|
Exhibit
10.1
MARK L.
WETZEL
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this “ Agreement ”) is dated as of
June 13, 2008, by and between DuPont Fabros Technology, Inc.,
a Maryland corporation (the “ Company ”), and
Mark L. Wetzel (the “ Executive ”).
WHEREAS, the Company desires
to employ the Executive as its Executive Vice President, Chief
Financial Officer and Treasurer and the Executive desires to accept
such employment, on the terms set forth below.
Accordingly, the parties
hereto agree as follows:
1. Term . The Company
hereby employs the Executive, and the Executive hereby accepts such
employment for an initial term commencing as of the later of
(a) date hereof and (b) the date that the Executive
commences employment with the Company, and ending on the third
anniversary of this Agreement, unless sooner terminated in
accordance with the provisions of Section 4 or Section 5
(the period during which the Executive is employed hereunder being
hereinafter referred to as the “ Term ”). If
either the Company or Executive does not wish to renew this
Agreement when it expires at the end of the initial or any renewal
term hereof as hereinafter provided, or if either the Company or
Executive wishes to renew this Agreement on different terms than
those contained herein, it or he shall give written notice in
accordance with Section 10.4 below of such intent to the other
party at least sixty (60) days prior to the expiration of the
Term. In the absence of such notice, this Agreement shall be
renewed on the same terms and conditions contained herein for a
term of one (1) year from the date of expiration. The parties
expressly agree that designation of a term and renewal provisions
in this Agreement does not in any way limit the right of the
parties to terminate this Agreement at any time as hereinafter
provided. Reference herein to the Term shall refer both to the
initial term and any renewal term as the context
requires.
2. Duties .
2.1 Services as an
Employee . The Executive, in his capacity as Executive Vice
President, Chief Financial Officer and Treasurer, shall faithfully
perform for the Company the duties of said office and shall perform
such other duties of an executive, managerial or administrative
nature, within the scope of authority commensurate with a chief
financial officer of a public company, as shall be specified and
designated from time to time by the Company’s President and
Chief Executive Officer (including the performance of services for,
and serving on the Board of Directors of, any subsidiary or
affiliate of the Company without any additional compensation). The
Executive shall report to the Chief Executive Officer. The
Executive shall devote substantially all of the Executive’s
business time and effort to the performance of the
Executive’s duties hereunder. In no event shall the prior
sentence prohibit the Executive from
(i) performing charitable
activities, (ii) delivering lectures at educational
institutions or professional or corporate associations, or
(iii) any other activities approved in advance by the
President and Chief Executive Officer, so long as such activities
do not contravene the prior sentence. Without the prior approval of
the Company’s Board of Directors (the “ Board
”), Executive shall not serve in any executive capacity or as
a member of the governing board of any private or public for-profit
company. Executive’s principal place of employment shall be
at the principal executive offices of the Company in Washington,
D.C. or in such other location in the Washington, D.C. metropolitan
area to which the Company may from time to time relocate its
principal executive offices.
2.2 Additional
Agreements . Simultaneously with the execution of this
Agreement, the Company and the Executive shall enter into an
Indemnification Agreement in substantially the form attached as
Exhibit A (the “ Indemnification Agreement
”).
3. Compensation and
Benefits .
3.1 Salary . The
Company shall pay the Executive during the Term an annual salary at
the rate of Two Hundred Seventy-Five Thousand Dollars ($275,000)
per annum (the “ Annual Salary ”), payable at
times and in the manner consistent with the Company’s general
policies for its senior executives and subject to regular
deductions and withholdings as required by law. The Annual Salary
may be increased annually by an amount as may be approved by the
Board or the Compensation Committee of the Board (the “
Compensation Committee ”), and, upon such increase,
the increased amount shall thereafter be deemed to be the Annual
Salary for purposes of this Agreement. Under no circumstances shall
the Annual Salary be reduced below the Annual Salary paid to the
Executive in the immediately preceding twelve (12) month
period without the Executive’s consent, other than, beginning
on the 18 th month anniversary of the commencement of the Term, for
across-the-board reductions generally applicable to the
Company’s senior executives.
3.2 Incentive
Compensation . The Executive will be eligible to participate in
any short-term and long-term incentive compensation plans, annual
bonus plans and such other management incentive programs or
arrangements of the Company approved by the Board or Compensation
Committee that are generally available to the Company’s
senior executives. Any incentive compensation shall be subject to,
and paid in accordance with, the terms and conditions of the
applicable plans, programs and arrangements.
