THIS EMPLOYMENT AGREEMENT (THE
“AGREEMENT”) is effective the 1st day of
September, 2008, by and between ePlus inc. a Delaware
corporation (the “Company”) and Elaine D. Marion (the
“Executive”).
RECITAL
The Company has offered employment to the
Executive as the Company’s Chief Financial Officer, and the
parties have negotiated this Agreement in consideration of the
Executive’s valuable services and expertise.
NOW THEREFORE, in consideration of the mutual
promises and covenants herein contained, the parties do hereby
agree as follows:
1. EFFECTIVE
DATE. This agreement shall be effective September 1,
2008.
2.
DEFINITIONS. As used herein, the following terms shall have
the following meanings:
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(a)
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“Incapacity” shall mean the
Executive’s physical or mental inability to perform her
duties under this Agreement, even with reasonable accommodation,
for more than twelve (12) weeks, whether or not consecutive, in any
twelve-month period.
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(b)
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“Employment Term” shall be the
period from September 1, 2008 through and including August 31,
2009.
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(c)
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“Expiration Date” means the date
that the Employment Term (as it may have been extended)
expires.
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(d)
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“Good
Cause” means that the Compensation Committee of the
Company’s Board of Directors (the “Board”) in
good faith determines that the Executive:
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i.
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Failed to
satisfactorily perform her duties to the Company and such
failure was not cured within 30 days of the Company providing
Executive with notice of such failure; or
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ii.
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Failed to
observe a material policy of the Company that was applicable to the
Executive and such failure was not cured within 30 days of the
Company providing Executive with notice of such failure;
or
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iii.
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Acted or failed
to act in a manner that constitutes gross misconduct, embezzlement,
misappropriation of corporate assets, fraud or negligent or willful
violations of any laws with which the Company is required to
comply; or
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iv.
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Was convicted
of or entered a plea of “guilty” or “no
contest” to a felony;
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v.
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Is directly
involved in a situation that would likely bring the Company into
substantial public disgrace or disrepute; or
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vi.
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Refused or
failed to comply with lawful and reasonable instructions of the
Board and such refusal or failure was not cured within 30 days of
the Company providing Executive with notice of such refusal or
failure; or
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vii.
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Any other
material breach of this Agreement or the duty of loyalty, provided
that such breach was not cured within 30 days of the Company
providing Executive with notice of such breach.
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(e)
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“Good
Reason” shall mean that within thirty days prior to the
Executive providing the notice to the Company required under
Section 6.b.ii of this Agreement that any of the following has
occurred:
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i.
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a material
change in the scope of the Executive’s assigned duties and
responsibilities or the assignment of duties or responsibilities
that are inconsistent with the Executive’s level of position;
or
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ii.
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a reduction by
the Company in the Executive’s base salary as set forth
herein or as may be increased from time to time or a reduction by
the Company in the Executive’s incentive compensation;
or
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iii.
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the
Company’s requirement that the Executive be based anywhere
outside of a 35 miles radius from the Company’s offices in
Herndon, Virginia; or
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iv.
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the failure by
the Company to continue to provide the Executive with benefits
substantially similar to those specified in Section 5 of this
Agreement.
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v.
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a termination
of employment by the Executive for any reason during the 90-day
period immediately following a Change of Control as “Change
of Control” is defined in the 2008 Employee Long-Term
Incentive Plan.
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(f)
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“Termination Date” shall mean the
date Executive’s termination is effective, as described in
the respective subparts of Section 6.
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3.
EMPLOYMENT
The Company and Executive hereby agree to employ
the Executive as set forth herein until Executive’s
employment terminates pursuant to Section 6 below.
4. POSITION,
DUTIES AND RESPONSIBILITIES. During the Employment Term, the
Executive shall:
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a.
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serve as the
Chief Financial Officer. The
Executive shall be responsible for, but not limited to, the
following areas: finance, tax, insurance, budget,
treasury and accounting.
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b.
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render such
other services to the Company as requested provided that such
services are consistent with the level of her position;
and
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c.
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devote her full
business time, attention, skill and energy to the business of the
Company and shall not engage or prepare to engage in any other
business activity, whether or not such business activity is pursued
for gain, profit or other economic or financial
advantage. With prior written approval from the Company,
Executive may engage in appropriate civic, charitable, or
educational activities provided that such activities do not
interfere or conflict with the Executive’s responsibilities
or the Company’s interests. Nothing in this
Agreement shall preclude Executive from acquiring or managing any
passive investment she has in publicly traded equity
securities.
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5. COMPENSATION,
COMPENSATION PLANS AND BENEFITS. During the Employment Term,
the Executive shall be compensated as follows:
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a.
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Executive shall
receive a base annual salary of two hundred seventy five thousand
(275,000.00 Dollars), which may be increased from time to
time.
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b.
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Based on her
MBOs, she shall be eligible to be considered for an annual bonus of
up to 50% of her base salary then in effect under the terms and
conditions as outlined in the Executive Incentive Plan,
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c.
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She shall be
entitled to participate in and receive other benefits offered by
the Company to all employees, which may include, but are not
limited to, vacation, sick holiday and other leave times, and
benefits under any life, health, accident, disability, medical, and
dental insurance plans.
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d.
