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EXHIBIT 10.16
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("the Agreement") is made effective January
1, 2001 between American Management Systems, Incorporated, a corporation formed
under the laws of the State of Delaware with its principal place of business at
4000 and 0000 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("AMS" or "the Employer"), and
[Executive's Name] ("the Employee").
WHEREAS, AMS desires to engage the services of the Employee as
Executive Vice President, and the Employee is willing to render such services to
AMS in consideration of the terms and conditions agreed to by the parties; and
WHEREAS, the Board of Directors of AMS ("the Board") has approved the
employment of the Employee on the terms and conditions set forth in this
Agreement;
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 by the parties hereto, AMS agrees
to employ the Employee, and the Employee agrees to perform services for AMS as
an employee, effective as of January 1, 2001 upon the terms and conditions set
forth herein.
1. TERM.
The initial term of this Agreement shall end on June 30, 2002, unless
it is terminated earlier as provided herein. Beginning on that date,
and on each anniversary thereafter, unless it is terminated earlier as
provided herein or AMS delivers written notice to the Employee of its
intention not to extend the Agreement at least 90 days before such
anniversary date, the term of this Agreement shall automatically be
extended for one additional year. The restrictive covenants in Sections
9 and 10 hereof shall survive the termination of this Agreement.
2. TITLE AND DUTIES.
The Employee shall be employed as Executive Vice President of AMS. The
Employee shall perform such services consistent with his position as
might be assigned to him from time to time and are consistent with the
bylaws of AMS. The Board has appointed the Employee to serve as the
__________________________ and shall have such responsibilities and
authority as is commensurate with such offices and as may be prescribed
by the Board and by-laws of AMS.
3. LOCATION.
The Employee's place of employment shall be the Employer's offices
described above, or at such other location within a 25 mile radius of
the location of the offices described above as the Board shall
reasonably direct.
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4. EXTENT OF SERVICES.
a. GENERAL.
The Employee agrees not to engage in any business activities
during the term of this Agreement except those that are for
the benefit of AMS, and to devote his entire business time,
attention, skill and effort to the performance of his duties
under this Agreement. Notwithstanding the foregoing, the
Employee may engage in charitable, professional and civic
activities that do not impair the performance of his duties to
AMS, as the same may be changed from time to time. Nothing
contained herein shall prevent the Employee from managing his
own personal investments and affairs, including but not
limited to investing his assets in the securities of publicly
traded companies; provided, however, that the Employee's
activities do not constitute a conflict of interest, violate
securities laws, or otherwise interfere with the performance
of his duties and responsibilities as described herein. The
Employee agrees to adhere to AMS's published policies and
procedures affecting directors, officers, employees, and
agents and shall use his best efforts to promote AMS's
interest, reputation, business and welfare.
b. CORPORATE OPPORTUNITIES.
The Employee agrees that he will not take personal advantage
of any AMS business opportunities that arise during his
employment with AMS and that might be of benefit to AMS. All
material facts regarding such opportunities must be promptly
reported to the Board for consideration by AMS.
5. COMPENSATION AND BENEFITS.
a. BASE SALARY.
The Employee's base salary for calendar year 2001 shall be
$375,000. The base salary shall be payable in accordance with
AMS's standard payroll practices. The Employee's annual base
salary shall be reviewed no less frequently than annually for
increases in the discretion of the AMS Compensation Committee
and/or Board, taking into account the compensation level for
employees with similar skills and responsibilities at
companies comparable to AMS, and the Employee's value to AMS
relative to other members of the executive management
committee; provided, however, that at no time during the term
of this Agreement shall the Employee's base salary be
decreased from the base salary then in effect except as part
of an general program of salary adjustment by AMS applicable
to all vice presidents and above.
b. INCENTIVE COMPENSATION.
The Employee shall participate in an incentive compensation
plan for the year 2001 and subsequent years. The incentive
compensation plan target for each year shall be reasonably
achievable. The incentive compensation plan for each year
shall provide that at least 50% of the potential payout under
the plan at each level of achievement
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is based on individual performance, and shall provide for a
total potential payout that is at least 200% of his base
salary in the case of a 2-year plan or 150% in the case of a
1-year plan. If the Employee's employment terminates before
the end of a fiscal year for any reason other than termination
for Cause, as defined herein, the Employee shall be entitled
to the incentive bonus for that year, based on actual results
for the entire year but prorated for the period of actual
employment, at the time that the incentive bonus otherwise
would have been paid.