(i) Short-Term Incentive
Compensation . During the Term, the Executive shall be entitled
to participate in the Company’s short-term incentive
compensation plan (a “ STIP ”), with such
opportunities as may be determined by the Compensation Committee in
its sole discretion (each, a “ Target Bonus ”);
provided , however , that for the bonus year ending
December 31, 2008, a Target Bonus opportunity of 60% of the
Executive’s Annual Salary, with a maximum opportunity of
120%, will be pro rated for the period from the Effective Date to
December 31, 2008, and thereafter during the Term the
Executive will participate at an annual Target Bonus opportunity of
60% of his Annual Salary (as may be increased but not decreased,
except for across-the-board reductions generally applicable to the
Company’s senior executives from time to time).
(ii) Long-Term Incentive
Compensation . During the Term, the Executive shall
2
be entitled to participate in
the Company’s long-term incentive compensation plan with such
opportunities, if any, as may be determined by the Compensation
Committee. During the Term, equity awards granted by the
Compensation Committee would be subject to the terms of the
respective award agreements evidencing such grants, as such terms
are determined by the Compensation Committee, and the applicable
plan or program.
(iii) Payment .
Payments under any of the Company’s incentive and other
compensation plans, if earned, shall be paid when incentive
compensation is paid to the Company’s senior executives in
accordance with the terms of the applicable plans, programs or
arrangements.
3.3 Equity-Based
Awards . Effective on the date that the Executive begins
employment, the Company shall issue to the Executive, and the
Executive agrees to accept that number of shares of Company common
stock equal to Five Hundred Thousand Dollars ($500,000) divided by
the closing price of a share of common stock of the Company on the
New York Stock Exchange on the date that the Executive commences
employment with the Company. Such shares of common stock shall be
subject to forfeiture and shall vest in three equal installments on
each of the first three anniversaries of the date that the
Executive commences employment with the Company.
3.4 Benefits – In
General . The Executive shall be permitted during the Term to
participate in any group life, hospitalization or disability
insurance plans, medical, dental, vision and other health programs,
401(k) retirement savings plan and similar benefits that may be
available to other senior executives of the Company generally, on
the same terms as may be applicable to such other executives, in
each case to the extent that the Executive is eligible under the
terms of such plans or programs.
3.5 Vacation . During
the Term, the Executive shall be entitled to (i) vacation of
twenty (20) working days per year, (ii) sick and personal
leave available to other senior executives of the Company
generally, and (iii) holidays recognized by the Company. The
Executive’s entitlement to vacation and sick and personal
leave will be subject to the Company’s accrual and carry-over
rules applicable to senior executives of the Company
generally.
3.6 Expenses . The
Company shall pay or reimburse the Executive for all ordinary and
reasonable out-of-pocket expenses actually incurred (and, in the
case of reimbursement, paid) by the Executive during the Term in
the performance of the Executive’s services under this
Agreement, provided that the Executive submits such expenses for
payment or reimbursement in accordance with the policies applicable
to senior executives of the Company generally.
3.7 Relocation and Other
Expenses .
| |
(i) |
Executive shall be required to relocate to the greater
Washington, D.C. metropolitan area within a period of time to be
agreed upon by the Company’s Chief Executive Officer and the
Executive. In connection with such relocation, Executive shall be
eligible to participate in the Company’s Relocation Program
and eligible for reimbursement of expenses of up to $150,000,
exclusive of any “gross up” amounts paid to applicable
tax authorities. |
3
| |
(ii) |
In addition, the Company shall reimburse Executive, up to an
amount equal to $25,000, for reasonable out-of-pocket expenditures
for interim living and travel arrangements, incurred during the
period ending on the earlier of (a) the six-month anniversary
following the commencement of Executive’s employment with the
Company, and (b) the date that Executive relocates to the
greater Washington, D.C. metropolitan area. |
4. Termination Due to
Death or Disability .
