FIRST AMENDMENT TO EMPLOYMENT AGREEMENT AND GENERAL RELEASE
Exhibit
10.8
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT AND
GENERAL RELEASE
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”), is entered
into this 15th day of August, 2007, by and between Corrections Corporation of America, a Maryland
corporation having a principal place of business at 00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx
(the “Company”), and Xxxxxxx X. Xxxxxxx, a resident of Nashville, Tennessee (the “Executive”). All
capitalized terms used herein but otherwise not defined shall have the meaning as set forth in the
Employment Agreement, as herein defined.
WHEREAS, the Company and the Executive are parties to that certain Employment Agreement, dated
March 13, 2007 (the “Employment Agreement”), pursuant to which the Executive currently serves as
Executive Vice President and Chief Development Officer of the Company;
WHEREAS, the Executive has decided to voluntarily resign his position as Executive Vice
President and Chief Development Officer of the Company, effective August 31, 2007;
WHEREAS, the Company desires to retain the Executive as an employee of the Company for a
period of time and on the terms and conditions set forth herein;
WHEREAS, the Executive acknowledges that by entering into this Agreement he will receive
certain benefits to which he would not otherwise be entitled as a result of his voluntary
resignation; and
WHEREAS, the Company and the Executive desire to resolve fully and finally all issues that may
arise out of the cessation of the Executive’s service as Executive Vice President and Chief
Development Officer of the Company and the termination of his employment as of the end of the Term
(as hereinafter defined).
NOW, THEREFORE, in consideration of the premises, the mutual agreements contained herein, and
other good and valuable consideration, the receipt, sufficiency and mutuality of which are hereby
acknowledged, the Company and the Executive hereby agree as follows.
1. Amendments.
(a) Section 1 of the Employment Agreement is hereby amended to read in its entirety as
follows:
“1. Employment. During the Term of this Agreement, the Executive shall be employed
by the Company upon the terms and conditions set forth herein. During the Term, the Executive will
serve as an advisor to and will assist the Company with such matters as the Company may request,
including, without limitation, assistance to the Senior Vice Presidents of the Company with respect
to business development matters and continuing projects for which the Executive has previously
taken a leadership role as well as certain other projects as the Executive may be assigned from
time to time by the Chief Executive Officer. The Executive acknowledges that
1
during the Term he will not have the authority to bind the Company to agreements without the
express written consent of the Company, and that during such time, he will report to and take
instruction from the Company’s Chief Executive Officer.”
(b) Section 2 of the Employment Agreement is hereby amended to read in its entirety as
follows:
“2. Term. Subject to the provisions of termination as hereinafter provided, the term
of the Executive’s employment under this Agreement shall begin on September 1, 2007 and shall
terminate on August 31, 2008 (the “Term”).”
(c) Section 3 of the Employment Agreement is hereby deleted in its entirety.
(d) Section 4.1 of the Employment Agreement is hereby amended to read in its entirety as
follows:
“4.1 Base Salary. During the Term of this Agreement, the Company shall pay to the
Executive a salary of $321,368 (“Base Salary”), with said amount to be paid in equal installments
during the Term of this Agreement in accordance with the Company’s normal and usual payroll
schedule and practices (subject to Section 5.8 of this Agreement).”
(e) Section 4.2 of the Employment Agreement is hereby amended to read in its entirety as
follows:
“4.2 Bonus. Pursuant to the Company’s 2007 Cash Incentive Plan (the “2007 Plan”),
the Executive will be entitled to receive an amount equal to 0.67 multiplied by the amount, if any,
that the Executive would otherwise have been entitled to receive under the terms of the 2007 Plan
had the Executive continued to serve as Executive Vice President and Chief Development Officer of
the Company for the remainder of the Company’s 2007 fiscal year. Notwithstanding the foregoing,
Executive will not be entitled to participate in any similar incentive plan adopted for the 2008
fiscal year.”
(f) Sections 5.4, 5.5 and 5.6 of the Employment Agreement are hereby deleted in
their entirety.
(g) Section 5.7 of the Employment Agreement is hereby amended to remove the reference to
Section 5.5 of the Employment Agreement.
(h) Section 8 of the Employment Agreement is hereby deleted in its entirety.
2. Effect of Amendments. Except as expressly modified by the terms of the above
amendments, the provisions of the Employment Agreement shall continue in full force and effect.
3. Outstanding Equity Awards.
(a) Restricted Stock. Upon the execution of this Agreement, all 37,254 shares of
unvested restricted stock that have previously been awarded by the Company to the Executive
2
pursuant to the Company’s equity incentive plans shall be automatically forfeited to the
Company without any separate monetary consideration.
(b) Stock Options. As of the date of this Agreement, the Executive has 96,500 Company
stock options vested and unexercised pursuant to the Company’s
equity incentive plans and not subject to the terms of that certain
Resale Restriction Agreement, dated as of December 19, 2005, between
the Company and the Executive. Additional
stock options will vest (or resale restrictions applicable to such
options shall expire, as applicable) during the Term as set forth on Schedule A. All vested options
must be exercised during their term in accordance with the applicable award agreements. The
Executive acknowledges and agrees that any stock options granted to the Executive and not vested as
of the end of the Term or exercised within the time frame set forth above shall be forfeited to the
Company without monetary consideration. The Executive further
acknowledges that, upon execution of this Agreement, all options that
were awarded to the Executive in February 2007 shall be forfeited to the
Company without any separate monetary consideration.