To the extent that the Compensation Committee determines that
any of the foregoing objectives cannot be accomplished in a
manner consistent with the 1996 Incentive Compensation Plan
for Executive Officers (the "1996 Plan"), or would require AMS
to make payments that do not qualify for the exception from
Section 162(m) of the Internal Revenue Code for qualified
performance-based compensation ("Performance-Based
Compensation"), then, as soon as practicable but in any event
no later than September 30, 2001, AMS shall adopt amendments
to, or a supplement or replacement for, the 1996 Plan (subject
to shareholder approval if the Board or the Compensation
Committee determines that such approval is appropriate or
necessary) that will accomplish the foregoing objectives to
the greatest extent possible without requiring AMS to make any
payments that do not qualify as Performance-Based
Compensation.
c. ADDITIONAL COMPENSATION.
If the Employee is an employee in good standing of AMS on June
30, 2001 he shall be paid, as additional compensation, the sum
of $150,000 in a lump sum; provided, however, that if before
June 30, 2001 a change in control occurs as defined in the
Agreement between AMS and the Employee entered into on or
about September 15, 2000, styled "American Management Systems,
Incorporated Change In Control Executive Retention Agreement"
("the Change in Control Agreement"), this payment shall be
increased to $450,000. If the Employee is an employee in good
standing of AMS on June 30, 2002 he shall be paid, as
additional compensation, the sum of $250,000 in a lump sum.
The payments described in this paragraph shall be due the
Employee within 30 days of the stated dates.
d. OTHER BENEFITS.
The Employee shall be entitled to paid vacation, sick leave,
and holiday pay in accordance with AMS's policies in effect
from time to time, and to participate in such life, health,
and disability insurance, pension, deferred compensation and
incentive compensation plans, stock options and awards,
performance bonuses and other benefits as AMS extends, as a
matter of policy, to its executive employees. At no time
during the term of this Agreement shall the Employee's
participation in, or benefits received under, such plans or
programs be reduced without the written consent of the
Employee except as part of a general reduction that applies to
substantially all employees.
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(i) On the date that the Employee's employment terminates for any
reason, regardless of the Employee's actual age he shall be
treated as satisfying the requirements under the AMS Retiree
Medical Program that he must be at least age 55 and that his
age plus years of AMS service must equal at least 65;
provided, however, that if the employee is precluded from
participating in said plan as described, for any reason, he
shall be provided with the after-tax economic equivalent of
the benefits he would have received under the Program. The
economic equivalent of the benefits he would have received
under the Program shall be the lowest cost that would be
incurred by the Employee in obtaining health insurance
coverage for himself and his eligible dependents that will
provide benefits comparable to the benefits offered under the
AMS Retiree Medical Program, as AMS shall modify the Program
from time to time, less any required contributions under the
Program.
(ii) Upon the termination of the Employee's employment for any
reason, if the Employee's account balance under the American
Management Systems, Inc. Executive Deferred Compensation Plan
is payable to him in a lump sum or, in the case of retirement
benefits, in a form elected by the Employee pursuant to
Section 5.4 of that Plan, under no circumstances shall 10% of
the Employee's account balance be retained by AMS (as
permitted under certain circumstances by Section 5.6 of that
Plan).
(iii) Upon the termination of the Employee's employment for any
reason, the Employee shall have the continued right to
exercise any stock options that are not forfeited for the
remainder of the terms of the options or, if earlier, for the
maximum period permitted under the AMS stock option plan under
which the options were granted.
e. REIMBURSEMENT OF BUSINESS EXPENSES.
AMS shall promptly reimburse the Employee for all reasonable travel,
entertainment and other expenses incurred or paid by the Employee in
connection with, or related to, the performance of his duties,
responsibilities or services under this Agreement, upon presentation by
the Employee of such supporting information and documentation as AMS
may reasonably request in accordance with company policy and the
requirements of the Internal Revenue Code.
6. TERMINATION OF EMPLOYMENT.
a. TERMINATION DUE TO DEATH.
The Employee's employment and this Agreement shall terminate
immediately upon his death. If the Employee's employment is
terminated due to his death, his estate or his beneficiaries,
as the case may be, shall be entitled to:
(i) payment of any unpaid portion of his base salary
through the effective date of such termination;
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(ii) reimbursement for any outstanding reasonable business
expense he has incurred in performing his duties
hereunder;
(iii) the right to elect continuation coverage of insurance
benefits to the extent required by law;
(iv) any pension survivor benefits that may become due
pursuant to any employee benefit plan or program of
AMS; and
(v) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any
employee benefit plan or program of AMS, this
Agreement, or any other agreement between AMS and the
Employee.
b. TERMINATION DUE TO DISABILITY.
