, including both the
singular and the plural and whether or not capitalized, shall have the meanings assigned to them
below, as follows:
(a) “Affiliate” means with respect to any Person, any other Person which directly or
indirectly controls, is controlled by or is under common control with such Person.
(b) “Business” means the business of Employer on the date first above written, consisting of
providing HVAC, communication and other convenience services to parked vehicles.
(c) “Competitive Activity” means any business or activity of Employee or any third party that
is the same as the Business or competitive with the Business.
(d) “Confidential Information” means all confidential information and trade secrets of the
Employer, as generally understood pursuant to customary business practices of similarly situated
companies, Employer and their Affiliates including, without limitation, the following: the
identity, written lists, or descriptions of any customers, vendors, referral sources or
Organizations; financial statements, cost reports, or other financial information; contract
proposals or bidding information; business plans; training and operations methods and manuals;
personnel records; fee structures; and management systems, policies or procedures, including
related forms and manuals. “Confidential Information” shall not include any information or
knowledge which: (a) is
in the public domain other than by Employee’s breach of this Agreement; (b) is disclosed to
Employee lawfully by a third party who is not under any obligation of confidentiality; or (c) is
now or hereafter becomes generally known in the industry of Employer other than by Employee’s
breach of this Agreement.
(e) “Effective Date” means the date set forth in Section 3 hereof.
(f) “Noncompete Period” means the period beginning on the date hereof and ending on the
second anniversary of the date of the termination of Employee’s employment under any provision of
Section 7.
(g) “Nonsolicitation Period” means the period beginning on the date hereof and ending on the
second anniversary of the date of the termination of Employee’s employment under any provision of
Section 7.
(h) “Organization” means any organization that has contracted with Employer for the performance of
services in connection with the Business.
(i) “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated organization or government
body.
(j) “Purchaser” means any individual or entity that purchases all or substantially all the shares
of capital stock or assets of Employer, or any entity with which Employer merges.
(k) “Trade Area” means the United States of America.
2. Employment. Employer hereby employs Employee and Employee hereby accepts such
employment by Employer on the terms and conditions set forth in this Agreement.
3. Term. The term of this Agreement (the “Term”) shall commence on June 1, 2002
(“Effective Date”) and shall continue until the anniversary thereof, unless sooner terminated as
provided for herein; provided, however, that this Agreement may be renewed at Employer’s option for
additional one year periods (each a “Renewal Term”) on the anniversary of the Effective Date and on
each additional anniversary thereafter by Employer’s delivery of written notice at least sixty (60)
days prior to the expiration of the Term or any Renewal Term. Either Employee or Employer may
terminate this Agreement with or without Cause as provided in Section 7 below. Upon
termination of Employee’s employment with Employer pursuant to the terms contained in this
Agreement, Employer shall have no further liability to Employee with respect to this Agreement
except for compensation, fringe benefits and perquisites accrued and unpaid on the date of such
termination and except as otherwise specifically set forth herein. Upon termination of this
Agreement by Employee pursuant to the terms contained in this Agreement, Employee shall have no
further liability to Employer with respect to this Agreement except for the covenants of the
Employee contained in Sections 8 and 9 herein which survive the term of this Agreement and
except as specifically set forth herein.
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4. Position, Duties and Place of Performance. Employee agrees to serve as Chief
Financial Officer for the Employer or in such other capacities on behalf of Employer of reasonably
similar levels and duties as designated by Employer’s Board of Directors (“Board”). Employee shall
perform those duties, if so requested, which are consistent with such position.
5. Time and Efforts Devoted. During the term of this Agreement, Employee shall
devote all of his business time, energy, best efforts and attention to the business and affairs of
Employer and shall not engage, directly or indirectly, in any other business or businesses without
the consent of Employer.
6. Compensation; Benefits and Perquisites.
(a) Compensation. For all services rendered by Employee during the Term, Employer
shall pay Employee a base salary of $5000.00 per bi-weekly pay period ($130,000 on an annualized
basis), payable in equal installments and regular intervals at least monthly.
(b) Benefits and Perquisites. Employee shall be entitled to the following
benefits and perquisites and such other benefits as may be mutually agreed by Employer and Employee
in writing from time to time during the Term: (i) payment of Employee’s reasonable business travel
and other business expenses in accordance with employer’s applicable policies, provided Employee
properly accounts therefor in accordance with such policies; (ii) paid vacation, holidays and sick
leave in accordance with Employer’s policies; and (iii) all other applicable Employee benefits,
including, if applicable, medical, dental and disability insurance, profit sharing and other
benefits plans of Employer or its Affiliates, each in accordance with Employer’s policies.