4.1 Death . In the
event of Executive’s death, all obligations of the Company
and Executive under Sections 1 through 3 will immediately cease
except for obligations which expressly continue after death, and
the Company will pay Executive’s beneficiary or estate, and
Executive’s beneficiary or estate will be entitled to
receive, the following:
| |
(i) |
Executive’s Compensation Accrued at Termination (as
defined in section 6.3); |
| |
(ii) |
In lieu of any cash bonus payment under Section 3.2 for
the year in which Executive dies, and without duplication with
respect to Compensation Accrued at Termination to which Executive
is entitled, a Partial Year Bonus (as defined in
Section 6.6); |
| |
(iii) |
The vesting and, as applicable, exercisability of stock
options, Restricted Stock Units (“ RSUs ”),
common stock subject to forfeiture and other equity awards held by
Executive at termination of employment, and all other terms of such
awards, shall be governed by the plans, programs, agreements and
other documents pursuant to which such awards were granted
and; |
| |
(iv) |
All other rights under any other compensatory or benefit plan
shall be governed by the terms and conditions of such plan. In
addition, at the Company’s expense, Executive’s spouse
and dependent children shall be entitled to continuation of health
insurance coverage (i.e., medical, dental and vision) for a period
of one (1) year. |
4.2 Disability . The
Company may terminate the employment of Executive hereunder due to
the Disability (as defined in Section 6.4) of Executive. Upon
termination of employment, all obligations of the Company and
Executive under Sections 1 through 3 will immediately cease and the
Company will pay Executive, and Executive will be entitled to
receive, the following:
| |
(i) |
Executive’s Compensation Accrued at
Termination; |
| |
(ii) |
In lieu of any cash bonus payment under Section 3.2 for
the year in which Executive becomes disabled, and without
duplication with respect to Compensation Accrued at Termination to
which Executive is entitled, a Partial Year Bonus; |
| |
(iii) |
The vesting
and, as applicable, exercisability of stock options, RSUs, common
stock subject to forfeiture and other equity awards held by
Executive at
|
4
| |
termination of employment
and all other terms of such awards shall be governed by the plans,
programs, agreements and other documents pursuant to which such
awards were granted;
|
| |
(iv) |
Disability benefits shall be payable in accordance with the
Company’s plans, programs and policies; and |
| |
(v) |
All other rights under any other compensatory or benefit plan
shall be governed by the terms and conditions of such plan. In
addition, at the Company’s expense, Executive and his spouse
and dependent children shall be entitled to continuation of health
insurance coverage (i.e., medical, dental and vision) for a period
of one (1) year. Notwithstanding anything to the contrary, any
benefits under this Section 4.2 shall be offset by any
disability benefits received by the Executive. |
4.3 Other Terms of Payment
Following Death or Disability . Nothing in this Section 4
shall limit the benefits payable or provided in the event
Executive’s employment terminates due to death or Disability
under the terms of plans or programs of the Company more favorable
to Executive (or his beneficiaries) than the benefits payable or
provided under this Section 4 (except in the case of any cash
bonus payment under Section 3.2 for the year of termination in
lieu of which a Partial Year Bonus is paid hereunder), including
plans and programs adopted after the date of this Agreement.
Subject to Section 5.6, amounts payable under this
Section 4 will be paid as promptly as practicable following
termination with Executive’s employment.
4.4 Conflicts . In the
event of any conflict between the terms of this Section 4 and
the terms of any then-applicable plans or programs of the Company,
the terms of this Agreement shall control.
5. Termination of
Employment For Reasons Other Than Death or Disability
.
5.1 Termination by the
Company for Cause . The Company may terminate the employment of
Executive hereunder for Cause (as defined in Section 6.1) at
any time. At the time Executive’s employment is terminated
for Cause, all obligations of the Company and Executive under
Sections 1 through 3 will immediately cease, and the Company will
pay Executive, and Executive will be entitled to receive, the
following:
| |
(i) |
Executive’s Compensation Accrued at
Termination; |
| |
(ii) |
The vesting and, as applicable, exercisability of stock
options, RSUs, common stock subject to forfeiture and other equity
awards held by Executive at termination of employment and all other
terms of such awards shall be governed by the plans, programs,
agreements and other documents pursuant to which such awards were
granted; and |
| |
(iii) |
All other rights under any other compensatory or benefit plan
shall be governed by the terms and conditions of such
plan. |
5.2 Termination by
Executive Other Than For Good Reason . Executive may
5
terminate his employment hereunder
voluntarily for reasons other than Good Reason (as defined in
Section 6.5) at any time upon at least 30 days’ written
notice to the Company. At the time Executive’s employment is
terminated by Executive other than for Good Reason, all obligations
of the Company and Executive under Sections 1 through 3 will
immediately cease, and the Company will pay Executive, and
Executive will be entitled to, the same compensation and rights
specified in Section 5.1.
