THIS EMPLOYMENT AGREEMENT (THE
“AGREEMENT”) is effective the 30
th day of September, 2009, by and between
e Plus inc. a Delaware corporation (the
“Company”) or collectively, with its subsidiaries, the
“Companies”) and Elaine D. Marion (the
“Executive”).
RECITAL
The Executive is employed as the Company’s
Chief Financial Officer, 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 as of the date noted
above.
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 her
duties under this Agreement, even with reasonable accommodations
consistent with ADA requirements, 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 September 30, 2009 through and including September 30,
2010.
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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 her duties to the Company and such
failure was not cured within 30 days of the Company’s
providing Executive written notice of such failure; or
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ii.
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Failed to
comply with 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 written 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, breach of the duty of
loyalty, 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; or
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v.
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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 written notice of such refusal or
failure; or
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vi.
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Any other
material breach of this Agreement by the Executive that is not
cured within 30 days of the company providing Executive written
notice of such breach.
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“Good
Cause” shall not include failures as set forth in Section
2(d) of this Section when such failure is a result of the
Executive’s illness or injury.
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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 incentive compensation;
or
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iii.
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a change in the
Executive’s principal office to a location 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.
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.
Any other
material breach of this Agreement by the Company that is not cured
within 30 days of the Executive providing the Company written
notice of such breach.
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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 during the Employment Term and
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 Chief Financial Officer. The Executive
shall be responsible for, but not limited to, the following areas:
finance, tax, insurance, budget, treasury and
accounting.
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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 her position;
and
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c.
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devote her
substantially 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. Executive may engage in appropriate civic,
charitable, or educational activities provided that such activities
do not materially 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 she 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 twenty-five
thousand($325,000.00 Dollars), which may be increased from time to
time.
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b.
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Based on her
MBOs and overall company performance the Executive shall be
eligible to be considered for an annual bonus of up to 50% of her
base salary then in effect under the terms and conditions as
outlined in the Executive Incentive Plan . The
Company shall pay any bonus earned under this section 5(b) no
earlier than the end of the fiscal year for which earned and no
later than the next September 30 th following the fiscal year in which the bonus was
earned, provided that financial filings are timely provided to the
Compensation Committee. In no event will any bonus earned under
this section 5(b) be paid later than the end of the fiscal year
after the fiscal year for which it was earned.
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c.
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The Executive
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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The Executive
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 her professional,
industry association memberships incurred by her in performing her
duties, in accordance with the Company’s expense
reimbursement policies in place from time to time. Any
reimbursements which are includible in gross income of the
Executive under this section 5(d) must meet the following
conditions. Such reimbursements: (i) must be for
expenses incurred during the term of this agreement; (ii) shall not
be subject to liquidation or exchange for any other benefit; (iii)
shall not affect eligibility for reimbursements in any other
taxable year of the Executive; and (iv) shall be made no later than
the last day of the Executive’s taxable year following the
taxable year in which the expense was incurred.
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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. In the absence of cure by the
Executive as per Section 2(d), termination by the Company for Good
Cause shall be effective on the thirty-first day after the Company
gives written notice to the Executive of failure to
perform.
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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 the Company’s
payment to the Executive for the 30 days’ written notice
period 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 paid 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 her
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 such period of paid 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 her employment for
Good Reason as defined in Section 2(e) only if the Executive
has provided the Board with written notice of her intent to
terminate her employment for Good Reason at least 10 days prior to
the date of termination 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
business 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 her employment at any time for any reason
or no reason upon 30 days’ written 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 her then current base salary and provide the Executive
her 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. Pursuant to the Executive incentive plan,
the Compensation Committee will determine the amount of such bonus,
if any, and such amount, if any, will be paid within sixty (60)
days of the termination of Executive’s employment.
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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 (attached hereto as Exhibit 1) 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 for
the fiscal year that includes the Termination Date, and an
additional amount equal to one year of the Executive’s base
salary. The payment of the amount equal to one year of
Executive’s base salary shall be made with thirty (30) days
of termination of employment. Pursuant to the Executive Incentive
Plan, the Compensation Committee will determine the amount of such
bonus, if any, and such amount, if any, will be paid within sixty
(60) days of the termination of Executive’s
employment.
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 her 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 her 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 herself and her
dependants through COBRA for a period of one year after the
Termination Date. Should the Executive or any of her
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 her under
this Section and any amounts earned by the Executive subsequent to
her termination shall not serve as an offset to the payments due
her by the Company under this Section. Any payment due under this
section 7(c)(2) shall be made in a lump sum within thirty (30) days
following the termination of employment.
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 Termination as described in Section
6(d), then (a) the Company will pay the Executive an
additional 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 her 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 herself and her dependants through COBRA for a period
of one year after the Termination Date. Should the
Executive or any of her 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 her under this Section and any amounts earned by the
Executive subsequent to her termination shall not serve
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