7. Termination of Employment.
(a) Termination Events. Employee’s employment under this Agreement, and the Term, shall
terminate and neither party shall have any further rights or obligations under this Agreement
(except for the rights and obligations under those sections of this Agreement which are continuing
and shall survive such termination), on the earliest to occur of the following events:
(i) The sixtieth (60th) day following Employer’s receipt of notice of termination from
Employee.
(ii) The sixtieth (60th) day following Employee’s receipt of notice of termination without
Cause from Employer.
(iii) On the expiration date of the Term or any Renewal Term which is not renewed pursuant to
Section 3 above.
(iv) The death of Employee.
(v) Upon written notice to Employee by Employer, effective as of the date of such notice, if
Employee shall have become permanently disabled. For
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purposes of this Agreement, the term “permanently disabled” shall mean Employee’s incapacity
due to physical or mental illness such that she is or will be unable to perform the essential
functions of his previously assigned duties for a period of at least six (6) continuous months
where such incapacity has been determined to exist by either (x) Employer’s disability insurance
carrier or (y) by the Board in good faith based on competent medical advice. Any such termination
for disability shall be only as expressly permitted by the Americans with Disabilities Act.
(vi) The termination of Employee by Employer for “Cause” (as hereinafter defined). For purposes of
this Agreement, “Cause” shall mean and include, subject to the limitations described below, any
wrongful act or omission which constitutes: (A) Employee’s material neglect, refusal or failure to
diligently perform any lawful direction of Employer or comply with any other material obligation of
Employee under this Agreement, as determined in good faith by the Board or Employer’s Chairman and
such direction or obligation has not been cured within ten (10) days after written notice to
Employee of such neglect, refusal, failure or noncompliance; (B) Employee’s conviction of any crime
involving moral turpitude or any felony; (C) Employee’s commission of an act of theft or fraud in
connection with his duties hereunder; (D) Employee engaging in any discrimination or sexual
harassment with respect to Employees, customers or vendors of the Employer, the Employer or their
Affiliates; (E) Employee’s gross negligence or willful misconduct in connection with the
performance of his duties hereunder; or (F) any material
violation of Sections 8 or 9 hereof by
Employee.
(b) Payments after Termination. In the event Employer terminates
Employee’s employment during the Term without Cause pursuant to Section 7(a)(ii) above,
Employee shall have no further rights or claims against the Employer, the Employer, or their
Affiliates except for (i) the right to continue to be entitled to receive the base compensation
under Section 6(a) above for a period of ten (10) months following the date of Employee’s
termination (the “Severance Period”) payable ratably over the Severance Period in accordance with
the Employer’s normal payroll practices; (ii) reimbursement of all business expenses incurred by the
Employee prior to the date of termination; and (iii) the right to continue to receive during the
Severance Period all medical, dental or other health and welfare benefits provided to Employee
during the Term; provided, however, that such benefits shall cease to the extent Employee receives
similar benefits from any business which employs Employee during the Severance Period. In the
event of termination of the Employee’s employment for any reason other than by Employer without
Cause pursuant to Section 7(a)(ii) above, neither Employee nor his beneficiary or estate
will have any further rights or claims against the Employer, the Employer or their Affiliates except
for (i) the unpaid portion of the base compensation through the date of termination, (ii)
reimbursement of all business expenses incurred by the Employee prior to such date; and (iii) in the
event of Employee’s death or permanent disability, all rights of Employee under the terms of any
Employee benefit plans or insurance policies of Employer applicable to Employee.
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(c) Return of Employer’s Property. Employee agrees that, upon the termination of this
Agreement, Employee will immediately surrender to the Employer all of the Employer’s property,
including, without limitation, equipment, funds, lists, manuals, books, records or other
Confidential Information (including all copies of the foregoing) in the possession of, or provided
to, Employee.
8. Confidential Information and Goodwill; Inventions. Employee
acknowledges and agrees as follows:
(a) As a necessary function of Employee’s employment hereunder, Employee may have access to
and utilize Confidential Information which constitutes a valuable and essential asset of Employer’s
business;
(b) Employer’s relationship with its Employees and the recognition of Employer as a provider
of efficient and effective services in the Business are valuable and essential elements of the
goodwill of Employer; and
(c) All inventions, innovations, developments, improvements, methods, designs, analyses, drawings,
software, reports and all similar or related information (whether or not patented or patentable)
developed by Employee which (i) directly or indirectly relate to the Employer, the Employer or
their Affiliates or the Business, or (ii) result from any work performed by Employee while employed
by Employer, the Employer or their Affiliates shall belong to the Employer and its Affiliates.
Employee shall promptly disclose all such inventions to Employer’s Chairman and perform all actions
reasonably requested by Employer’s Chairman (whether during or after the Term or any Renewal Term)
to establish and confirm such ownership (including, without limitation, assignments, consents,
powers of attorney and other instruments).