5.3 Termination by the
Company Without Cause . The Company may terminate the
employment of Executive hereunder without Cause upon at least 30
days’ written notice to Executive. At the time
Executive’s employment is terminated by the Company (i.e., at
the expiration of such notice period), all remaining obligations of
the Company and Executive under Sections 1 through 3 will
immediately cease (except as expressly provided below), and the
Company will pay Executive, and Executive will be entitled to
receive, the following:
| |
(i) |
Executive’s Compensation Accrued at
Termination; |
| |
(ii) |
A single severance payment in cash in an aggregate amount equal
to two times the sum of (i) the Annual Salary plus
(ii) the average of the three (3) most recent payments
under the Company’s STIP, if any, or amounts approved for
payment under the Company’s STIP to Executive (or, if fewer
than three STIP payments have been paid or approved for payment to
Executive, the highest payment, if any, paid or approved for
payment to Executive during the Term); |
| |
(iii) |
In lieu of any cash bonus payment under Section 3.2 for
the year in which Executive’s employment terminates, and
without duplication with respect to Compensation Accrued at
Termination to which Executive is entitled, a Partial Year
Bonus; |
| |
(iv) |
All stock options, common stock subject to forfeiture, RSUs and
other equity awards held by Executive at termination of employment
shall become fully vested and exercisable or free from repurchase
restrictions or other risk of forfeiture, as applicable, and all
other terms of such awards shall be governed by the plans,
programs, agreements and other documents pursuant to which such
equity awards were granted; |
| |
(v) |
Any performance objectives upon which the earning of
performance-based restricted stock, RSUs, other equity awards and
other long-term incentive awards (including cash awards) is
conditioned shall be deemed to have been met at the target level at
the date of termination, and paid on a pro-rata basis based on the
time completed during the performance period; and |
| |
(vi) |
All other
rights under any other compensatory or benefit plan shall be
governed by such plan. In addition, at Company’s expense,
Executive and his spouse and dependent children shall be entitled
to continuation of health insurance coverage (i.e., medical, dental
and vision) under the Company’s group health plan(s) in which
the Executive was participating on the date of termination or if
such plan(s)
|
6
| |
have been terminated, in
the plan(s) in which senior executives of the Company participate
for a period of twelve (12) months after the date
Executive’s employment terminates.
|
Payments and benefits under
this Section 5.3 are subject to Section 5.6.
5.4 Termination by
Executive for Good Reason . Executive may terminate his
employment hereunder for Good Reason upon 30 days’ written
notice to the Company which notice must be given within 90 days of
the Executive’s actual knowledge of the occurrence of the
condition that is the basis for such Good Reason; provided,
however, that if the basis for such Good Reason is correctible and
the Company has corrected the basis for such Good Reason within 30
days after receipt of such notice, Executive may not then terminate
his employment for Good Reason with respect to the matters
addressed in the written notice. At the time Executive’s
employment is terminated by Executive for Good Reason (i.e., at the
expiration of such notice period), all obligations of the Company
and Executive under Sections 1 through 3 will immediately cease
(except as expressly provided below), and the Company will pay
Executive, and Executive will be entitled to receive, the same
compensation and rights specified in Section 5.3(i) –
(vi) and subject to Section 5.6.
If any payment or benefit under this
Section 5.4 is based on Annual Salary or other level of
compensation or benefits at the time of Executive’s
termination and if a reduction in such Annual Salary or other level
of compensation or benefit was the basis for Executive’s
termination for Good Reason, then the Annual Salary or other level
of compensation in effect before such reduction shall be used to
calculate payments or benefits under this
Section 5.4.
5.5 Other Terms Relating
to Certain Terminations of Employment . In the event
Executive’s employment terminates for any reason set forth in
Section 5.1 through 5.4, Executive will be entitled to the
benefit of any terms of plans or agreements applicable to Executive
which are more favorable than those specified in this
Section 5 (except without duplication of payments or benefits,
including in the case of any cash bonus payment under
Section 3.2 for the year of termination in lieu of which a
Partial Year Bonus is paid hereunder). Except as otherwise provided
under Section 5.6, amounts payable under this Section 5
following Executive’s termination of employment, other than
those expressly payable on a deferred or installment basis, will be
paid as promptly as practicable after such a termination of
employment. All expenses reimbursable pursuant to Section 3.6
shall be reimbursed by the end of the calendar year after the
calendar year in which the expense was incurred.
5.6 Limitations Under Code
Section 409A . Anything in this Agreement to the contrary
notwithstanding, if (A) on the date of termination of
Executive’s employment with the Company or a subsidiary, any
of the Company’s stock is publicly traded on an established
securities market or otherwise (within the meaning of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as
amended (the “ Code ”)), (B) Executive is
determined to be a “specified employee” within the
meaning of Section 409A(a)(2)(B) of the Code, (C) the
payments exceed the amounts permitted to be paid pursuant to
Treasury Regulations section 1.409A-1(b)(9)(iii) and (D) such
delay is required to avoid the imposition of the tax set forth in
Section 409A(a)(1) of the Code as a result of such
termination, the Executive would receive any payment that,
absent
7
the application of this
Section 5.6, would be subject to interest and additional tax
imposed pursuant to Section 409A(a) of the Code as a result of
the application of Section 409A(2)(B)(i) of the Code (such
additional tax, together with any such interest and penalties, are
hereinafter referred to as the “ Additional Tax
”), then no such payment shall be payable prior to the date
that is the earliest of (1) 6 months after the
Executive’s termination date, (2) the Executive’s
death or (3) such other date as will cause such payment not to
be subject to such interest and additional tax (with a catch-up
payment equal to the sum of all amounts that have been delayed to
be made as of the date of the initial payment plus interest equal
to the rate provided in Section 1274(b)(2)(B) of the
Code).