AMS may terminate the Employee's employment at any time if the Employee
becomes disabled, upon written notice by AMS to the Employee. If the
Employee's employment is terminated due to his disability, he shall be
entitled to:
(i) payment of any unpaid portion of his base salary through the
effective date of such termination;
(ii) reimbursement for any outstanding reasonable business expense
he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of insurance benefits
to the extent required by law; and
(iv) payment of any accrued but unpaid benefits, and any other
rights, as required by the terms of any employee benefit plan
or program of AMS, this Agreement, or any other agreement
between AMS and the Employee.
In addition, as soon as possible after the execution of this Agreement,
AMS shall make available to the Employee and other similarly-situated
employees a disability benefit, paid by AMS, that is in addition to the
disability benefits provided under its existing disability program and
that will be sufficient to ensure that the benefits otherwise payable
to the Employee under the terms of that program, together with the new
benefit and any benefits from other sources that are taken into account
in determining the amount of benefits payable under the existing
program, are at least 60% of his base pay and continue, during the term
of this Agreement, for as long as he remains disabled, up to age 65.
c. TERMINATION FOR CAUSE.
AMS may terminate the Employee's employment at any time for Cause,
provided that it gives written notice of termination to the Employee as
set forth below. If the Employee's employment is terminated for Cause,
as defined below, he shall be entitled to:
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(i) payment of any unpaid portion of his base salary through the
effective date of such termination;
(ii) reimbursement for any outstanding reasonable business expense
he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of insurance benefits
to the extent required by law; and
(iv) payment of any accrued but unpaid benefits, and any other
rights, as required by the terms of any employee benefit plan
or program of AMS, this Agreement, or any other agreement
between AMS and the Employee.
For purposes of this Agreement, a termination "for Cause" shall mean:
(1) the conviction of the Employee of, or the entry of a plea of guilty
or nolo contendere by the Employee to, any felony or misdemeanor
involving moral turpitude; (2) fraud, misappropriation or embezzlement
by the Employee; (3) the Employee's willful failure, gross negligence
or gross misconduct in the performance of his assigned duties for AMS;
(4) the Employee's breach of a fiduciary duty to AMS; (5) any act or
omission of the Employee not at the express direction of the board or
other appropriate authority that reflects adversely on the integrity
and reputation for honesty and fair dealing of AMS; or (6) the breach
by the Employee of any material term of this Agreement.
If AMS exercises its right to terminate the Employee for Cause, AMS
shall: (1) give the Employee written notice of termination at least
twenty (20) days before the date of such termination specifying in
detail the conduct constituting such Cause; and (2) deliver to the
Employee a copy of a resolution duly adopted by a majority of the
entire membership of the Board, after reasonable notice to the Employee
and an opportunity for the Employee to be heard in person by members of
the Board, finding that the Employee has engaged in such conduct.
d. TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE TERMINATION WITHOUT CAUSE.
AMS may terminate the Employee's employment at any time without Cause,
provided that it gives written notice of termination at least 60 days
before the date of such termination. If the Employee's employment is
terminated without Cause, or if there is a constructive termination
without Cause, as defined below, the Employee shall be entitled to
receive from AMS the following:
(i) payment of any unpaid portion of his base salary through the
effective date of such termination;
(ii) reimbursement for any outstanding reasonable business expense
he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of insurance benefits
to the extent required by law;
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(iv) full vesting of any unexercised stock options;
(v) payment of any accrued but unpaid benefits, and any other
rights, as required by the terms of any employee benefit plan
or program of AMS, this Agreement, or any other agreement
between AMS and the Employee;
(vi) payment of amounts equal to any premiums for health insurance
continuation coverage under any AMS health plans that is
elected by the Employee or his beneficiaries pursuant to
Section 4980B of the Internal Revenue Code, at a time or times
mutually agreed to by the parties, but only so long as the
Employee is not eligible for coverage under a health plan of
another employer (whether or not he elects to receive coverage
under that plan); and
(vii) a severance benefit in an amount equal to 250% if such
termination occurs on or before June 30, 2002, and 100% if
such termination occurs after June 30, 2002, of the Employee's
annual base salary in effect immediately preceding such
termination, but only if (1) the Employee executes a release
substantially identical to the release attached hereto, (2)
the period for revoking such release has expired, and (3) the
Employee has complied with the requirements of Sections 9 and
10 hereof.
