Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is entered into as of
January 1, 2000, between PEC Solutions, Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxx (the "EXECUTIVE").
WHEREAS, the Executive is currently an employee of the Company; and
WHEREAS, the Company and the Executive desire to continue the
Executive's employment with the Company on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the legal sufficiency of which is hereby acknowledged, and
intending to be legally bound, the Company and the Executive agree as follows:
1. EMPLOYMENT. The Company hereby agrees to continue to employ the
Executive, and the Executive hereby agrees to continue employment with
the Company, subject to the terms and conditions of this Agreement.
2. TITLE AND DUTIES.
2.1 TITLE. The Executive shall be employed as Chief Operating
Officer of the Company.
2.2 DUTIES. During his employment under this Agreement, the
Executive shall have such duties and responsibilities not
materially inconsistent with his title and position as may be
properly assigned to him from time to time by the Company's
Chief Executive Officer. The Executive shall devote full
attention and substantially all of his business time to the
business and affairs of the Company while employed under this
Agreement. The Executive shall use his best efforts to
faithfully perform his duties and fulfill his responsibilities
hereunder.
3. TERM. This Agreement shall be effective for a term (the "TERM OF THIS
AGREEMENT") which shall include: (i) an initial period beginning on
January 1, 2000 (the "EFFECTIVE DATE"), and continuing through December
31, 2001, and (ii) immediately after such initial period, successive
12-month renewal periods, through the last day of the renewal period in
which the Executive's employment with the Company is terminated as
provided in Section 5.
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4. COMPENSATION AND BENEFITS.
4.1 BASE SALARY. During the Executive's employment under this
Agreement, the Executive shall be entitled to receive a base
salary at an annual rate of not less than $203,112, payable in
cash in equal periodic installments not less frequent than the
periodic installments in effect for payment of salaries to the
Company's executives of the same level as the Executive (the
"BASE SALARY"). The Base Salary shall be subject to increases
pursuant to reviews by the Board of Directors of the Company
(the "BOARD OF DIRECTORS"), or a committee appointed by the
Board of Directors, at such times as salary reviews are
conducted generally for the Company's executives of the same
level as the Executive, but in no event less frequent than
annually.
4.2 INCENTIVE STOCK COMPENSATION AND BONUS. During the Executive's
employment under this Agreement, the Executive shall be
eligible to participate in any stock incentive plans and any
bonus plans as may be maintained by the Company from time to
time, in whole or in part, for executives of his level. The
Executive's awards under such stock incentive plans, and his
terms of participation in such bonus plans, shall be
determined by the Company, the Board of Directors or such
person or administrative body as provided under such plans.
4.3 BENEFITS. During his employment under this Agreement, the
Executive shall be entitled to: (i) participation in such
employee retirement and welfare benefit plans, programs,
policies and arrangements as maintained by the Company from
time to time, in whole or in part, for executives of his
level, including but not limited to the Company's employee
stock purchase plan (to the extent they become eligible to
participate), supplemental retirement plan, and plans
providing health benefits, disability benefits, life insurance
and sickness and accident insurance; and (ii) paid vacation,
holidays, leave of absence, leave for illness, funeral leave
and temporary disability leave in accordance with the policies
of the Company; and (iii) perquisites as from time to time
provided by the Company to executives of his level.
4.4 EXPENSES. During the Executive's employment under this
Agreement, the Company shall reimburse the Executive for
ordinary and reasonable out-of-pocket expenses incurred by him
in the performance of his duties hereunder, provided that the
Executive shall limit and account to the Company for such
expenses in accordance with the employee business expense
policies and practices of the Company.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION BY THE COMPANY WITHOUT GOOD CAUSE.
5.1.1 TERMINATION BY THE COMPANY WITHOUT GOOD CAUSE. The
Company may terminate the Executive's employment
under this Agreement without Good Cause at any time
by giving notice thereof to the Executive. Upon such
termination, the Executive shall be entitled to such
compensation as
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provided in Section 5.1.2. For purposes of this
Agreement, "GOOD CAUSE" means any of the following,
as determined by a majority vote of the Board of
Directors after notice to the Executive and an
opportunity for the Executive to be heard by the
Board of Directors:
(A) The Executive's conviction of, or plea of
nolo contendere to, a felony or crime
involving moral turpitude;
(B) The Executive's fraud on, or
misappropriation of any funds or property
of, the Company;
(C) Personal dishonesty, incompetence, willful
misconduct, willful violation of any law,
rule or regulation (other than minor traffic
violations or similar offenses), or breach
of fiduciary duty, by the Executive which
involves personal profit;
(D) Willful misconduct by the Executive in
connection with the performance of his
duties, or the Executive's willful failure
to perform his duties and responsibilities
in the best interests of the Company;
(E) The Executive's chronic use of alcohol,
drugs or other similar substances affecting
his work performance; or
(F) Breach by the Executive of any provision of
this Agreement or any non-disclosure,
non-competition, non-solicitation or other
similar agreement executed by the Executive
for the benefit of the Company.
