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Exhibit 10.2 FIRST AMENDED AND RESTATED EMPLOYMENT
AGREEMENT This FIRST AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated as of this
21st day of August, 2008 is by and between Corrections Corporation
of America, a Maryland corporation with its principal place of
business at 10 Burton Hills Boulevard, Nashville, Tennessee (the
"Company"), and Damon T. Hininger, a resident of Nashville,
Tennessee (the "Executive") and amends and replaces in its entirety
that certain Employment Agreement, effective as of
September 1, 2007, between the Company and the Executive. W
I T N E S S E T H:
WHEREAS , the Executive has been promoted by the Company to
the position of President and Chief Operating Officer; and
WHEREAS , the Company and the
Executive now desire to enter into this Agreement and set forth the
terms and conditions of the Executive’s employment with the
Company. NOW, THEREFORE , for
and in consideration of the foregoing recitals, the mutual promises
and covenants set forth below and other good and valuable
consideration, receipt of which is hereby acknowledged, the Company
and the Executive do hereby agree as follows:
1. Employment . The
Executive shall serve as President and Chief Operating Officer of
the Company and such other office or offices to which Executive may
be appointed or elected by the Board of Directors. Subject to the
direction and supervision of the Board of Directors of the Company,
the Executive shall perform such duties as are customarily
associated with the office of President and Chief Operating Officer
and such other offices to which Executive may be appointed or
elected by the Board of Directors. The Executive’s principal
base of operations for the performance of his duties and
responsibilities under this Agreement shall be the offices of the
Company located in Nashville, Tennessee. The Executive agrees to
abide by the Company’s Charter and Bylaws as in effect from
time to time and the direction of its Board of Directors except to
the extent such direction would be inconsistent with applicable law
or the terms of this Agreement.
2. Term . Subject to the
provisions of termination as hereinafter provided, the initial term
of the Executive’s employment under this Agreement shall
begin on the date hereof and shall terminate on December 31,
2008 (the "Initial Term"). Unless the Company notifies the
Executive that his employment under this Agreement will not be
extended or the Executive notifies the Company that he is not
willing to extend his employment, the term of his employment under
this Agreement shall automatically be extended for a series of
three (3) additional one (1) year periods on the same
terms and conditions as set forth herein (individually, and
collectively, the "Renewal Term"). The Initial Term and the Renewal
Term are sometimes referred to collectively herein as the "Term."
3. Notice of Non-Renewal
. If the Company or the Executive elects not to extend the
Executive’s employment under this Agreement, the electing
party shall do so by notifying the other party in writing not less
than sixty (60) days prior to the expiration of the Initial
Term, or sixty (60) days prior to the expiration of any
Renewal Term. The Executive’s date of termination,
for purposes of this Agreement, shall be the date of the
Company’s last payment to the Executive. For the purposes of
this Agreement, the election by the Company not to extend the
Executive’s employment hereunder for any renewal term shall
be deemed a termination of the Executive’s employment without
"Cause," as hereinafter defined.
4. Compensation .
4.1 Base Salary . The Company
shall pay the Executive an annual salary ("Base Salary") of
$325,000, which shall be payable to the Executive hereunder in
accordance with the Company’s normal payroll practices, but
in no event less often than bi-weekly. Commencing at such time
during 2009 when annual compensation for 2009 is reviewed and
considered and following each year of the Executive’s
employment with the Company thereafter, the Executive’s
compensation will be reviewed by the Board of Directors of the
Company, or a committee or subcommittee thereof to which
compensation matters have been delegated, and after taking into
consideration both the performance of the Company and the personal
performance of the Executive, the Board of Directors of the
Company, or any such committee or subcommittee, in their sole
discretion, may increase the Executive’s compensation to any
amount it may deem appropriate. 4.2
Bonus . In the event both the Company and the Executive each
respectively achieve certain financial performance and personal
performance targets, as established by the Board of Directors, or a
committee or subcommittee thereof to which compensation matters
have been delegated, of the Company pursuant to a cash compensation
incentive plan or similar plan established by the Company, the
Company shall pay to the Executive an annual cash bonus during the
Term of this Agreement pursuant to the terms of such plan. This
bonus, if any, shall be paid to the Executive by March 15 of
the year following the year in which the services which gave rise
to the bonus were performed; provided, however, that if the Company
is unable to determine the amount of such bonus prior to such date,
then such bonus shall be paid no later than December 31 of
such year. The Board of Directors of the Company, or applicable
committee or subcommittee, may review and revise the terms of the
cash compensation incentive plan or similar plan referenced above
at any time, after taking into consideration both the performance
of the Company and the personal performance of the Executive, among
other factors, and may, in their sole discretion, amend the cash
compensation incentive plan or similar plan in any manner it may
deem appropriate; provided, however , that any such
amendment to the plan shall not affect the Executive’s right
to participate in such amended plan or plans.
