Exhibit 10.2
EXECUTIVE EMPLOYMENT
AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT
(this “ Agreement ”) is made as of
December 29, 2006 by and among Companion Technologies
Corporation, a South Carolina corporation (the “
Company ”) and Patrick J. Haynes, III (“
Executive ”). Capitalized terms used herein and not
otherwise defined have the meanings assigned to such terms in
Section 13.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Employment . The
Company will employ Executive, and Executive accepts employment
with the Company, upon the terms and conditions set forth in this
Agreement, for the period beginning on the date hereof and ending
as provided in Section 6 (the “ Employment Period
”).
Section 2. Positions and
Duties . During the Employment Period, Executive will serve as
a member of the Board of Directors of the Company and the Board of
Directors of Holdings (the “ Board ”) and as the
Chief Executive Officer of the Company and of Holdings and its
other Subsidiaries, provided that Executive will not be obligated
to become or remain an officer of any company (i) whose
organization documents do not provide indemnification provisions
reasonably satisfactory to Executive and (ii) which is not
covered by the directors’ and officers’ liability
policy referred to in Section 11(b) hereof. Executive will be
responsible for the overall business of the Company and its
Subsidiaries, including strategic planning, management recruiting,
strategic relationships, capital formation (under the guidance of
ABRY Partners, LLC and the Board), operations reviews and
oversight, and investor and financial community relations, and will
render such managerial, analytical, administrative, marketing,
creative and other executive services to the Company and Holdings
and its other Subsidiaries as are from time to time necessary in
connection with the management and affairs of such Persons
(including the management of the business and affairs of Holdings
and its other Subsidiaries), in each case subject to the authority
of the Board. Executive agrees to devote such of Executive’s
business time, attention and energies as are necessary for the
diligent performance of Executive’s duties hereunder.
Executive will report directly to the Board. All other employees of
the Company and its Subsidiaries will report, directly or
indirectly, to Executive. Executive will perform Executive’s
duties and responsibilities to the best of Executive’s
abilities in a diligent, trustworthy, businesslike and efficient
manner. The Company acknowledges Executive’s existing
relationship with The Thurston Group, Inc. and its Affiliates, and
agrees that Executive, subject to (i) Executive’s
agreement to devote such of Executive’s business time,
attention and energies as are necessary for the diligent
performance of Executive’s duties hereunder, and
(ii) Executives obligations under Section 8 and
Section 9, may continue to hold Executive’s positions in
such entities and continue to provide services thereto.
Section 3. Location .
Executive’s duties hereunder will be performed in the greater
metropolitan Chicago, Illinois area, subject to customary travel
obligations as will be required in the diligent performance of such
duties. The Company agrees to maintain offices for
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Executive at 875 N. Michigan Ave., Suite 3640,
Chicago, Illinois, 60661, or such other address in the greater
metropolitan Chicago area as is approved by the Board as the
principal executive offices of the Company, and to provide all
equipment, supplies and other items reasonably required for the
performance of Executive’s duties under this Agreement at
such offices.
Section 4. Salary and
Benefits .
(a) Salary . During the
Employment Period, the Company will pay Executive salary in
accordance with Exhibit A hereto (as in effect from time to time,
the “ Salary ”) as compensation for services.
The Salary will be payable in regular installments in accordance
with the general payroll practices of the Company and its
Subsidiaries, but in no event less frequently than monthly.
Executive’s Salary will be reviewed on at least an annual
basis, beginning on the one year anniversary of the date of this
Agreement (such anniversary date, each anniversary date thereafter,
and any additional review dates as described in the proviso hereto,
a “ Date of Determination ”), and shall be
adjusted in accordance with Exhibit A hereto; provided that
additional reviews shall be conducted as soon as practical
following the receipt of three full months of financial statements
of the Company subsequent to any add on acquisition to the Company
or any of its Subsidiaries. Such reviews will be conducted by the
Board or a committee designated by the Board.
(b) Benefits . During the
Employment Period, the Company will provide Executive with family
health and dental, life, long-term disability and Directors’
and Officers’ liability insurance under such plans as the
Board may establish or maintain from time to time for senior
executive officers of the Company and its Subsidiaries
(collectively, the “ Benefits ”).
(c) Vacation . Executive will
be entitled to four weeks of paid vacation each year.
(d) Reimbursement of Expenses
. During the Employment Period, the Company will reimburse
Executive for all reasonable out-of-pocket expenses incurred by
Executive in the course of performing Executive’s duties
under this Agreement which are consistent with the Company’s
policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the
Company’s requirements with respect to reporting and
documentation of such expenses.
(e) Automobile Allowance .
During the Employment Period, the Company will lease for Executive,
or reimburse Executive for the reasonable costs of leasing, an
automobile of Executive’s choice; provided that in no
event will the Company’s obligations under this
Section 4(e) exceed $1,250 per month.
(f) Professional Education .
Executive’s attendance at professional seminars will be
decided on an ad hoc basis by the Board and Executive.
Section 5. Bonus .
During the Employment Period, Executive will be eligible to receive
an annual cash bonus (the “ Bonus ”) as
determined and approved by the Board in accordance with Exhibit A
hereto. The Bonus shall not exceed the applicable bonus percentage
of Executive’s Salary set forth in Exhibit A as in effect for
the year in question and, to the extent
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payable, will be payable in accordance with the
general payroll practices of the Company and its Subsidiaries, but
in no event later than 30 days after the Date of Determination for
the year in which such Bonus relates.