5.1.2 SEVERANCE PAY. If the Executive's employment under
this Agreement is terminated during the Term of this
Agreement by the Company without Good Cause, the
Executive shall be entitled to continuation in
payment of his Base Salary, at the rate in effect
immediately before the date of termination, for a
period equal to the greater of (A) the period from
the day after his last day of employment hereunder
through the last day of the Term of this Agreement,
or (B) one year; provided that the Executive (a)
honors the restrictive covenants as provided in
Section 6 of this Agreement and (b) executes a
release of all claims arising from his employment by
the Company, in such form as may then be used by the
Company respecting termination of employees.
5.2 TERMINATION BY THE COMPANY FOR GOOD CAUSE; DEATH OR
DISABILITY.
5.2.1 TERMINATION BY THE COMPANY FOR GOOD CAUSE. The
Company may terminate the Executive's employment
under this Agreement for Good Cause by giving notice
thereof to the Executive specifying in reasonable
detail the Good Cause based upon which the Company
terminates his employment.
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5.2.2 TERMINATION UPON DEATH OR DISABILITY. This Agreement
shall terminate upon the Executive's death. If the
Company determines in good faith that the Executive
has a Total and Permanent Disability as defined in
this Section, the Company may terminate his
employment under this Agreement by notifying the
Executive thereof at least 30 days before the
effective date of termination. For purposes of this
Agreement, "TOTAL AND PERMANENT DISABILITY" means the
inability of the Executive to engage in any
substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than twelve months. If there is
any dispute between the parties as to the Executive's
Total and Permanent Disability, the Company shall
select or approve a physician whose determination as
to the Executive's Total and Permanent Disability
shall bind the parties hereto.
5.2.3 EFFECT OF TERMINATION BY THE COMPANY FOR GOOD CAUSE
OR TERMINATION UPON DEATH OR TOTAL AND PERMANENT
DISABILITY. If the Executive's employment under this
Agreement is terminated by the Company for Good Cause
or due to the Executive's death or Total and
Permanent Disability, all obligations of the Company
under this Agreement shall terminate, except as
provided in Section 5.3.
5.3 PAYMENT OF BASE SALARY UPON TERMINATION. Upon a termination of
the Executive's employment under this Agreement for any
reason, the Executive shall be entitled to receive his Base
Salary earned but unpaid through the date of termination, on
or before the day on which the Executive would have been paid
such amount if his employment hereunder had not been
terminated.
5.4 NO DUTY TO MITIGATE. The Executive shall not be obligated to
seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any
of the provisions of this Agreement, and such amounts shall
not be reduced whether or not the Executive obtains other
employment.
6. RESTRICTIVE COVENANTS.
6.1 CONFIDENTIAL INFORMATION. The Executive shall at all times
hold in a fiduciary capacity for the benefit of the Company
all secret, confidential or proprietary information, knowledge
or data relating to the Company, and all of its businesses,
which shall have been obtained by the Executive during his
employment by the Company and which shall not be or become
public knowledge (other than by acts by the Executive or his
representatives in violation of this Agreement), including,
but not limited to, information regarding clients and agents
of the Company (the "CONFIDENTIAL INFORMATION"). During the
Executive's employment with the Company under this Agreement
and after the termination of such employment, the Executive
shall not, without the prior written consent of the Company,
communicate or divulge any Confidential Information to any
Person (as defined in Section 6.5) other than the Company and
those designated by it or use any Confidential Information,
except for the benefit of the Company,
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provided that the Executive may make disclosures to comply
with the law or legal process. Immediately upon termination of
the Executive's employment with the Company at any time and
for any reason, the Executive shall return to the Company all
Confidential Information, including, but not limited to, any
and all copies, reproductions, notes or extracts of all
Confidential Information.
6.2 SOLICITATION OF EMPLOYEES. During the Term of this Agreement
and, if the Executive's employment under this Agreement is
terminated for any reason, for two years after the date of
such termination, the Executive shall not: (i) solicit,
participate in or promote the solicitation of any person who
was employed by the Company, at any time during the
three-month period prior to the Executive's termination of
employment under this Agreement, to leave the employ of the
Company; or (ii) on behalf of himself or any other Person,
hire, employ or engage any such person. The Executive further
agrees that, during such time, if an employee of the Company
contacts the Executive about prospective employment, the
Executive will inform such employee that he cannot discuss the
matter further without informing the Company.
6.3 SOLICITATION OF CLIENTS. During the Term of this Agreement
and, if the Executive's employment under this Agreement is
terminated for any reason, for two years after the date of
such termination, the Executive shall not, directly or
indirectly, solicit, entice or induce any Client (as defined
in Section 6.5) of the Company to become a Client of any
Person other than the Company, or to modify, curtail or cease
its business with the Company, and the Executive will not
assist any Person in taking any such action.