AMS shall pay to the Employee 75% of the severance benefit in paragraph
(vii) within 30 days after all of the applicable conditions are
satisfied. The other 25% of the severance benefit shall be placed in an
interest-bearing escrow account for 12 months. If the Employee complies
with the covenants in Sections 9 and 10 hereof throughout that period,
the amount credited to the account shall be paid to him within 30 days
after the end of the period. If the Employee does not comply with the
requirements of Sections 9 and 10 hereof throughout that period, the
amount credited to the account shall be paid to AMS. All severance
benefits paid to the Employee shall be paid subject to all legally
required payroll deductions and withholdings for sums owed by the
Employee to AMS.
For purposes of this Agreement, constructive termination without Cause
shall mean a termination of the Employee at his own initiative
following the occurrence, without the Employee's prior written consent,
of one or more of the following events not on account of Cause:
(1) a significant diminution in the nature or scope of the
Employee's authority or the duties that the Employee performs,
unless the Employee is given new authority or assigned new
duties (whichever is applicable) that are substantially
comparable to his previous authority and duties;
(2) a significant reduction in the Employee's then current base
salary, or a significant reduction in his opportunities for
earnings under his incentive compensation plans, or the
termination or significant reduction of any employee benefit
or perquisite enjoyed by him (in each case except as part of
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a general reduction that applies to substantially all
employees or participants);
(3) the relocation of the Employee's office from its present
location to a location, more than 25 miles from Fairfax,
Virginia, without his prior written consent; or
(4) the failure of AMS to obtain an assumption in writing of its
obligation to perform this Agreement by any successor to all
or substantially all of the assets of AMS within 45 days after
a merger, consolidation, sale or similar transaction.
In the event the Employee is terminated without Cause or there is a
constructive termination without Cause, each party shall provide the
other with written notice not less than 30 days before the effective
date of the termination of employment.
e. VOLUNTARY TERMINATION.
If the Employee voluntarily terminates his employment on his own
initiative for reasons other than his death, disability, or
constructive termination without Cause, he shall be entitled to:
(i) payment of any unpaid portion of his base salary through the
effective date of such termination;
(ii) reimbursement for any outstanding reasonable business expense
he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of insurance benefits
to the extent required by law; and
(iv) payment of any accrued but unpaid benefits, and any other
rights, as required by the terms of any employee benefit plan
or program of AMS, this Agreement, or any other agreement
between AMS and the Employee.
A voluntary termination under this paragraph shall be effective upon 30
days' prior written notice to AMS unless the parties mutually agree to
extend the effective date.
7. MITIGATION AND OFFSET.
If the Employee's employment is terminated during the term of this
Agreement pursuant to the provisions of paragraph 6.d., above, the
Employee shall be under no duty or obligation to seek or accept other
employment, and no payment or benefits of any kind due him under this
Agreement shall be reduced, suspended or in any way offset by any
subsequent employment. The obligation of AMS to make the payments
provided for in this Agreement shall not be affected by any
circumstance including, by way of example rather than limitation, any
set-off, counterclaim, recoupment, defense, or other right that AMS may
assert, or due to any other employment or source of income obtained by
the Employee.
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8. ENTITLEMENT TO OTHER BENEFITS.
Except as expressly provided herein, this Agreement shall not be
construed as limiting in any way any rights or benefits the Employee,
his spouse, dependents or beneficiaries may have pursuant to any other
employee benefits plans or programs.
9. CONFIDENTIALITY.
The Employee acknowledges that all confidential information regarding
the business of AMS and its subsidiaries and affiliates is the
exclusive property of AMS. On or before the date that his employment
with AMS terminates, the Employee shall return to AMS all copies of any
material involving such confidential information to AMS, and the
Employee agrees that he will not, directly or indirectly, divulge or
use such information, whether or not such information is in written or
other tangible form. The Employee also shall return to AMS by that date
any other items in his possession, custody or control that are the
property of AMS. The Employee understands that even after the date that
his employment with AMS terminates he will remain bound by the terms of
the American Management Systems, Incorporated Intellectual Property
Rights Agreement, the AMS Employee Confidentiality Agreement, the AMS
Guide for Ethical Business Conduct, and the restrictive covenants
contained herein in paragraphs 9 and 10. This paragraph is intended to
cover confidential information of AMS that relates to the business of
AMS that has not otherwise been made public and shall not apply to
employee responses that may be required by proper governmental or
judicial inquiry. No breach of this Section shall be deemed to have
occurred unless AMS provides written notice to the Employee of the
breach within 90 days after AMS becomes aware of it.
