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EXHIBIT 10.11
EXECUTIVE EMPLOYMENT, NON-COMPETE
AND CONFIDENTIALITY AGREEMENT
THIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT
entered into this 31st day of August, 1998 by and between Xxxxxxxx Xxxxxxx (the
"Executive") and MAXIMUS, Inc., a Virginia corporation with a usual place of
business in McLean, Virginia (the "Corporation"). Capitalized terms not defined
herein shall have the meanings set forth in the Agreement and Plan of Merger by
and among the Corporation, Carrera Consulting Group ("Carrera"), Carrera
Acquisition Corp. and the Executive dated August 31, 1998.
WHEREAS, as of the Effective Time the Executive shall be a key employee
of the Corporation and a holder of a substantial number of shares of the issued
and outstanding capital stock of the Corporation.
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Employment.
1.1 Duties. The Corporation hereby agrees to employ the Executive, and
the Executive hereby agrees to accept such employment, to serve as President of
Carrera Consulting Group, a division of the Corporation reporting directly to
the Chief Executive Officer, Xxxxx X. Xxxxxxx for the term set forth below. The
Corporation shall take all actions necessary to cause the Executive to be
elected to the Board of Directors of the Corporation and shall further take all
actions necessary for the Executive to be elected as Vice Chairman of the Board
of Directors of the Corporation promptly following her election to the Board of
Directors of the Corporation. The Executive hereby represents and warrants that
she is in good health and capable of performing the services required hereunder.
The Executive shall perform such services and duties as are appropriate to such
office or delegated to the Executive by the Chief Executive Officer or the Board
of Directors of the Corporation, including without limitation the duties and
responsibilities set forth in an authority and responsibility matrix to be
agreed upon by the Chief Executive Officer and the Executive. During the term of
this Agreement, the Executive shall be a full time employee of the Corporation
and shall devote such time and attention to the discharge of her duties as may
be necessary and appropriate to accomplish and complete such duties, including
without limitation attendance at monthly management meetings held at the
Corporation's offices in McLean, Virginia.
1.2 Compensation.
(a) Salary and Regular Year-End Bonus. As compensation for
performance of her obligations hereunder, the Corporation shall pay the
Executive an annual salary of not less
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than $240,000, such annual salary to be reviewed for adjustment on or about
October 1, 1999 and is eligible for a regular year-end bonus consistent with
Carrera's past practices. Such amounts shall be payable in accordance with the
Corporation's normal payroll practices.
(b) Vacation, Insurance, Expenses. The Executive shall be
entitled to such vacation benefits, health, disability and life insurance
benefits and expense reimbursements in a manner consistent with the
Corporation's past practices and as are provided by the Corporation to its other
Division Presidents.
(c) Other Benefits. The Executive shall be entitled to the
continued use of the automobile currently owned and provided for the use of the
Executive by Carrera at the expense of the Corporation, such expense to include
insurance, maintenance and all other reasonable expenses related to the use of
said automobile. The Corporation and the Executive will negotiate the terms and
conditions of any arrangement to be entered into in lieu of the provisions of
this Section 1.2(c).
1.3 Term; Termination. The term of the employment agreement set forth
in this Section 1 shall be for a period commencing at the Effective Time and
continuing for three (3) years thereafter provided that this Agreement shall
terminate:
(a) by mutual written consent of the parties;
(b) upon Executive's death or inability, by reason of physical
or mental impairment, to perform substantially all of Executive's duties as
contemplated herein for a continuous period of 120 days or more; or
(c) by the Corporation for cause, which shall mean in the
event of Executive's breach of any material duty or obligation hereunder, or
intentional or grossly negligent misconduct that is materially injurious to the
Corporation, as reasonably determined by the Corporation's Board of Directors,
or willful failure to follow the reasonable directions of the Corporation's
Board of Directors.
In addition, the Executive agrees to continue her employment with the
Corporation beyond the three year term described above, at her annual salary in
effect at such time, for the period of time that is required for her to locate
and train a suitable replacement for her position with the Corporation.
Upon any termination of employment under this Section 1.3, neither
party shall have any obligation to the other pursuant to this Section 1, but
such termination shall have no effect on the obligations of the parties under
other provisions of this Agreement.
2. Non-Competition.
2.1 Undertaking. The Executive agrees that while the Executive is
employed by the Corporation and thereafter, for a period of two (2) years after
termination or cessation of such employment for any reason, the Executive shall
not, without the Corporation's prior written consent, directly or indirectly, as
a principal, employee, consultant, partner, or stockholder of, or in any other
capacity with, any business enterprise (other than in the Executive's capacity
as a
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holder of not more than 1% of the combined voting power of the outstanding stock
of a publicly held company) (a) engage in direct or indirect competition with
the Corporation, (b) conduct a business of the type or character engaged in by
the Corporation at the time of termination or cessation of the Executive's
employment or (c) develop products or services competitive with those of the
Corporation.
