Severance Agreement - Vastera Inc. and Robert Skinner
THIS SEVERANCE AGREEMENT (the "Agreement"), is made and entered into this 13th day of February, 2004 (the "Effective Date") by and between Vastera, Inc., a Delaware corporation with its principal place of business at 45025 Aviation Drive, Dulles, VA 20166 ("Vastera" or the "Company"), and Robert Skinner ("Skinner" or the "Employee").
WHEREAS, Employee is currently, employed by the Company in a critical managerial position with the Company;
WHEREAS, Employee is currently employed by the Company on an at-will basis;
WHEREAS, at the time an offer of employment was made to Employee, the Company and Employee agreed that he would be given six month's severance protection in the event his employment was terminated under certain circumstances; and
WHEREAS, Employee and the Company now desire to memorialize and formalize the agreement between them regarding the severance protections to be afforded Employee.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue Employee's current employment as its Vice President, Global Sales, Professional Services and Marketing unless terminated earlier in accordance with provisions contained herein below. The Employee shall be based at the Company's headquarters in Dulles, Virginia or such other place within a 40-mile radius thereof, as may be reasonably requested by the Company. The Employee shall be subject to the supervision of, and shall have such authority as is delegated to him by, the Chief Executive Officer or the Board of Directors (the "Board"), as the case may be.
2. Effect of Termination: Termination at the Election of the Company or the Employee for Good Reason. If the Employee's employment is terminated (i) other than for cause (as defined hereinbelow) by the Company or (ii) by the Employee for good reason (as defined hereinbelow), the Company shall pay to Employee an aggregate severance amount equal to 50% of the Employee's annual base salary in effect as of the date of such termination (i.e., six months' base salary and such amount being referred to as the "Severance Amount"). At the discretion of the Company, payment of the Severance Amount may be made in either a single lump sum amount or in periodic payments consistent with the Company's payroll policies and practices. Payment of the Severance Amount shall be contingent upon the Employee signing a Release and Waiver Agreement substantially in the form attached hereto as Exhibit A. In addition to the Severance Amount, the Company shall provide Employee with full medical, dental, and vision benefits through the sixth full month following the date of Employee's termination.
For the purposes of this Section 2, termination "for cause" shall be deemed to exist upon:
except in cases involving the mental or physical incapacity or disability of the Employee; provided however, that the Company may terminate the Employee's employment pursuant to this subsection (b) only after the failure by the Employee to correct or cure, or to commence and continue to pursue the correction or curing of, such refusals within 30 days after receipt by the Employee of written notice by the Company of each specific claim of any such misconduct or failure. The Employee shall have the opportunity to appear before the Board to discuss such written notice during such 30-day period. "Willful misconduct" and "willful failure to perform" shall not include actions or inactions on the part of the Employee that were taken or not taken in good faith by the Employee; and
For the purposes of this Section 2, "good reason" shall be deemed to exist when there occurs: (A) a material change in the reporting responsibilities of the Employee to someone other than the Chief Executive Officer or the Board; (B) a substantial diminution of the Employee's responsibilities; (C) any reduction in the Employee's level of compensation without the approval of the Employee; or (D) a transfer of the Employee's work location for purposes of performing his duties hereunder to a location that is beyond a 40-mile radius from the Company's current headquarters location in Dulles, Virginia.
3. Entire Agreement. This Agreement and the exhibits hereto constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement.
4. Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Employee.
5. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Virginia.
6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation with which or into which the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by him.
7. Waiver of Jury Trial. The parties agree that they have waived their right to a jury trial with respect to any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, or arising out of or relating to the employment of the Employee, or the termination thereof, including any claims under federal, state, or local law, and that any such controversy, claim, or dispute shall be heard and adjudicated in the state courts of the Commonwealth of Virginia, in Fairfax County.
IN WITNESS WHEREOF, the parties hereto have executed this Severance Agreement as of the day and year set forth above.
Brian D. Henderson
Chief Financial Officer