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THIS EMPLOYMENT AGREEMENT (THE “AGREEMENT”) is
effective the 9th day of December, 2008, by and between ePlus,
inc. a Delaware corporation (the “Company” or,
collectively with its subsidiaries, the “Companies”)
and Bruce M. Bowen (the “Executive”).
RECITAL
The Executive is employed as the Company’s Executive Vice
President, 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 December 9, 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 his
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 December 9, 2008 through and including December 9, 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 his duties
to the Company and such failure was not cured within 30 days
of the Company’s 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’s 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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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.
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(e)
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“Good Reason” shall mean that within
thirty days prior to the Executive’s 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 or 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 as may be increased from time to
time or a reduction by the Company in the Executive’s or
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 mile 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 Company’s Executive Vice
President. The Executive shall be responsible for, but not limited
to, the following areas: the company’s strategy, organization
and operations for all of the Company’s leasing and financing
(non-trade) activities;
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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 his position; and
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c.
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devote his full business time, attention, skill and
energy to the business of the Company and 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 he has in publicly traded equity securities in
companies that are not in the same line of business as the
Company.
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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
Three Hundred Thirty Thousand Dollars ($330,000), which may be
increased from time to time. The base annual salary
shall be effective as of November 21, 2008.
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b.
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Based on his MBOs and overall company performance
he shall be eligible to be considered for an annual bonus of up to
50% of his 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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He 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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He 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 his professional, industry association memberships
incurred by him in performing his 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 his 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 his employment for Good Reason as defined in Section 2(e)
only if the Executive has provided the Board with 10 business
days notice of his intent to terminate his 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 11th 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 be 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 his 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 his then current base salary and
provide the Executive his 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 his 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 his 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 his 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 himself and his
dependants through COBRA for a period of one year after the
Termination Date. Should the Executive or any of his
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 him under
this Section and any amounts earned by the Executive subsequent to
his termination shall not serve as an offset to the payments due
him 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 Termin
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