2.2 Prohibited Activities.
(a) The Executive agrees that, during her employment with the
Corporation, and thereafter for a period of two (2) years after the termination
of such employment, the Executive will not engage in any unethical behavior
which may adversely affect the Corporation. For the purpose of this Section 2.2,
"Unethical Behavior" is defined as:
(i) any attempt, successful or unsuccessful, by the Executive
to divert any existing contracts or subcontracts from the Corporation to any
other firm, whether or not affiliated with the Executive;
(ii) any attempt, successful or unsuccessful, by the
Executive, to adversely influence clients of the Corporation or organizations
with which the Corporation has a contract or a proposal pending as of the date
of the Executive's termination from the Corporation;
(iii) any attempt, successful or unsuccessful, by the
Executive to divert any contracts or subcontracts which are pending as of the
date of Executive's termination from the Corporation to any other firm, whether
or not affiliated with the Executive;
(iv) any attempt, successful or unsuccessful, by the Executive
to offer her services, or to influence any other employee of the Corporation to
offer their services, to any firm to compete against the Corporation in the
performance of services provided under existing contracts or follow-ons to
existing contracts or pending proposals with the Corporation's clients as of the
date of the Executive's termination; or
(v) any attempt, successful or unsuccessful, by the Executive
to employ or offer employment to, or cause any other person to employ or offer
employment to any other employee of the Corporation.
(b) The provisions of this Section 2 shall continue for a period
of two (2) years after termination of the Executive's employment with the
Corporation, whether voluntary or involuntary, with or without cause. The
Executive shall notify any new employer, partner, association or any other firm
or corporation actually or potentially in competition with the Corporation with
whom the Executive shall become associated in any capacity whatsoever of the
provisions of this Section 2 and the Executive agrees that the Corporation may
give such notice to such firm, corporation or other person.
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2.3 Business Opportunities; Conflicts of Interest; Other Employment and
Activities of the Executive.
(a) The Executive, while an employee of the Corporation, agrees
promptly to advise the Corporation of, and provide the Corporation with an
opportunity to pursue, all business opportunities that the Executive becomes
aware of that reasonably relate to the present business conducted by the
Corporation.
(b) The Executive, in her capacity as an employee of the
Corporation, shall not engage in any business with any member of the Executive's
immediate family or with any person or business entity in which the Executive or
any member of the Executive's immediate family has any material ownership
interest or financial interest, unless and until the Executive has first fully
disclosed such interest to the Board of Directors and received written consent
from the Board of Directors, signed by the Chairman of such board. As used
herein, the term "immediate family" means the Executive's spouse, natural or
adopted children, parents or siblings and the term "financial interest" means
any relationship with such person or business entity that may monetarily benefit
the Executive or member of the Executive's immediate family, including any
lending relationship or the guarantying of any obligations of such person or
business entity by the Executive or member of her immediate family.
(c) The parties hereto acknowledge and agree that the Executive
may engage in outside civic, political, social, educational and professional
activities and may serve on the boards of directors of other corporations;
provided, however, that such activities shall not have priority over or
adversely affect or conflict with the business of the Corporation or its
clients, or interfere with the mobility of the Executive to fulfill the
Executive's duties to the Corporation as a full-time employee and/or officer or
director, as the case may be, of the Corporation, as conclusively determined by
the Board of Directors of the Corporation.
(d) The parties hereto agree that the Executive may, consistent
with this Section 2.3, receive and retain speaking fees, referral fees from
business opportunities not accepted by the Corporation, and fees from outside
business activities and opportunities of the Executive consented to by the Board
of Directors of the Corporation.
3. Confidentiality.
3.1 Non-Disclosure. The parties hereto agree that the Corporation's
books, records, files and all other information relating to the Corporation
(that is not otherwise available in the Public Domain), its business and its
clients are proprietary in nature and contain trade secrets and shall be held in
strict confidence by the parties hereto, and shall not, either during the term
of this Agreement or after the termination hereof, be intentionally disclosed,
directly or indirectly, to any third party, person, firm, corporation or other
entity, irrespective of whether such person or entity is a competitor of the
Corporation or is engaged in a business similar to that of the Corporation;
except in furtherance of the Corporation's business. The trade secrets or other
proprietary or confidential information referred to in the prior sentence
includes, without limitation, all proposals to clients or potential clients,
contracts, client or potential client lists, fee policies, financial
information, administration or marketing practices or procedures and all other
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information regarding the business of the Corporation and its clients not
generally known to the public.