It is the intention of the
parties that payments or benefits payable under this Agreement not
be subject to Additional Tax. To the extent such potential payments
or benefits could become subject to such Section, the parties shall
cooperate to amend this Agreement with the goal of giving the
Executive the economic benefits described herein in a manner that
does not result in such tax being imposed.
6. Definitions Relating to
Termination Events .
6.1 “Cause”. For
purposes of this Agreement, “ Cause ” shall mean
Executive’s:
| |
(i) |
conviction of a felony (other than a violation of traffic laws)
or a crime involving moral turpitude; |
| |
(ii) |
willful commission of any act of theft, fraud (including with
respect to the Company’s accounting records and financial
statements), embezzlement or misappropriation against the Company
or one of its subsidiaries or affiliates; |
| |
(iii) |
willful and continued failure to substantially perform
Executive’s duties hereunder (other than such failure
resulting from Executive’s incapacity due to physical or
mental illness), which failure is not remedied within 30 calendar
days after written demand for substantial performance is delivered
by the Company which specifically identifies the manner in which
the Company believes that Executive has not substantially performed
Executive’s duties; or |
| |
(iv) |
violation of the Company’s Code of Business Conduct and
Ethics. |
No act, or failure to act, on the part
of Executive shall be deemed “willful” unless done, or
omitted to be done, by Executive not in good faith and without
reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to Executive a copy of the
resolution duly adopted by the Board finding that, in the good
faith opinion of the Board, Executive was found to have engaged in
the conduct set forth above.
6.2 “Change in
Control”. For purposes of this Agreement, a “ Change
in Control ” means the following:
| |
i. |
A transaction or series of transactions whereby any
“person” or related “group” of
“persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”)) (other than the Company, any
of its subsidiaries, an employee benefit plan maintained by the
Company or any of its subsidiaries or a “person” that,
prior to such transaction, directly or indirectly controls, is
controlled by, or is under common control with, the Company)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of the
Company and immediately after such acquisition possesses more than
50% of the total combined voting power of the Company’s
securities outstanding immediately after such acquisition;
or |
8
| |
ii. |
During any period of two consecutive years, individuals who, at
the beginning of such period, constitute the Board together with
any new director(s) (other than a director designated by a person
who shall have entered into an agreement with the Company to effect
a transaction described in Section 6.2(i) hereof or
Section 6.2(iii) hereof) whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the
two-year period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof; or |
| |
iii. |
The consummation by the Company (whether directly involving the
Company or indirectly involving the Company through one or more
intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other
disposition of all or substantially all of the Company’s
assets in any single transaction or series of related transactions
or (z) the acquisition of assets or stock of another entity,
in each case other than a transaction: |
| |
(A) |
Which results in the Company’s voting securities
outstanding immediately before the transaction continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the Company or the person that, as a
result of the transaction, controls, directly or indirectly, the
Company or owns, directly or indirectly, all or substantially all
of the Company’s assets or otherwise succeeds to the business
of the Company (the Company or such person, the “
Successor Entity ”)) directly or indirectly, at least
a majority of the combined voting power of the Successor
Entity’s outstanding voting securities immediately after the
transaction, and |
| |
(B) |
After which
no person or group (as such terms are used in Sections 13(d) and
14(d)(2) of the Exchange Act) beneficially owns (within
|
9
| |
the meaning of Rule 13d-3
under the Exchange Act) voting securities representing 50% or more
of the combined voting power of the Successor Entity; provided,
however, that no person or group shall be treated for purposes of
this Section 6.2(iii)(B) as beneficially owning 50% or more of
combined voting power of the Successor Entity solely as a result of
the voting power held in the Company prior to the consummation of
the transaction; or
|
| |
iv. |
The Company’s stockholders approve a liquidation or
dissolution of the Company and all material contingencies to such
liquidation or dissolution have been satisfied or
waived. |
6.3 “Compensation
Accrued at Termination”. For purposes of this Agreement,
“ Compensation Accrued at Termination ” means
the following:
| |
(i) |
The accrued and unpaid portion of the Annual Salary at the rate
payable, in accordance with Section 3.1 hereof, at the date of
Executive’s termination of employment, through such date of
termination, payable in accordance with the Company’s regular
pay schedule; |
| |
(ii) |
Except as otherwise provided in this Agreement, all earned and
unpaid and/or vested, nonforfeitable amounts owing or accrued at
the date of Executive’s termination of employment under any
compensation and benefit plans, programs, and arrangements set
forth or referred to in Sections 3.2, 3.3 and 3.4 hereof in which
Executive theretofore participated, payable in accordance with the
terms and conditions of the plans, programs, and arrangements (and
agreements and documents thereunder) pursuant to which such
compensation and benefits were granted or accrued; |
| |
(iii) |
Reasonable business expenses and disbursements incurred by
Executive prior to Executive’s termination of employment, to
be reimbursed to Executive, as authorized under Section 3.6,
in accordance the Company’s reimbursement policies as in
effect at the date of such termination; and |
| |
(iv) |
To the extent consistent with the Company’s policies for
executives generally, compensation for vacation time accrued but
unused at the date of the Executive’s termination of
employment. |
6.4 “Disability”.