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She shall be
entitled to be reimbursed for the reasonable and necessary
out-of-pocket expenses, including entertainment, travel and similar
items and all expenses necessary to maintain her professional,
industry association memberships incurred by her in performing her
duties, in accordance with the Company’s expense
reimbursement policies in place from time to time.
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e.
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In the event
Executive’s employment with Company terminates for any
reason, any payments and benefits due the Executive under the
Company’s employee benefit plans and programs, including any
Long-Term Incentive Plan, shall be determined in accordance with
the terms of such benefit plans and programs, and shall be in
addition to any other payments or benefits herein.
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6. TERMINATION OF
EMPLOYMENT
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a.
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Termination by
the Company.
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i.
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During the
Employment Term, the Company may terminate the Executive’s
employment for Good Cause. Termination by the Company
for Good Cause shall be effective on the date the Company gives
notice of such termination to the Executive.
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ii.
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During the
Employment Term, the Company may terminate the Executive’s
employment at any time without Good Cause upon 30-days notice to
the Executive or 30 days pay in lieu of such
notice. Termination is effective 30 days after the date
the written notice is provided to the Executive. The Company may,
in its sole discretion, place the Executive on paid administrative
leave as of any date prior to the end of the 30-day notice period
and require that the Executive no longer be present on Company
premises. During any period of administrative leave, the
Executive is not authorized to act or speak as a representative of
the Company.
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b.
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Termination by
Executive.
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i.
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During the
Employment Term, the Executive may voluntarily terminate her
employment for any reason with the Company upon 30 days prior
notice. Termination is effective 30 days after the date the notice
is provided to the Company. The Company may, in its sole
discretion, place the Executive on paid administrative leave as of
any date prior to the end of the 30-day notice period and require
that the Executive no longer be present on Company
premises. During any period of administrative leave, the
Executive is not authorized to act or speak as a representative of
the Company.
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ii.
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During the
Employment Term, the Executive may terminate her employment for
Good Reason as defined in Section 2(e) only if
the Executive has provided the Board with 10 business
days notice of her intent to terminate her employment for Good
Reason and the Company fails to cure the Good Reason within 10
business days after receiving Executive’s written
notice. Termination for Good Reason will be effective on
the 11 th
day after the Company receives
Executive’s written notice and fails to cure the Good Reason
identified in Executive’s notice.
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c.
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Termination by
Reason of Death or Incapacity.
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Executive’s employment with the Company
shall deemed to have been terminated effective upon the date of
Executive’s death, or the date upon which the Company
provides Executive with notice of Incapacity.
If the
Employment Term ends without the parties entering into a new
employment agreement or extending the Employment Term of this
Agreement, the Executive’s employment with the Company shall
continue on an at will basis and either the Company or the
Executive may terminate her employment at any time for any reason
or no reason upon 30 days notice. The Company may choose
to end the employment relationship at any time during any such
notice period, provided that the Company pays the Executive for the
balance of such notice period.
7. EFFECT OF
TERMINATION.
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a.
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If the
Executive’s employment ends at any time (during or after the
Employment Term) for any reason, the Company shall pay the
Executive her then current base salary and provide the Executive
her then current benefits (as provided in Section 5) through the
Termination Date.
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b.
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If during the
Employment Term the Executive’s employment terminates by
reason of death as described in Section 6(c), the Company shall
also pay the Executive’s estate any bonus as determined by
the Compensation Committee in accordance with the Company’s
Executive Incentive Plan.
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c.
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Provided that
after the Termination Date the Executive (i) signs in the form
provided by the Company a release of any claims Executive may have
against the Company or its then current or former officers,
directors, or employees and (ii) certifies that the Executive has
complied with Sections 8, 9, 10 11 and 12 of this
Agreement (confidentiality, intellectual property, non-compete,
non-solicit, conflict of interest and return of property
provisions), then:
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1) If during the Employment Term the
Executive’s employment is terminated by reason of Incapacity
as described in Section 6(c), the Company shall also pay the
Executive any bonus as determined by the Compensation Committee in
accordance with the Company’s Executive Incentive Plan, and
an additional amount equal to the greater of (a) one year of
Executive’s base salary or (b) the balance of her salary
through the end of the Employment Term.
2) If, during
the Employment Term, either the Company terminates
Executive’s employment without Good Cause as described in
Section 6(a) or Executive terminates her employment for Good
Reason, as described in Section 6(b)(ii), then (a) the Company
shall also pay Executive an amount equal to one year of the
Executive’s base salary; and (b) provided that the Executive
remains eligible for and timely elects to continue her and any
eligible dependants health benefits under COBRA, the Company shall
also pay to the insurer the amount necessary for the Executive to
continue medical and dental insurance for herself and her
dependants through COBRA for a period of one year after the
Termination Date. Should the Executive or any of her
dependants become covered under another employer’s health
benefit plan before the end of the one year period, the Company
will have no obligation to continue making such additional payments
to the insurer. The Executive shall not be obligated in
any way to mitigate the Company’s obligations to her under
this Section and any amounts earned by the Executive subsequent to
her termination shall not serve as an offset to the payments due
her by the Company under this Section.
3. If the parties have not entered
into a new employment agreement or extended the Employment Term
under this Agreement and within 10 days following the end of the
Employment Term either the Company or the Executive gives notice of
an At-Will Termination as described in Section
6(d), then (a) the
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