Employment Agreement - Intergraph Corp. and John W. Wilhoite
EMPLOYMENT AGREEMENT
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This Agreement is made and entered into as of August 23,
1999, by and between INTERGRAPH CORPORATION (the "Company") and
JOHN W. WILHOITE (the "Employee").
RECITALS:
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The Company desires to continue to employ the Employee as
Executive Vice President and Chief Financial Officer of the
Company and the Employee desires to continue employment in such
capacity all on the terms set forth herein.
AGREEMENT:
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NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the Company agrees with
Employee, and Employee agrees with Company, as follows:
1. Definitions.
1.1 "Cause" means (i) conduct amounting to fraud,
embezzlement or misappropriation; (ii) the material breach by the
Employee of this Agreement; or (iii) engaging in activities
prohibited hereunder.
2. Terms of Employment; Duties.
2.1 The Company employs the Employee as Executive Vice
President and Chief Financial Officer of the Company and the Employee
accepts such employment in those capacities subject to the terms
and conditions hereof. In such position, Employee shall (i)
continue to perform substantially the functions and operate with
the authority as his current functions and authority with the
Company, reporting directly to the Chief Executive Officer of the
Company; and (ii) have such managerial and executive duties and
responsibilities with respect to the business of the Company as
the Company shall determine from time to time, consistent with
clause (i) of this Section 2.1 and with his current position and
current authority.
2.2 Throughout his employment hereunder, the Employee shall
devote sufficient time, energy and skill to perform the duties of
his employment (vacations, reasonable personal time off, and
reasonable absences due to illness excepted), shall faithfully
and industriously perform such duties, and shall use his best
efforts to follow and implement all management policies and
decisions of the Company.
2.3 This agreement is being consummated subsequent
to a decision within Intergraph to significantly verticalize the
organization. This verticalization will significantly change the
reporting structure in the Company, including the reporting
structure to the CFO. Much of the current financial and
administrative manpower will be allocated to the vertical units,
however the requirement to maintain overall financial control and
reporting will remain with the CFO. During this transition, the
CFO may be required to not only act as Intergraph's CFO, but also
act in the lead capacity for financial and adminstrative control in
one or more of the vertical units.
3. Compensation.
3.1 For his services hereunder, the Company shall pay to
Employee an annual salary at the rate, effective the date of this
Agreement, of one hundred eighty-two thousand dollars ($182,000),
with appropriate merit and cost of living increases annually
thereafter. Such salary shall be paid in accordance
with the payroll payment practices of the Company from time to
time and shall be subject to such deductions and withholdings as
are required by law or as may be permitted by the terms of this
Agreement or by Employee's written consent.
3.2 Employee shall be entitled to paid vacation during each
twelve (12) month period during the term of this Agreement in
accordance with Company policy, plus all Company holidays and
personal time consistent with Employee's position.
3.3 The Employee shall be entitled to Company-paid health
insurance under the Company's health insurance plan and all other
standard employee benefits offered from time to time by the
Company, and to stock options under the Company's stock option
plans as determined by the Administrative Committee of such
plans.
3.4 The Employee shall not be entitled to receive any
compensation in addition to that set forth in this Section 3 for
any services provided by him in any capacity to the Company
unless agreed to by the Company.
4. Term and Termination of this Agreement.
4.1 The term of this Agreement shall commence as of the
date hereof and shall end on August 12, 2002, with annual
renewals thereafter as mutually agreed by Employee and the
Company. No later than ninety (90) days prior to the end of the
initial term hereof, the Company shall notify the Employee as to
its intent to renew this Agreement at the end of the term.
4.2 This Agreement and Employee's employment hereunder may
be terminated (a) by the Employee upon not less than thirty (30)
days notice; (b) by mutual agreement of the Employee and the
Company; (c) by the Company immediately for Cause; (d) by the
Company without Cause upon not less than sixty (60) days notice;
(e) upon the death of Employee; or (f) by the Employee
immediately upon breach of this Agreement by the Company. This
Agreement shall, at the option of Employee, be deemed
automatically terminated by the Company without cause pursuant to
Section 4.2(d), upon written notice to the Company by Employee of
the exercise of such option by Employee, (a) in the event of the
merger or consolidation of the Company with or into any other
entity or entities other than any merger or consolidation of the
Company effected solely for the purpose of changing the corporate
domicile of the Company; (b) in the event that any person or
entity, acting directly or indirectly, shall acquire in a single
transaction or a series of related transactions, more than fifty
percent (50%) of the outstanding capital stock of the Company
other than any temporary acquisition by an underwriter or
investment banking organization in connection with a public
offering of capital stock by the Company; (c) in the event of the
sale or other disposition of substantially all of the operating
assets of the Company; (d) in the event of any other material
recapitalization, reorganization, restructuring, refinancing, or
change of ownership of the Company, not contemplated by the
provisions of clauses (a) through (c) above if any such other
recapitalization, reorganization, restructuring, refinancing, or
change of ownership will result in a change of control of at
least fifty percent (50%) of the outstanding voting stock of the
entity controlling the business of the Company after such
transaction; (e) in the event Employee's position is eliminated
or his current level of responsibility and authority is
materially reduced, whether through reorganization,
verticalization, or similar changes or for any other reason, and
whether such change is initiated by the Management Committee, by
the CEO, or by the Board of Directors; (f) in the event the
Management Committee by majority vote determines to reduce the
salary or benefits of Employee or to eliminate his position or
reduce the responsibility and authority of Employee as described
in (e) above, whether or not such vote is accepted by the CEO or
by the Board of Directors. Employee must exercise his option to
have this Agreement deemed automatically terminated by the
Company without Cause within thirty (30) days after the date on
which Employee is notified of such event or the date such event
occurs, at the discretion of the Employee.