3.2 Trade Secrets. The parties hereto hereby acknowledge and agree that
all proprietary information referred to in this Section 3 shall be deemed trade
secrets of the Corporation and that each party hereto shall take such steps,
undertake such actions and refrain from taking such other actions, as mandated
by the provisions hereof and by the provisions of the laws of the Commonwealth
of Virginia.
4. Stock Restrictions.
4.1 Transfers. The Executive may not offer, sell, assign, grant a
participation in, pledge or otherwise transfer ("Transfer") any of the
Executive's shares of Common Stock of the Corporation (including shares acquired
after the date hereof) (the "Shares") except in compliance with the Securities
Act of 1933, as amended (the "Act"), and any applicable state securities laws.
After one year from the date of acquiring the Shares the Executive shall be
permitted to sell the Shares pursuant to Rule 144 under the Act (as currently in
effect), subject to the applicable manner of sale, volume and current public
information restrictions of Rule 144.
4.2 Improper Transfer.
(a) Any attempt to Transfer any Shares not in compliance with this
Agreement shall be null and void and neither the Corporation nor any transfer
agent of the Corporation shall register, or otherwise recognize in the
Corporation's records, any such improper Transfer.
(b) The Executive shall not enter into any transaction or series
of transactions for the purpose or with the effect of, directly or indirectly,
denying or impairing the rights or obligations of the Corporation under this
Agreement, and any such transaction shall be null and void and, to the extent
that such transaction requires any action by the Corporation, it shall not be
registered or otherwise recognized in the Corporation's records or otherwise.
5. Registration Rights.
5.1 Secondary Registration.
(a) Registration for Resale. The Corporation intends to seek to
create liquidity for the Shares held by the Executive. In the sole discretion of
the Corporation, the Corporation may file with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-8 or Form S-3
(or similar form) sufficient to permit the public offering and sale of the
Registrable Shares (as defined below) through all securities exchanges and
over-the-counter markets on which the Corporation's Common Stock is then traded.
For the purposes of this Agreement, "Registrable Shares" shall mean outstanding
Shares held by the Executive and any other person holding registration rights
substantially the same as the rights set forth in this Section 5, which Shares
are not at that time the subject of an effective registration statement filed
with the Commission. For the purposes of this Agreement, "Holders" shall mean
the Executive and any person to whom the Executive has transferred Registrable
Shares.
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(b) Notice of Filing of Registration Statement. In the event the
Corporation determines to file a registration pursuant to Section 5.1(a), the
Corporation shall notify each Holder of the proposed filing and request that
each Holder notify the Corporation within 15 days thereafter of the number of
Registrable Shares such Holder wishes the Corporation to register on such
Holder's behalf. Each Holder shall, prior to the end of such 15 day period,
request in writing that the Corporation register the sale of all or part of such
Holder's Registrable Shares.
5.2 Piggyback Registration Rights.
(a) Offer to Include Registrable Shares in Corporation Offering.
If, at any time prior to the Registration Termination Date (as defined in
Section 5.4), the Corporation shall file a registration statement to register
shares of Common Stock for its own account in an underwritten offering with the
Commission (other than a Registration Statement on Form X-0, Xxxx X-0 or other
special purpose form) while any Registrable Shares are outstanding, the
Corporation shall give all the Holders at least thirty (30) days prior written
notice of the filing of such registration statement. Subject to 5.2(b) below, if
requested by any Holder in writing within fifteen (15) days after receipt of any
such notice, the Corporation shall register or qualify up to 20% of the number
of Registrable Shares received by the Executive on the Effective Date or, at
each Holder's option, any portion of the Registrable Shares of any Holders who
shall have made such request up to an aggregate amount equal to 20% of the
number of Registrable Shares received by the Executive on the Effective Date,
concurrently with the registration of such other securities, all to the extent
requisite to permit the public offering and sale of the Registrable Shares
through the facilities of all appropriate securities exchanges and the
over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to become
effective as promptly as practicable.
(b) Cutback of Participation in Corporation Offering.
Notwithstanding Section 5.2(a), if the managing underwriter of any such offering
shall advise the Corporation that, in its opinion, the distribution of all or a
portion of the Registrable Shares requested to be included in the registration
concurrently with the securities being registered by the Corporation would
materially adversely affect the distribution of such securities by the
Corporation for its own account, then the number of Registrable Shares held by
such Holder to be included in such registration statement shall be reduced to
the extent advised by such managing underwriter, provided that any such
reduction shall be made pro rata among the Holders electing to participate in
such registration based on the aggregate number of Registrable Shares held by
each Holder electing to so participate, and provided further that the total
number of Registrable Shares included in any such registration shall not be less
than 25% of the total number of shares of Common Stock included in the
registration for the Corporation's account, the Holders account and the account
of any other person.