For purposes of this Agreement, “ Disability ”
means the Executive is unable due to a physical or mental condition
to perform the essential functions of his position with or without
reasonable accommodation for six (6) months in the aggregate
during any twelve (12) month period or based on the written
certification by two licensed physicians of the likely continuation
of such condition for such period, one selected by the Company or
its insurance carrier and the other selected by the Executive or
his legal representative. This definition shall be interpreted and
applied consistent with the Americans with Disabilities Act, the
Family and Medical Leave Act, Section 409A of the Code and
other applicable law.
10
6.5 “Good
Reason”. For purposes of this Agreement, “ Good
Reason ” shall mean, without Executive’s express
written consent, the occurrence of any of the following
circumstances unless, if correctable, such circumstances are fully
corrected within 30 days of the notice of termination given in
respect thereof:
| |
(i) |
The assignment to Executive of duties materially inconsistent
with Executive’s position and status hereunder, or an
alteration, materially adverse to Executive, in the nature of
Executive’s duties, responsibilities or authorities,
Executive’s positions or the conditions of Executive’s
employment from those specified in Section 2 or otherwise
hereunder (other than inadvertent actions which are promptly
remedied), including, without limitation, the relocation of
Executive’s place of employment further than 50 miles from
the Company’s current headquarters location or the assignment
of Executive to any place of employment other than the
Company’s headquarters; except the foregoing shall not
constitute Good Reason if occurring in connection with the
termination of Executive’s employment for Cause, Disability,
as a result of Executive’s death, or as a result of action by
or with the consent of Executive; |
| |
(ii) |
a material reduction by the Company in Executive’s Annual
Salary, other than for across-the-board reductions generally
applicable to the Company’s senior executives; provided that
any reduction of five percent (5%) or less shall not be deemed
material; |
| |
(iii) |
the failure of the Company to obtain a written agreement from
any successor to the Company to fully assume the Company’s
obligations and to perform under this Agreement; or |
| |
(iv) |
any other failure by the Company to perform any material
obligation under, or breach by the Company of any material
provision of, this Agreement. |
6.6 “Partial Year
Bonus”. For purposes of this Agreement, a “ Partial
Year Bonus ” is an amount equal to the Executive’s
Target Bonus, multiplied by a fraction the numerator of which is
the number of days Executive was employed in the year of
termination (disregarding any period of Disability during that
year) and the denominator of which is the total number of days in
the year of termination.
7. Excise Tax-Related
Provisions . In the event Executive becomes entitled to any
amounts or benefits payable in connection with a Change in Control
or other change in control (whether or not such amounts are payable
pursuant to this Agreement) (the “ Severance Payments
”), if any of such Severance Payments are subject to the tax
(the “ Excise Tax ”) imposed by
Section 4999 of the Code (or any similar federal, state or
local tax that may hereafter be imposed), the Company shall pay to
Executive at the time specified in Section 7(iii) hereof an
additional amount (the “ Gross-Up Payment ”)
such that the net amount retained by Executive, after deduction of
any Excise Tax on the Total Payments (as hereinafter defined) and
any federal, state and local income tax and Excise Tax upon the
payment provided for by this Section 7, shall
11
be equal to the Total Payments;
provided, however that in the event the aggregate value of the
Total Payments exceeds three times the Executive’s
“base amount,” as defined in Section 280G(b)(3) of
the Code, (the “Parachute Threshold”) by an amount
equal to less than ten percent (10%) of the Parachute
Threshold, one or more of the Total Payments shall be reduced to an
aggregate amount that is two hundred ninety-nine percent
(299%) of the Executive’s “base amount.”
