The executives are eligible to participate in all of the Company’s applicable benefit plans and programs pursuant to the terms of such programs.
If the executive’s employment is terminated in the event of the executive’s disability or death, the Company shall pay to the executive or to the executive’s designated beneficiary or estate an amount equal to one year of his base salary at the rate then in effect, plus an amount equal to his target bonus for such year. In addition, all of the restricted stock, stock appreciation rights (“SARs”) and stock options granted to the executive pursuant to the Company’s 2004 Long-Term Incentive Plan (“2004 Plan”) or any successor plan will vest and become exercisable if not then vested or exercisable.
If the Company terminates the executive’s employment without “Cause” (as defined in the agreement) or if the executive terminates his employment for “Good Reason” (as defined in the agreement) (other than following a Change in Control), he will be entitled to severance in an amount equal to one year of his base salary at the rate then in effect, plus an amount equal to his target bonus for such year. In addition, the Company will pay his COBRA premium for continuation of health coverage plus provide certain outplacement services, all subject to the executive’s signing a general release and complying with the non-competition and non-solicitation agreements described below. In addition, all shares of restricted stock, SARs and stock options granted to the executive pursuant to the Company’s 2004 Plan or any successor plan will vest and become exercisable if not then vested or exercisable.
If within twelve months after a “Change in Control” (as defined by reference to the definition of Change in Control contained in the 2004 Plan), the Company terminates the executive’s employment other than for Cause, death or disability or the executive terminates his employment for Good Reason, he will be entitled
to a severance payment equal to two times his base salary at the rate then in effect, plus two times his target bonus, together with the other benefits and 2004 Plan awards as specified in the preceding paragraph. In the event of a Change in Control, the executive will also be entitled to a tax gross-up payment intended to make him whole for excise taxes that may be imposed on the Change in Control payments.
In the event of a Change in Control, all restricted stock, SARs and stock options granted to the executive pursuant to the Company’s 2004 Plan or any successor plan will vest and become exercisable if not then vested or exercisable.
The executives will be subject to standard confidentiality and non-disparagement agreements during and following their employment as well as customary non-competition and non-solicitation covenants which will continue following the termination of their employment.
The above description of the employment agreement is not complete and is qualified in its entirety by the full text of the employment agreement, which is filed as Exhibit 10.33 to this Current Report on Form 8-K.
The employment agreements of Messrs. Freeland, Norona, and Wade include an Attachment C, filed as Exhibits 10.34, 10.35 and 10.36, respectively, to this Current Report on Form 8-K, which specifies certain additional agreed-upon terms of their employment that are not otherwise reflected in the form agreement. The employee agreements of Messrs. Murray and Wade supercede and replace their prior employment agreements.
Effective June 4, 2008, the Company and Darren R. Jackson, the Company’s President and Chief Executive Officer, entered into a First Amendment to the Employment Agreement between the Company and Mr. Jackson dated as of January 7, 2008 (“First Amendment”). The First Amendment provides for immediate vesting or exercisability of shares of restricted stock, stock options or SARs granted pursuant the 2004 Plan upon the termination of Mr. Jackson’s employment in the event of death or disability. In addition, the First Amendment clarifies that upon termination of employment in the event of disability, Mr. Jackson will be entitled to receive payment of the target bonus amount. The foregoing description of the First Amendment is not complete and is qualified in its entirety by the full text of the First Amendment, which is filed as Exhibit 10.32 to this Current Report on Form 8-K.
