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THIS
EMPLOYMENT AGREEMENT (THE “AGREEMENT”) is
effective the 1 st day
of November, 2007, by and between ePlus, inc. a Delaware
corporation (the “Company”) and Kleyton Parkhurst
(the “Executive”).
RECITAL
The
Executive is employed as Senior Vice President, Treasurer, and
Assistant Secretary 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
covenant herein contained, the parties do hereby agree as
follows:
1. EFFECTIVE
DATE. This
agreement shall be effective November 1, 2007.
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 November 1, 2007 through and
including October 31, 2008.
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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 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; 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 crime;
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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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Exceeded
the scope or authority of his position;
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vii.
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Refused
or failed to comply with instructions of the Board; or
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viii.
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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 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
material reduction by the Company in the Executive’s base
salary as set forth herein 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 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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(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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serve
as the Senior Vice President, Treasurer and Assistant Secretary.
The Executive shall be responsible for, but not limited to, the
following areas: Mergers and Acquisitions, Credit, Marketing and
Treasury operations for the Company; |
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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 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 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 $ 250,000 (Two Hundred Fifty
Thousand Dollars).
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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 under the terms and conditions as
outlined in the FY 2008 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 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 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 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 anytime (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 FY 2008 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 FY 2008 Executive Incentive Plan, and
an
additional amount equal to the greater of (a) six
months of Executive’s base salary or (b) the balance of his
salary through the end of the Employment Term
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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 the greater of the
remaining balance of his salary to the end of the Employment
Term or an amount equal to six months 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 not longer than
six months 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 six-month 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.
iii. 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
Executive gives notice of an At-Will Termination as described
in Section 6(d), then (a) the Company will pay the
Executive an additional amount equal to six months 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
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