4.3 Benefits . The Executive
shall be entitled to four (4) weeks of paid vacation annually.
In addition, the Executive shall be entitled to participate in all
compensation or employee benefit plans or programs and receive all
benefits and perquisites for which any salaried employees are
eligible under any existing or future plan or program established
by the Company for salaried employees. The Executive will
participate to the extent permissible under the terms and
provisions of such plans or programs in accordance with program
provisions. These may include group hospitalization, health, dental
care, life or other insurance, tax qualified pension, savings,
thrift and profit sharing plans, termination pay programs, sick
leave plans, travel or accident insurance, disability insurance,
and contingent compensation plans including unit purchase programs
and unit option plans. Nothing in this Agreement shall preclude the
Company from amending or terminating any of the plans or programs
applicable to salaried or
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senior executives as long as such amendment or termination is
applicable to all salaried employees or senior executives. In
addition, the Company shall pay, or reimburse Executive for, all
membership fees and related costs in connection with
Executive’s membership in professional and civic
organizations which are approved in advance by the Company.
Notwithstanding any other provision of this Section 4.3, the
Executive shall be reimbursed for such expenses no later than
December 31 of the year following the year in which such
expenses were incurred. 4.4
Expenses Incurred in Performance of Duties . The Company
shall promptly reimburse the Executive for all reasonable travel
and other business expenses incurred by the Executive in the
performance of his duties under this Agreement upon evidence of
receipt and in accordance with Company policies. Notwithstanding
any other provision of this Section 4.4, the Executive shall
be reimbursed for such expenses no later than December 31 of
the year following the year in which such expenses were incurred.
4.5 Withholdings . All
compensation payable hereunder shall be subject to withholding for
federal income taxes, FICA and all other applicable federal, state
and local withholding requirements.
5. Termination of
Agreement . 5.1 General .
During the term of this Agreement, the Company may, at any time and
in its sole discretion, terminate this Agreement with or without
Cause (as hereinafter defined) or upon a Change in Control (as
hereinafter defined), effective as of the date of provision of
written notice to the Executive thereof.
5.2 Effect of Termination With
Cause . If the Executive’s employment with the Company
shall be terminated with Cause: (i) the Company shall pay the
Executive his Base Salary earned through the date of termination of
the Executive’s employment with the Company (the "Termination
Date"); and (ii) the Company shall not have any further
obligations to the Executive under this Agreement except those
required to be provided by law or under the terms of any other
agreement between the Company and the Executive.
5.3 Definition of "Cause." For
purposes of this Agreement, "Cause" shall mean: (i) the death
of the Executive; (ii) the permanent disability of the
Executive, which shall be defined as the inability of the
Executive, as a result of physical or mental illness or incapacity,
to substantially perform his duties pursuant to this Agreement for
a period of one hundred eighty (180) days during any twelve
(12) month period; (iii) the Executive’s conviction
of a felony or of a crime involving dishonesty or moral turpitude,
including, without limitation, any act or crime involving
misappropriation or embezzlement of Company assets or funds;
(iv) willful or material wrongdoing by the Executive,
including, but not limited to, acts of dishonesty or fraud, which
could be expected to have a materially adverse effect, monetarily
or otherwise, on the Company or its subsidiaries or affiliates, as
determined by the Company and its Board of Directors; (v) material
breach by the Executive of a material obligation under this
Agreement or of his fiduciary duty to the Company or its
stockholders; or (vi) the Executive’s intentional
violation of any applicable local, state or federal law or
regulation affecting the Company in any material respect, as
determined by the Company and its Board of Directors.