10. NON-SOLICITATION.
Effective on the date that his employment with AMS terminates and for a
period of 12 months thereafter, the Employee shall not directly (a)
employ or solicit for employment, or assist in any way in solicitation
for employment, any person employed by AMS or any of its affiliates
then or at any time within the preceding 12 months; or (b) solicit, or
assist in any way in the solicitation of business from any of AMS's or
its affiliates' clients or prospective clients, either for the
Employee's own benefit or the benefit of anyone other than AMS, unless
the business being solicited is not competitive with the services or
products provided by AMS or its affiliates. Clause (b) shall not apply
unless the business being solicited is in a line of business in which
AMS was already engaged or already had under active consideration while
the Employee was employed by AMS or is a natural extension of such a
line business with a client that was an existing client of AMS during
that time.
11. EMPLOYEE REPRESENTATION.
The Employee represents and warrants to AMS that he is not now under
any obligation of a contractual or other nature to any person, business
or other entity that is inconsistent or in conflict with this Agreement
or that would prevent him from performing his obligations under this
Agreement.
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12. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall, if AMS or the Employee so elects, be settled by
arbitration, in accordance with the Commercial Arbitration Rules
procedures of the American Arbitration Association. Arbitration shall
occur before a single arbitrator, provided, however, that if the
parties cannot agree on the selection of such arbitrator within 30 days
after the matter is referred to arbitration, each party shall select
one arbitrator and those arbitrators shall jointly designate a third
arbitrator to comprise a panel of three arbitrators. The decision of
the arbitrator shall be rendered in writing, shall be final, and may be
entered as a judgment in any court in the Commonwealth of Virginia. AMS
and the Employee each irrevocably consent to the jurisdiction of the
federal and state courts located in Virginia for this purpose. The
arbitrator shall be authorized to allocate the costs of arbitration
between the parties. Notwithstanding the foregoing, AMS, in its sole
discretion, may bring an action in any court of competent jurisdiction
to seek injunctive relief in order to avoid irreparable harm and such
other relief as AMS shall elect to enforce the Employee's covenants in
Sections 9 and 10 hereof.
13. LEGAL EXPENSES.
Except as provided in Section 12 hereof, if any dispute or controversy
arises under or in connection with this agreement, AMS shall promptly
pay all the Employee's legal fees and expenses, including, by way of
example rather than limitation, reasonable attorneys' fees incurred by
the Employee in seeking to obtain or enforce any right or benefit under
this Agreement, provided, however, that this obligation of AMS shall
not apply unless the Employee prevails in whole or in part. This
obligation shall apply irrespective of whether the dispute or
controversy is resolved by arbitration, litigation, or a settlement
thereof. In addition, AMS shall pay to the Employee interest at the
prime lending rate as announced from time to time by Citibank, N.A. on
all or any part of any amount to be paid to the Employee hereunder that
is not paid when due.
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14. INDEMNIFICATION.
a. AMS agrees that if the Employee is made a party, or, is
threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative, or
investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee or AMS, or is or was
serving at the request of AMS as a director, officer, member,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of
such Proceeding is the Employee's alleged action in an
official capacity while serving as a director, officer,
member, employee or agent, the Employee shall be Indemnified
and held harmless by AMS to the fullest extent permitted or
authorized by AMS's certificate of incorporation and by-laws.
To the extent consistent with the foregoing, this obligation
to indemnify the Employee and hold him harmless shall continue
even if he has ceased to be a director, officer, member,
employee or agent of AMS or other such entity described above,
and shall inure to the benefit of the Employee's heirs,
executors and administrators. AMS shall advance to the
Employee all reasonable costs and expenses incurred by him in
connection with a Proceeding within 20 days after receipt by
AMS of a written request for such advance. Such request shall
include an undertaking by the Employee to repay the amount of
such advance if it shall ultimately be determined that the
Employee is not entitled to be indemnified against such costs
and expenses.
b. Neither the failure of AMS (including its Board, independent
legal counsel or stockholders) to have made a determination
before such Proceeding concerning payment of amounts claimed
by the Employee under the subparagraph above that
indemnification of the Employee is proper because he has met
the applicable standards of conduct, nor a determination by
AMS (including its Board, independent legal counsel or
stockholders) that the Employee has not met such applicable
standards of conduct, shall create a presumption that the
Employee has not met the applicable standards of conduct.