6.4 REMEDIES FOR BREACH. The Executive agrees that damages in the
event of any breach of Sections 6.1 through 6.3 by the
Executive would be difficult to ascertain. The Executive
therefore agrees that, notwithstanding anything in this
Agreement to the contrary, including but not limited to the
provisions of Section 13, the Company, in addition to and
without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in
any court of competent jurisdiction, enjoining any such
breach. The Executive hereby waives any and all defenses he
may have on the ground of lack of jurisdiction or competence
of the court to grant such an injunction or other equitable
relief. The existence of this right shall not preclude any
other rights and remedies at law or in equity which the
Company may have.
6.5 DEFINITIONS. For purposes of Section 6, the following
definitions shall apply:
6.5.1 "COMPANY." "COMPANY" means PEC Solutions, Inc. and
all of its subsidiaries and affiliates.
6.5.2 "CLIENT." "CLIENT" means any person, entity
(including but not limited to a corporation,
partnership or trust), division, business unit,
department or agency which, at the time of
termination of the Executive's employment hereunder
or at any time within two years prior thereto, shall
have
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purchased goods or services from the Company or shall
have contacted with the Company to purchase goods or
services from the Company.
6.5.3 "PERSON." "PERSON" means any individual or entity,
including but not limited to any corporation, trust,
sole proprietorship, joint venture or partnership.
6.6 SURVIVAL OF SECTION 6. The Executive agrees that the
nondisclosure, nonemployment and nonsoliciation agreements in
this Section 6 each constitute separate agreements
independently supported by good and adequate consideration
and, notwithstanding anything in this Agreement to the
contrary, shall be severable from the other provisions of, and
shall survive, this Agreement.
7. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if
sent by registered or certified mail to the Executive at the last
address he has filed in writing with the Company or, in the case of the
Company, to the Company's principal executive offices.
8. WITHHOLDING TAXES. The Company shall have the right, to the extent
permitted or required by law, to withhold from any payment of any kind
due to the Executive under this Agreement to satisfy the tax
withholding obligations of the Company under applicable law.
9. SUCCESSORS AND ASSIGNS. The rights, duties and obligations of a party
hereunder may not be assigned, delegated or assumed without the prior
written consent of the other party, provided that the Company may
assign this Agreement to any subsidiary thereof, without the
Executive's consent, and such assignment shall not constitute, a
termination of his employment hereunder. Nothing herein shall cause a
termination of this Agreement upon the acquisition, reorganization, or
merger of the Company. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors or permitted assigns. Nothing herein shall be construed to
confer upon any person not a party hereto any right, remedy or claim
under or by reason of this Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the Executive and the Company with respect to the subject matter
hereof and supersedes and voids any and all prior agreements or
understandings, written or oral, regarding the subject matter hereof.
11. AMENDMENT AND WAIVER. This Agreement may not be changed, modified, or
discharged orally, but only by an instrument in writing signed by the
parties. No waiver of any term or condition of this Agreement shall be
effective unless agreed to in writing between the parties.
12. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by the
laws of the Commonwealth of Virginia (without giving effect to choice
of law principles or rules thereof that would cause the application of
the laws of any jurisdiction other than the State of Virginia) and the
invalidity or unenforceability of any provisions hereof shall in no way
affect the validity or enforceability of any other provision. Any
provision of this
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Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of
such prohibition or unenforceability without invalidating or affecting
the remaining portion of such provision or the other provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
13. ARBITRATION. DISPUTES REGARDING THE EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS
AGREEMENT WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE COMPANY
AND THE EXECUTIVE, BUT EXCLUDING ANY DISPUTES REGARDING EXECUTIVE'S
COMPLIANCE WITH SECTION 6, SHALL BE SUBMITTED TO, AND SOLELY DETERMINED
BY, FINAL AND BINDING ARBITRATION CONDUCTED BY JAMS/ENDISPUTE, INC.'S
ARBITRATION RULES APPLICABLE TO EMPLOYMENT DISPUTES, AND THE PARTIES
AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY SUCH
PROCEEDING. THE ARBITRATOR SHALL APPLY THE LAWS OF THE COMMONWEALTH OF
VIRGINIA WITH RESPECT TO THE INTERPRETATION OR ENFORCEMENT OF ANY
MATTER RELATING TO THIS AGREEMENT; IN ALL OTHER CASES THE ARBITRATOR
SHALL APPLY THE LAWS OF THE STATE SPECIFIED IN COMPANY'S ALTERNATIVE
DISPUTE RESOLUTION POLICY AS IN EFFECT FROM TIME TO TIME (IF ANY).
ARBITRATION MAY BE HELD IN FAIRFAX COUNTY, VIRGINIA, OR SUCH OTHER
PLACE AS THE PARTIES MAY MUTUALLY AGREE, AND SHALL BE CONDUCTED ONLY BY
A FORMER JUDGE. JUDGMENT UPON THE AWARD BY THE ARBITRATOR MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
PEC SOLUTIONS, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Title: President and Chief Executive Officer
EXECUTIVE
/s/ XXXX X. XXXX
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Xxxx X. Xxxx
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