This EMPLOYMENT
AGREEMENT (the “Agreement”), dated as of this 9th day
of September, 2009 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 Brian D. Collins, a resident of Spring
Hill, Tennessee (the “Executive”).
WHEREAS ,
the Executive has been promoted by the Company to the position of
Executive Vice President and Chief Human Resources Officer,
effective September 14, 2009 (the “Effective
Date”); 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 . From and after the Effective Date, the
Executive shall serve as Executive Vice President, Human Resources
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
Human Resources 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 Effective Date
and shall terminate on December 31, 2009 (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 Two Hundred Forty Eight Thousand
Three Hundred and Ten dollars ($ 248,310.00) per annum, 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 2010 when
annual compensation for 2010 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 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,
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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 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.
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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.
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5.6 Definition
of a “Change of Control” . “Change of
Control” shall mean the occurrence of any of the following
events:
(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
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