9. Noncompetition, Nonsolicitation Protection of Confidential
Information. Employee covenants and agrees as follows:
(a) Noncompetition. At any time during the Noncompete Period, he will not, as an
officer, director, Employee, shareholder, owner, consultant, principal, agent, trustee or through
the agency of any corporation, partnership, association or agent or agency, except in his capacity
as an Employee of Employer, participate or engage in the Business or any Competitive Activity in
the Trade Area, and shall not be the owner, directly or indirectly, of more than five percent (5%)
of the outstanding capital stock of any corporation, partnership or other business engaged in any
Competitive Activity in the Trade Area.
(b) Nonsolicitation.
(i) At any time during the Nonsolicitation Period, Employee will not, except in his capacity
as an Employee of Employer,
(A) directly or indirectly induce any customer of Employer, the Employer or their Affiliates to
patronize any other individual or entity engaged in any Competitive Activity;
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(B) service, canvass, solicit or accept any business from any customer of Employer,
the Employer or their Affiliates for the purpose of competing with Employer, the Employer or their
Affiliates;
(C) directly or indirectly request or advise any customer or supplier of Employer, the
Employer or their Affiliates to withdraw, curtail or cancel such customer’s or supplier’s business
with Employer, the Employer or their Affiliates; or
(D) directly or indirectly disclose to any other Person the name or address of any customer
of Employer, the Employer or their Affiliates for the purpose of competing with Employer, the
Employer or their Affiliates.
(ii) At any time during the Nonsolicitation Period, Employee further agrees that she will not,
either directly or indirectly, through any Person with which she is now or may hereafter become
associated, solicit for employment or employ any person who is or was employed by Employer, the
Employer or their Affiliates at any time within the one (1) year period immediately preceding such
solicitation or employment without the written permission of the Employer.
(c) Disclosure. During the Term and for a period of two (2) years after the termination of
Employee’s employment hereunder for whatever reason, Employee will use good faith reasonable
efforts to preserve as confidential and not to, either directly or indirectly, publish, release,
disseminate, disclose or otherwise make available to any third party or use or otherwise exploit
for Employee’s own benefit or for the benefit of anyone other than Employer, any Confidential
Information, except as (i) may be expressly authorized by Employer in its sole discretion, (ii)
required during and in the course of Employee’s employment hereunder, or (iii) required by a
judicial order or decree or governmental law or regulation.
(d) Reasonable Restrictions. The restrictive covenants and agreements
contained in this Section 9 are reasonable with respect to subject matter, length of time
and geographic area, for the protection of the legitimate business interests of Employer,
including, without limitation, Employer’s Confidential Information, goodwill and expectation of
conducting its business without (i) competition from Employee in the Trade Area during the
Noncompete Period and (ii) solicitation by Employee of Employer’s Employees, suppliers, customers
or Business during the Nonsolicitation Period. Employee further acknowledges and agrees that the
restrictive covenants and agreement contained in this Section 9 constitute a material
inducement to Employer to enter into this Agreement.
10.
Remedies-Court Action. With respect to each breach
or threatened breach of Section 9 of
this Agreement and without waiver of any right or remedy which the Employer may elect to pursue
with respect thereto, all remedies available at law or in equity, including specific performance
and injunctive relief, may be pursued by the Employer at any time. The agreements and covenants
contained in Section 9 shall not be held invalid or unenforceable because of the scope of
the geographic area or actions subject thereto or restrictions imposed thereby, or the period of
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time within which such agreement or covenant is operative, but any judgment of a court of
competent jurisdiction may reform or define the maximum geographic area and actions subject to and
restricted by Section 9 and the period of time during which such agreement or covenant is
enforceable.
11. Captions and Number. The captions of the sections of this Agreement have been
inserted for convenience of reference only and shall not affect the interpretation of this
Agreement. Whenever it appears appropriate from the context, each term stated in either the
singular or plural shall include both the singular and the plural.
12. Assignment Neither this Agreement nor any rights or obligations hereunder may be
assigned, transferred or delegated by either party without the prior written consent of the other
party in his or its sole discretion, and any attempt to do so shall be void; provided, however,
that Employer shall have the right to assign this Agreement or any of its rights or obligations
hereunder to any Affiliate or Purchaser without the consent of Employee.
13. Separate Agreements. This Agreement shall be deemed to consist of a series of
separate covenants. Should a determination be made by a court of competent jurisdiction that the
character, duration, or geographical scope of any provision of this Agreement is unreasonable
in light of the circumstances as they then exist, then it is the intention and the agreement of the
Employer and Employee that this Agreement shall be construed by the court in such a manner as to
impose only those restrictions on the conduct of Employee which are reasonable in light of the
circumstances as they then exist and as are necessary to assure the Employer of the intended
benefit of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of
the separate covenants deemed included herein because, taken together, they are more extensive than
necessary to assure the Employer of the intended benefit of this Agreement, then it is expressly
understood and agreed by the Employer and Employee that those covenants which, if reformed in
accordance with the terms of Section 10 above or eliminated, would permit the remaining
separate covenants to be enforced in such proceeding, shall, for the purpose of such proceeding, be
deemed reformed or eliminated from the provisions hereof (as applicable).