Section 6. Termination of
Employment . The Employment Period will commence on the date
hereof and will continue until the fifth year anniversary of the
date hereof (the “ Original Term ”), unless
sooner terminated as follows:
(a) By the Company, For Cause (as
that term is defined below), upon written notice to Executive or in
connection with a Sale of the Company.
(b) Upon the death of
Executive.
(c) By Executive, up to 30 days
after written notice to the Company of resignation by Executive
(which time period will be in the sole discretion of the
Company).
(d) If Executive fails to perform
his duties under this Agreement on account of Disability (as
hereinafter defined), the Company may give notice to Executive to
terminate this Agreement on a date not less than 30 days thereafter
(“ Notice Period ”), and, if Executive has not
resumed full performance of Executive’s duties under this
Agreement within such Notice Period, then Executive’s
employment under this Agreement will terminate on the date provided
in the notice. As used in this Agreement, the term “
Disability ” will mean the inability of Executive to
perform Executive’s duties under this Agreement by reason of
Executive’s disability, as reasonably determined by an
independent physician selected by the Board with the approval of
Executive, such approval not to be unreasonably withheld or
delayed.
(e) By Executive, in the event the
Company is in material breach of any of its obligations hereunder
and such breach is not cured within 30 days of written notice
thereof from Executive. A material breach of the Company’s
obligations under this Agreement includes, without limitation,
(i) a material change in Executive’s reporting
structure, responsibilities or obligations under this Agreement
without Executive’s prior written consent; or
(ii) Executive’s Salary, as in effect on the Closing
Date or as the same may be increased by the Board from time to time
thereafter, is reduced, unless such reduction is agreed to by
Executive in writing; or (iii) the Company requires Executive
to relocate to a place that is not in the greater metropolitan
Chicago, Illinois area.
(f) By the Company, other than as
described in clause (a), (b) or (d) above.
For purposes of this Agreement,
“ For Cause ” will mean Executive’s
(i) conviction of, or plea of guilty or no contest or similar
plea with respect to, either (A) a felony or (B) any
crime that causes Holdings and its Subsidiaries, taken as a whole,
a substantial and material financial detriment;
(ii) commission of an act involving fraud or embezzlement with
respect to Holdings or any of its Subsidiaries;
(iii) substantial and repeated failure (except where due to
illness, Disability or incapacity) to perform Executive’s
duties hereunder, which failure is not cured within 30 days after
written notice thereof to Executive from the Company which notice
will specifically set forth the nature of such failure and the
actions required to correct the same; (iv) commission of any
willful or intentional act of Executive that has the intended
effect of
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injuring the reputation or business of Holdings
or its Affiliates in any material respect; (v) continued or
repeated absence from the Company, unless such absence is
(A) in compliance with Company policy or approved or excused
by the Board or (B) is the result of Executive’s
illness, Disability or incapacity; or (vi) use of illegal
drugs by Executive or repeated public drunkenness; provided
, however , that the Company’s failure to achieve
certain results will not be deemed to constitute “For
Cause” so long as Executive uses Executive’s reasonable
best efforts to perform his duties under this Agreement.
In the event the Employment Period
terminates by reason of Executive’s resignation, death,
Disability or other incapacity or the Company terminates the
Employment Period For Cause or in connection with a Sale of the
Company, Executive will not be entitled to receive his Salary or
any fringe benefits or Bonus for periods after the termination of
the Employment Period. In the event the Employment Period is
terminated by the Company pursuant to Section 6(f) or by
Executive pursuant to Section 6(e), then so long as Executive
continues to comply with Sections 8 and 9, Executive will be
entitled to receive (i) severance payments in an aggregate
amount equal to one year’s Salary based on the Salary in
effect at the time the Employment Period is terminated and
(ii) Benefits at the same level as they are provided from time
to time to the Company’s senior management employees, for a
period equal to one year from the date of such termination. Any
such severance payments paid to Executive by the Company will be
paid in equal monthly installments; provided that Executive
will be required to sign a release of all past, present and future
claims against ABRY, its Affiliates and the Related Companies as a
condition to receiving such payments and Benefits.
Section 7. Resignation as
Officer or Director . Upon the termination of the Employment
Period, Executive will be deemed to have resigned from each
position (if any) that Executive then holds as an officer or
director of Holdings or any of its Subsidiaries (including his
membership on the Board and the board of directors of any
Subsidiary of Holdings), and Executive will take any action that
Holdings or any of its Subsidiaries may request in order to confirm
or evidence such resignation.
Section 8. Confidential
Information . Executive acknowledges that the information,
observations and data that have been or may be obtained by
Executive during Executive’s employment relationship with, or
through Executive’s involvement as a member or stockholder
of, Holdings or any Subsidiary or predecessor thereof (each of
Holdings, any Subsidiary or Affiliate or any such affiliate
predecessor being a “ Related Company ”), prior
to and after the date of this Agreement concerning the business or
affairs of the Related Companies (collectively, “
Confidential Information ”) are and will be the
property of the Related Companies. Therefore, Executive agrees that
Executive will not disclose to any unauthorized Person or use for
the account of Executive or any other Person any Confidential
Information without the prior written consent of Holdings (by the
action of the Board), unless and to the extent that s