15. ASSIGNABILITY AND BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs (in the case of the
Employee) and assigns. No rights or obligations may be assigned or
transferred by AMS except that such rights or obligations may be
assigned or transferred pursuant to a merger or consolidation in which
AMS is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of AMS, provided that the assignee or
transferee is the successor to all or substantially all of the assets
of AMS and such assignee or transferee assumes the liabilities,
obligations, and duties of AMS, as contained in this Agreement, either
contractually, or as a matter of law. AMS further agrees, that in the
event of a sale of assets or liquidation as described in the foregoing
sentence, it shall take whatever action it is legally entitled to take
in order to Cause the assignee or transferee to expressly assume the
liabilities, obligations, and duties of AMS under this Agreement.
Notwithstanding any such assignment, AMS shall not be relieved from
liability under this Agreement. No rights or obligations of the
Employee
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under this Agreement may be assigned or transferred by the Employee
other than his right to receive compensation and benefits, provided
such assignment or transfer is otherwise permitted by law.
16. NOTICES.
All notices required or permitted hereunder shall be in writing and
shall be deemed effective: (1) upon personal delivery; (2) upon deposit
with the United States Postal Service, by registered or certified mail,
postage prepaid; or (3) in the case of delivery by nationally
recognized overnight delivery service, when received, addressed as
follows:
If to AMS to:
American Management Systems, Incorporated
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Chairman, Compensation Committee of the Board of Directors.
With a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Employee, to:
----------------------
----------------------
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or to such other address or addresses as either party shall designate
to the other in writing from time to time by like notice.
17. AMENDMENT.
This agreement may be amended or modified only by a written instrument
executed by both AMS and the Employee.
18. PRONOUNS.
Whenever the context might require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice
versa.
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19. CAPTIONS.
The captions appearing herein are for convenience of reference only an
in no way define, limit or affect the scope or substance of any section
hereof.
20. TIME.
All reference herein to periods of days are to calendar days, unless
expressly provided otherwise. Where the time period specified herein
would end on a weekend or holiday, the time period shall be deemed to
end on the next business day.
21. ENTIRE AGREEMENT.
Except for other agreements specifically referenced herein, this
Agreement constitutes the entire agreement between AMS and the Employee
and supersedes all prior agreements and understandings, whether written
or oral relating to the subject matter hereof.
22. SEVERABILITY.
In case any provision hereof shall be held by a court or arbitrator
with jurisdiction over AMS or the Employee to be invalid, illegal or
otherwise unenforceable, such provision shall be restated to reflect as
nearly as possible the original intentions of AMS and the Employee in
accordance with applicable law, and the validity, legality and
enforceability of the remaining provisions shall in not way be affected
or impaired thereby.
23. WAIVER.
No delays or omission by AMS or the Employee in exercising any right
hereunder shall operate as a waiver of that or any other right. A
waiver or consent given by AMS or the Employee or any one occasion
shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.
24. GOVERNING LAW.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the Commonwealth of Virginia, without
regard to its conflicts of laws principles.
25. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
AMS and the Employee and their respective successors and assigns,
including any entity with which or into which AMS might be merged or
that might succeed to its assets or business or any entity to which AMS
might assign its rights and obligations hereunder; provided, however,
that the obligations of the Employee are personal and shall not be
assigned or delegated by him.
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26. WITHHOLDING.
AMS may make any appropriate arrangements to deduct from all benefits
provided hereunder any taxes reasonably determined to be required to be
withheld by any government or government agency. The Employee shall
bear all taxes on benefits provided hereunder to the extent that no
taxes are withheld, irrespective of whether withholding is required.
27. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instruments.
28. CONSTRUCTION WITH PRE-EXISTING CHANGE IN CONTROL RETENTION AGREEMENT
The Change in Control Agreement referenced above is incorporated herein
by reference. If as a result of his termination of employment following
a Change in Control the Employee would otherwise be entitled to receive
both the benefit provided in Section 2 of the Change in Control
Agreement and the severance benefit provided in Section 6.d. hereof,
the Employee shall instead receive the greater of the two benefits, and
not both.
IN WITNESS WHEREOF, AMS and the Employee have executed this Agreement effective
as of January 1,2001.
EMPLOYEE American Management
Systems, Incorporated
By:
--------------------------------- --------------------------------
Date: Date:
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