14. Policies, Regulations and Guidelines for Employees. The Employer might issue
policies, rules, regulations, guidelines, procedures, or other informational material, whether in
the form of handbooks, memoranda, or otherwise, relating to Employer’s Employees. The parties
acknowledge and agree that such materials are general guidelines for Employee’s information and
shall not be construed to alter, modify or amend this Agreement for any purpose whatsoever.
15. Amendment. No amendment of this Agreement shall be valid unless made in writing
and signed by Employer and Employee.
16. Entire Agreement; Agreement Confidential. This Agreement contains the entire
agreement and understanding between Employer and Employee with respect to Employee’s employment and
supersedes all prior agreements, whether written or oral, relating to Employee’s employment with
Employer. No representations, inducements, or agreements have been made to induce either Employee
or Employer to enter into this Agreement which are not expressly set forth herein. This Agreement
is the sole source of rights and duties as between Employer and Employee
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relating to Employee’s employment by Employer. Except as required by law, Employee and Employer
agree to use reasonable commercial efforts to maintain as confidential the terms of this Agreement.
17.
Notice. All notices, consents, requests, approvals or other communications in
connection with this Agreement shall be in writing and shall be delivered personally or sent by
certified, registered or express mail, postage prepaid, or by Federal Express or similar overnight
courier service, or by facsimile transmission (with confirmation of transmission), and shall be
deemed delivered on the date received. Unless changed by written notice pursuant hereto, the
address of each party for the purposes hereof is as follows:
If to Employee:
Xxxx Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Employer:
Idleaire Technologies Corporation
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx. Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx. Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18.
Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE WITHOUT GIVING EFFECT TO THAT
STATE’S CHOICE OF LAW RULES.
19. Counterparts; Facsimile Execution. This Agreement may be executed (i) in
several counterparts, each of which shall be deemed an original, but together they shall constitute
one and the same instrument, and (ii) by facsimile transmission of signature pages executed by each
party, which shall be evidence of such party’s intention to be bound hereby, with duly signed
originals to be exchanged by the parties in due course.
20. Employee’s Representations and Warranties. Employee represents and warrants
that she has full right and authority to enter into this Agreement and fully perform his
obligations hereunder, that she is not subject to any non-competition agreement other than with
Employer, and that his past, present and anticipated future activities have not and will not
infringe on the proprietary rights of others. Employee further represents and warrants that she is
not obligated under any contract (including licenses, covenants or commitments of any nature) or
other agreement,
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or subject to any judgment, decree or order of any court or administrative agency, which would
conflict with his obligation to use his best efforts to promote the interests of Employer or which
would conflict with Employer’s business as conducted or proposed to be conducted. Neither the
execution nor delivery of this Agreement, nor the carrying on of Employer’s business as an officer,
director or Employee by Employee will conflict with or result in a breach of the terms, conditions
or provisions of, or constitute a default under, any contract, covenant or instrument under which
Employee is now obligated.
IMPORTANT: THIS AGREEMENT CONTAINS VERY IMPORTANT TERMS GOVERNING YOUR EMPLOYMENT WITH EMPLOYER.
SECTION 9 CONTAINS PROVISIONS WHICH AFFECT YOUR ABILITY TO TAKE CERTAIN ACTIONS FOLLOWING
THE TERMINATION OF THIS AGREEMENT. YOU SHOULD FEEL FREE TO SEEK ADVICE FROM YOUR ATTORNEY REGARDING
ANY MATTER RELATING TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT, YOU ARE AFFIRMING THAT YOU HAVE
HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND TO CONSULT WITH YOUR ATTORNEY IF YOU SO DESIRED,
THAT YOU UNDERSTAND THE MEANING AND SIGNIFICANCE OF ALL OF ITS PROVISIONS, THAT NO REPRESENTATIONS
OR PROMISES HAVE BEEN MADE TO YOU REGARDING YOUR EMPLOYMENT WHICH ARE NOT SET FORTH IN THIS
AGREEMENT, AND THAT YOU ARE FREELY SIGNING THIS AGREEMENT TO OBTAIN EMPLOYMENT WITH EMPLOYER.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| “EMPLOYEE” | ||||||
| /s/ Xxxx Xxxx | ||||||
| Xxxx Xxxx | ||||||
| “EMPLOYER” | ||||||
| IDLEAIRE TECHNOLOGIES CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Sr. VP and General Counsel | |||||
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