Notwithstanding the foregoing, to the extent that any of the
events, actions or breaches set forth above are able to be
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remedied or cured by the Executive, Cause shall not be deemed to
exist (and thus the Company may not terminate the Executive for
Cause hereunder) unless the Executive fails to remedy or cure such
event, action or breach within twenty (20) days after being
given written notice by the Company of such event, action or
breach. 5.4 Effect of Termination
Without Cause . If the Executive’s employment with the
Company is terminated without Cause, the Company shall pay to the
Executive an amount equal to the Executive’s Base Salary,
based upon the annual rate payable as of the date of termination,
without any cost of living adjustments (the "Severance Amount"),
which shall be payable as provided below. If the Executive is
terminated under this Section 5.4 on or between January 1 and
March 14 of any given calendar year during the Term, then the
Severance Amount shall be payable for a period of one (1) year
from the date of termination on the same terms and with the same
frequency as the Executive’s Base Salary was paid prior to
termination. If the executive is terminated under this
Section 5.4 on or after March 15 and on or before
December 31 of any given calendar year during the Term, then
the Severance Amount shall be payable on the same terms and with
the same frequency as the Executive’s Base Salary was paid
prior to termination until March 14 of the following calendar
year whereupon the remainder of the Severance Amount shall be paid
in a lump sum payment to the Executive.
5.5 Effect of Termination Upon a
Change in Control . If the Executive’s employment with
the Company is terminated upon a Change in Control, the Company
shall (i) pay to the Executive a one-time payment, to be paid
within sixty (60) days of the date of termination (or, if
earlier, by March 15 of the year following the year in which
the Change in Control occurs), in an amount equal to 2.99 times the
Executive’s Base Salary, based upon the annual rate payable
as of the date of termination, without any cost of living
adjustments; (ii) reimburse Executive for any Gross-Up Payment
(as hereinafter defined) or other payment payable pursuant to the
provisions of Section 8 herein; and (iii) continue to
provide hospitalization, health, dental care, and life and other
insurance benefits to the Executive for a period of one
(1) year following such termination on the same terms and
conditions existing immediately prior to termination, with the
costs of such benefits (including the Company’s portion of
any premiums) paid by the Company on the Executive’s behalf
included in the Executive’s gross income. In addition to the
foregoing, each of the following events shall be considered a
termination upon a Change in Control for purposes of this
paragraph: (i) the Executive’s voluntary resignation for
any reason by the earlier of March 15 of the year following
the year in which a Change in Control occurs or one-hundred eighty
(180) days following a Change in Control, or (ii) a
material reduction in the duties, powers or authority of the
Executive as an officer or employee of the Company (a "Good Reason
Termination") within one-hundred eighty (180) days following a
Change in Control. A termination under the circumstances listed in
(ii) in the previous sentence shall be a Good Reason
Termination only if (A) the Executive notifies the Company of
the existence of the condition that otherwise constitutes a Good
Reason Termination within ninety (90) days of the initial
existence of the condition, (B) the Company fails to remedy
the condition within thirty (30) days following it’s
receipt of Executive’s notice of Good Reason Termination and
(C) the Executive terminates employment with the Company due
to the condition within two years of the initial existence of such
condition. 5.6 Definition of a
"Change of Control" . "Change of Control" shall mean the
occurrence of any of the following events:
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(i) the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended), of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act) of fifty percent
(50%) or more of the combined voting power of the then-outstanding
voting securities of the Company entitled to vote generally in the
election of directors, but excluding for the purpose of this
section, any such acquisition by (A) the Company or any of its
subsidiaries, (B) any employee benefit plan (or related trust)
or (C)&n
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