4.3 Upon the termination of this Agreement and Employee's
employment hereunder, the Company shall have no further
obligation to the Employee or his personal representative
hereunder except for payment of salary earned through the
effective date of termination, plus in the case of termination
pursuant to Section 4.2(d) or 4.2(f), the payments and benefits
required by Section 5 below.
4.4 Upon the termination of this Agreement and the Employee's
employment hereunder, the Company will fully and forever release
and discharge the Employee from any claims, damages, and causes
of action they may have against him and covenant not to sue or
otherwise institute a cause of action or in any way participate
in legal or administrative proceedings against the Employee,
except as may be required by law, including any and all
liabilities, claims, demands, contracts, debts, obligations, and
causes of action of every nature, kind, and description, in law,
equity, or otherwise, whether or not now known or ascertained,
which heretofore do or may exist. Nothing herein will release
the Company from their obligation to indemnify the Employee for
any actions taken or not taken in his capacities as an Officer of
the Company and an officer and/or Director of the Company's
subsidiary companies in accordance with Alabama law and Company
policy.
5. Termination Payment. In the event this Agreement and
Employee's employment hereunder is terminated pursuant to Section
4.2(d) or 4.2(f), the Company shall pay to Employee, in addition
to salary earned through the termination date as described in
Section 4.3, an amount equal to fifty-two (52) times the then-
current weekly compensation of the Employee, payable, at the
option of the Employee, in twelve (12) monthly installments or in
a lump sum, and any other financial obligations owed to the
Employee upon involuntary separation under Company sponsored
benefit plans or programs, including ERISA plans, in existence at
the time of separation, and will fully vest all then unvested
stock options of the Employee. In addition, the Company shall
continue to provide the Employee and his dependents Company-paid
health insurance and all other employee benefits for fifty-two
(52) weeks from the date of separation.
6. Notice. All notices, requests, demands and other
communications required hereunder shall be in writing and shall
be deemed to have been duly given if personally delivered or if
mailed, by United States certified or registered mail, prepaid or
if sent by overnight courier such as Federal Express postage
prepaid to the party to which the same is directed at the
following addresses (or at such addresses as shall be given in
writing by the parties to one another):
If to Company:
Intergraph Corp.
Attn: James W. Meadlock, Chief Executive Officer
Huntsville, Alabama 35894
If to Employee:
Mr. John W. Wilhoite
7707 Foxfire Drive
Huntsville, AL 35802
Notices delivered in person or sent by cable, telegram,
telecopier or telex or by prepaid overnight carrier shall be
effective on the date of delivery. Notices delivered by mail as
aforesaid shall be effective upon the third calendar day
subsequent to the postmark date thereof.
7. Miscellaneous.
7.1 This Agreement may be assigned by the Company only with
the consent of the Employee (and shall inure to the benefit of
any such assignee) in connection with any transfer of assets or
capital stock of the Company (including any such transfer by
merger, consolidation, operation of law or otherwise); provided,
that as a condition to any such assignment (including any
assignment by merger, consolidation, transfer of assets,
operation of law or otherwise) the Company shall require the
assignee, by agreement in form and substance satisfactory to
Employee, to expressly assume the obligations of the Company
hereunder. Except as set forth above, none of the undersigned
parties shall have the right to assign this Agreement, or any
interest under this Agreement (whether by operation of law or
otherwise), without the prior written consent of the other party,
which consent shall not be unreasonably withheld. The waiver by
either party of any breach of this Agreement by the other party
shall not be effective unless in writing, and no such waiver
shall constitute the waiver of the same or another breach on a
subsequent occasion.
7.2 This Agreement shall be governed by and construed in
accordance with the laws of the State of Alabama.
7.3 This Agreement embodies the entire agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be modified in any way unless by written
instrument signed by all of the parties hereto.
7.4 The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this
Agreement shall not affect the enforceability of the remaining
portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, or
clauses contained in this Agreement shall be declared invalid,
this Agreement shall be construed as if such invalid word or
words, phrase or phrases, sentence or sentences, clause or
clauses, or section or sections had not been inserted.
7.5 The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach or
violation.
7.6 The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.7 Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and
assigns, any rights or remedies under or by reason of this
Agreement.
The parties have executed this Agreement as of the day and
date first above written.
EMPLOYEE: /s/ John W. Wilhoite
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John W. Wilhoite
COMPANY:
INTERGRAPH CORPORATION
By: /s/ James W. Meadlock
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James W. Meadlock
Chief Executive Officer