Unless the Executive shall have given prior written notice
specifying a different order to the Company to effectuate the
foregoing, the Company shall reduce or eliminate the Total Payments
by first reducing or eliminating the portion of the Total Payments
which are not payable in cash and then by reducing or eliminating
cash payments, in each case in reverse order beginning with
payments or benefits which are to be paid the farthest in time from
the Change in Control. Any notice given by the Executive pursuant
to the preceding sentence shall take precedence over the provisions
of any other plan, arrangement or agreement governing the
Executive’s rights and entitlements to any benefits or
compensation. For the avoidance of doubt, in no event shall the
Company be required to pay to Executive any amount under this
Section 7 with respect to any taxes or interest that may arise
as a result of Section 409A of the Code.
| |
(i) |
For purposes of determining whether any of the Severance
Payments will be subject to the Excise Tax and the amount of such
Excise Tax: |
| |
(A) |
any other payments or benefits received or to be received by
Executive in connection with a Change in Control or
Executive’s termination of employment (whether pursuant to
the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a
Change in Control or any person affiliated with the Company or such
person) (which, together with the Severance Payments, constitute
the “ Total Payments ”) shall be treated as
“parachute payments” within the meaning of
Section 280G(b)(2) of the Code, and all “excess
parachute payments” within the meaning of
Section 280G(b)(1) of the Code shall be treated as subject to
the Excise Tax, unless in the opinion of nationally-recognized tax
counsel, public accounting firm or compensation consultant the
selection of which was approved under Section 7(iv) such other
payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject
to the Excise Tax; |
| |
(B) |
the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of
(x) the total amount of the Total Payments and (y) the
amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying
Section 7(i)(A) hereof); and |
| |
(C) |
the value of any non-cash benefits or any deferred payments or
benefit shall be determined by a nationally-recognized tax counsel,
public accounting firm or compensation consultant the selection of
which was approved under Section 7(iv) in accordance with the
principles of Sections 280G(d)(3) and (4) of the
Code. |
12
| |
(ii) |
For purposes of determining the amount of the Gross-Up Payment,
Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and
local income taxes at the Executive’s marginal rate of
taxation in the state and locality of Executive’s residence
on the date of termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state
and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder
at the time of termination of Executive’s employment,
Executive shall repay to the Company within ten days after the time
that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such
reduction (plus the portion of the Gross-Up Payment attributable to
the Excise Tax and federal and state and local income tax imposed
on the Gross-Up Payment being repaid by Executive if such repayment
results in a reduction in Excise Tax and/or federal and state and
local income tax deduction) plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder at the time of the termination
of Executive’s employment (including by reason of any payment
the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional
gross-up payment in respect of such excess within ten days after
the time that the amount of such excess is finally
determined. |
| |
(iii) |
The payments provided for in this Section 7 shall be made
not later than the thirtieth day following the date of
Executive’s termination of employment; provided, however,
that if the amount of such payments cannot be finally determined on
or before such day, the Company shall pay to Executive on such day
an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the sixtieth
day after the date of Executive’s termination of employment.
In the event that the amount of the estimated payments exceeds the
amount subsequently determined to have been due, the Executive
shall repay such excess to the Company within fifteen
(15) days after demand by the Company (together with interest
at the rate provided in Section 1274(b)(2)(B) of the
Code). |
| |
(iv) |
All determinations under this Section 7 shall be made at
the expense of the Company by a nationally recognized tax counsel,
public accounting firm or compensation consultant selected by the
Company and subject to the approval of Executive, which approval
shall not be unreasonably withheld. Such determinations shall be
binding upon Executive and the Company. |
13
8. Non-Competition and
Non-Disclosure; Executive Cooperation; Non-Disparagement
.
8.1 Noncompetition
Agreement . Simultaneously with the execution of this
Agreement, Executive and the Company shall enter into a
Non-Competition, Non-Solicitation and Confidentiality Agreement in
substantially the form attached as Exhibit B (the
“ Non-Competition Agreement ”).
8.2 Ownership of Work
. Executive will promptly disclose in writing to the Company all
inventions, discoveries, developments, improvements and innovations
(collectively referred to as “ Inventions ”)
that Executive has conceived or made during the Term; provided,
however, that in this context “Inventions” are limited
to those which (i) relate in any manner to the existing or
contemplated business activities of the Company and its affiliates;
(ii) are suggested by or result from Executive’s work at
the Company; or (iii) result from the use of the time,
materials or facilities of the Company and its affiliates. All
Inventions will be the Company’s property rather than
Executive’s. Should the Company request it, Executive agrees
to sign any document that the Company may reasonably require to
establish ownership in any Invention.
8.3 Cooperation With
Regard to Litigation . Executive agrees to cooperate with the
Company, during the Term and thereafter (including following
Executive’s termination of employment for any reason), by
making himself available to testify on behalf of the Company or any
subsidiary or affiliate of the Company, in any action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, and to assist the Company, or any subsidiary or
affiliate of the Company, in any such action, suit, or proceeding,
by providing information and meeting and consulting with the Board
or its representatives or counsel, or representatives or counsel to
the Company, or any subsidiary or affiliate of the Company, as may
be reasonably requested and after taking into account
Executive’s post-termination responsibilities and
obligations. The Company agrees to reimburse Executive, on an
after-tax basis, for all reasonable expenses actually incurred in
connection with his provision of testimony or assistance and to pay
a mutually agreed hourly fee to Executive for any assistance
provided after termination of Executive’s
employment.