4. General Release
(a) In consideration for the payments and additional benefits to be paid by the Company, the
Executive releases the Company and its affiliates (including all of its direct and indirect
subsidiaries) and all of its officers, directors, employees and agents (“Releasees”) from all
claims or causes of action of whatever nature that the Executive now may have and that he may
either know about or hereafter may learn about, arising from or during the Executive’s employment
or resulting from the termination of the Executive’s employment as Executive Vice President and
Chief Development Officer of the Company as of the execution of this Agreement. This means that
the Executive will not file any lawsuit for the purpose of obtaining any monetary award above and
beyond the amounts provided for in this Agreement, reinstatement of his employment or for any
equitable relief.
(b) The Executive acknowledges that this General Release includes, but is not limited to, all
claims arising under federal, state or local laws prohibiting employment discrimination and all
claims growing out of any legal restrictions on the Company’s right to terminate its employees
including any breach of contract, tort, whistleblower or retaliation claims. This General Release
also specifically encompasses any claims of negligence and all claims of employment discrimination
based on race, color, religion, creed, sex, and national origin, as provided under Title VII of the
Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981, all claims of discrimination based on
age, as provided under the Age Discrimination in Employment Act of 1967, as amended, and the Older
Workers Benefit Protection Act, all claims under the Employee Retirement Income Security Act
(ERISA) and all claims of employment discrimination under the Americans With Disabilities Act
(ADA), all claims under the Family and Medical Leave Act (FMLA), as well as claims under applicable
state and local laws concerning the Executive’s employment and/or payment of compensation to the
Executive. This General Release does not include, however, the release of any rights or claims the
Executive may have which arise after the Executive signs this Agreement.
(c) The Executive intends this Agreement to be binding upon himself, his estate, heirs and
assignees. The Executive understands and agrees that if he breaches this Agreement or if he files
any claim or lawsuit against the Company or the Releasees challenging the validity of this
Agreement or seeking any equitable relief or compensation in addition to that paid to him, the
Company or the Releasees may also bring a lawsuit or raise a claim against the Executive because of
such action, and a court may award damages, restitution, recoupment or setoff and the Executive, or
his estate, may be liable for such an award as well as all payments and benefits he
3
received under this Agreement prior to such time, including attorneys’ fees and costs incurred
by the Company or the Releasees.
(d) The Executive acknowledges that he has carefully read and fully understands all the
provisions of this Agreement, specifically including the General Release of claims included in the
Agreement. In addition, the Executive acknowledges that he has been given a period of at least
twenty-one (21) days to consider this Agreement and that he has been advised that he has the right
to, and should, consult with an attorney of his choice during this period at his expense. Finally,
the Executive acknowledges that, in considering whether to sign this Agreement, he has not relied
upon any representation or statement by anyone, either written or oral, not set forth in this
document and that he has not been threatened or coerced into signing this Agreement by any official
of the Company and that he has read, understands and fully and voluntarily accepts the terms of
this Agreement.
(e) The Executive acknowledges that he understands that he may revoke this Agreement at any
time during the seven (7) calendar day period after he has signed it. The Executive’s revocation,
if any, must be delivered to Xxxx X. Xxxxxxxx before the eighth (8th) day following his execution
of this Agreement.
5. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, and all of which, taken together, shall be deemed to be one and the
same instrument.
6. Headings. Section headings are for convenience or reference only and shall not be
used to construe the meaning of any provision in this Amendment.
7. Governing Law. The validity, interpretation and effect of this Amendment shall be
governed exclusively by the laws of the State of Tennessee without regard to the choice of law
principals thereof.
8. Severability. Should any part of this Amendment be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity and enforceability of the remaining
portion.
9. Successors. This Amendment shall be binding upon and inure to the benefit of the
respective parties and their permitted assigns and successors in interest.
10. Waivers. No waivers of any breach of any of the terms or conditions of this
Amendment shall be held to be a waiver of any other or subsequent breach; nor shall any waiver be
valid or binding unless the same shall be in writing and signed by the party alleged to have
granted the waiver.
[remainder of page left intentionally blank]
4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
written.
CORRECTIONS CORPORATION OF AMERICA
By: /s/ Xxxx X. Xxxxxxxx |
||
Name: Xxxx X. Xxxxxxxx | ||
Title: Chief Executive Officer and President | ||
/s/ Xxxxxxx X. Xxxxxxx | ||
Xxxxxxx X. Xxxxxxx |
5
Schedule A
Vesting Schedule
Grant Date | Number of Shares Subject to Options | Vesting Date | ||||
2/16/2005
|
22,500 | 2/16/2008 (1) | ||||
2/16/2006
|
21,500 | 2/15/2008 |
(1) | These shares are vested, but remain subject to the terms of that certain Resale Restriction Agreement, dated as of December 19, 2005, between the Company and the Executive. |
6