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 Anthony L.
Grande, 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.
WHEREAS ,
the Executive has been promoted by the Company to the position of
Executive Vice President and Chief Development 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 Executive Vice
President and Chief Development 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 Executive Vice President and Chief Development 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.
4.1 Base
Salary . The Company shall pay the Executive an annual salary
(“Base Salary”) of $270,000, 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
benef
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