8.4 Non-Disparagement
. Executive shall not, at any time during the Term and thereafter
make statements or representations, or otherwise communicate,
directly or indirectly, in writing, orally, or otherwise, or take
any action which may, directly or indirectly, disparage or be
damaging to the Company, its subsidiaries or affiliates or their
respective officers, directors, employees, advisors, businesses or
reputations. The members of the Board, the executive officers of
the Company and any personnel who are generally responsible for
communications with investors and the public (including, without
limitation, the Company’s public relations and investor
relations personnel) shall not, at any time during the Term and
thereafter, make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally or
otherwise, or take any action which may, directly or indirectly,
disparage or be damaging to Executive or his reputation. The
Company shall be liable for any such statement, representation,
communication or action by any such member of the Board, executive
officer or personnel. Notwithstanding the foregoing, nothing in
this Agreement shall preclude Executive or such members of the
Board, executive officers or personnel from making truthful
statements that are required by applicable law, regulation or legal
process, including truthful statements in connection with an
action, suit or other proceeding to enforce Executive’s or
the Company’s respective rights under this
Agreement.
14
8.5 Release of Employment
Claims . Executive agrees, as a condition to receipt of any
termination payments and benefits provided for in Sections 4 and 5
herein (other than Compensation Accrued at Termination) (the
“ Termination Benefits ”), that he will execute
a general release in substantially the form attached hereto as
Exhibit C .
8.6 Remedies .
Executive agrees that any breach of the terms of this
Section 8 would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law;
Executive therefore also agrees that in the event of said breach or
any threat of breach and notwithstanding Section 9 the Company
shall be entitled to seek an immediate injunction and restraining
order from a court of competent jurisdiction to prevent such breach
and/or threatened breach and/or continued breach by Executive
and/or any and all persons and/or entities acting for and/or with
Executive, without having to prove damages. The availability of
injunctive relief shall be in addition to any other remedies to
which the Company may be entitled at law or in equity, but remedies
other than injunctive relief may only be pursued in an arbitration
brought in accordance with Section 9. The terms of this
paragraph shall not prevent the Company from pursuing in an
arbitration any other available remedies for any breach or
threatened breach of this Section 8, including but not limited
to the recovery of damages from Executive. Executive hereby further
agrees that, if it is ever determined, in an arbitration brought in
accordance with Section 9, that willful actions by Executive
have constituted wrongdoing that results in an accounting
restatement due to the material noncompliance of the Company with
financial reporting requirements in any report or statement filed
by the Company with the U.S. Securities and Exchange Commission,
then the Company, or its successor, as appropriate, may recover all
of any bonus or other incentive-based or equity based compensation
received by Executive during the 12-month period following the
first public issuance or filing with the U.S. Securities and
Exchange Commission, whichever first occurs, of the financial
document embodying such financial reporting requirement, less the
amount of any net tax owed by Executive with respect to such award
or payment over the tax benefit to Executive from the repayment or
return of the award or payment, pursuant to Sections 5.3 or 5.4.
The Company or its successor may, in its sole discretion, affect
any such recovery by (i) obtaining repayment directly from
Executive; (ii) setting off the amount owed to it against any
amount or award that would otherwise be payable by the Company to
Executive; or (iii) any combination of (i) and
(ii) above.
9. Governing Law;
Disputes; Arbitration .
9.1 Governing Law .
This Agreement is governed by and is to be construed, administered,
and enforced in accordance with the laws of the District of
Columbia, without regard to conflicts of law principles. If under
the governing law, any portion of this Agreement is at any time
deemed to be in conflict with any applicable statute, rule,
regulation, ordinance, or other principle of law, such portion
shall be deemed to be modified or altered to the extent necessary
to conform thereto or, if that is not possible, to be omitted from
this Agreement. The invalidity of any such portion shall not affect
the force, effect, and validity of the remaining portion hereof. If
any court determines that any provision of Section 8 is
unenforceable because of the duration or geographic scope of such
provision, it is the parties’ intent that such court
shall
15
have the power to modify the duration or
geographic scope of such provision, as the case may be, to the
extent necessary to render the provision enforceable and, in its
modified form, such provision shall be enforced.
9.2 Arbitration . Any
dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in the
District of Columbia by a single arbitrator in accordance with the
Employment Arbitration Rules and Mediation Procedures of the
American Arbitration Association in effect at the time of
su
|