5.3 Underwriting.
(a) Underwriting in Secondary Registration. If the Corporation
undertakes a registration under Section 5.1, any Holder wishing to distribute
the Registrable Shares which such Holder has requested to be registered in such
registration by means of an underwriting, shall so advise the Corporation in
such Holder's request to participate in such registration under Section 5.1(b).
The Holders of a majority of the Registrable Shares being offered may select one
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or more underwriters for the registration under Section 5.1, which selection
shall be approved by the Corporation, which approval shall not be unreasonably
withheld provided such underwriter(s) are experienced and reputable. The
Corporation shall, together with the Holders engaged in the registration
hereunder, enter into an underwriting agreement with the representative of the
underwriter or underwriters selected for such underwriting in accordance with
this Section 5.3(a).
(b) Underwriting in Piggyback Registration. In the event of an
underwritten registration pursuant to the provisions of Section 5.2, any Holder
who requests to have Registrable Shares included in such registration shall
enter into such custody agreements and powers of attorney as are reasonably
requested by the Corporation and any such underwriter, and, if requested, enter
into an underwriting agreement containing customary terms.
(c) Right of Withdrawal from Underwriting. In the event of an
underwritten offering under Section 5.3(a) or (b), the right of a Holder to
participate in a registration hereunder shall be conditioned upon the inclusion
of all or any portion of such Holder's Registrable Shares in such underwriting.
If a Holder disapproves of the terms of the underwriting, such Holder may elect
to withdraw therefrom by written notice to the Corporation and the underwriter
delivered at least seven (7) days prior to the effective date of the
registration statement. The securities so withdrawn shall also be withdrawn from
the registration statement.
5.4 Effectiveness and Expenses. The Corporation will use its best
efforts through its officers, directors, auditors and counsel to cause any
registration statement filed pursuant to this Section 5 to become effective as
promptly as practicable. The Corporation shall be obligated to use its best
efforts to maintain the effectiveness of such registration statement only until
the earlier of (i) the date on which the Registrable Shares may be sold (without
regard to volume limitations) under Rule 144 promulgated under the Act, and (ii)
the date on which no Registrable Shares remain outstanding (the "Registration
Termination Date"). The Corporation shall be obligated to pay all expenses
(other than the fees and disbursements of counsel for the Holders and
underwriting discounts, if any, payable in respect of the Registrable Shares
sold by the Holders) in connection with any such registration statement.
5.5 Blue Sky Registrations. In the event of a registration pursuant to
the provisions of this Section 5, the Corporation shall use its best efforts to
cause the Registrable Shares so registered to be registered or qualified for
sale under the securities or blue sky laws of such jurisdictions as the Holders
may reasonably request; provided, however, that the Corporation shall not be
required to qualify to do business in any state by reason of this Section 5.5 in
which it is not otherwise required to qualify to do business.
5.6 Continuing Effectiveness. Until the Registration Termination Date,
the Corporation shall use its best efforts to keep effective any registration or
qualification contemplated by this Section 5 and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document and communication for such period of
time as shall be required to permit the Holders to complete the offer and sale
of the Registrable Shares covered thereby.
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5.7 Copies of Registration Statement and Related Documents. In the
event of a registration pursuant to the provisions of this Section 5, the
Corporation shall furnish to each Holder a copy of the registration statement
and of each amendment and supplement thereto (in each case, including all
exhibits), and a reasonable number of copies of each prospectus contained in
such registration statement and each supplement or amendment thereto (including
each preliminary prospectus), all of which shall conform to the requirements of
the Act, and the rules and regulations thereunder, and such other documents, as
any Holder may reasonably request to facilitate the disposition of the
Registrable Shares included in such registration.
5.8 Rule 144 Eligibility. The Corporation agrees that until all the
Registrable Shares have been sold under a registration statement or pursuant to
Rule 144 under the Act, the Corporation shall use its best efforts to keep
current in filing all reports, statements and other materials required to be
filed with the Commission to permit holders of the Registrable Shares to sell
such securities under Rule 144.
6. Indemnity.
6.1 Corporation Indemnification of the Holders. Subject to the
conditions set forth below, the Corporation agrees to indemnify and hold
harmless each Holder, its officers, directors, partners, employees, agents and
counsel, if any, and each person, if any, who controls any such person within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), if any, from and against any and
all loss, liability, charge, claim, damage and expense whatsoever (which shall
include, for all purposes of this Section 6, without limitation, attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any registration statement, preliminary prospectus or final
prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, relating to the sale of any of the Registrable Shares, filed
with the Commission or any securities exchange; or any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was made in reliance upon and in conformity with written information furnished
to the Corporation with respect to such Holder by or on behalf of such person
expressly for inclusion in any registration statement, preliminary prospectus,
or final prospectus, or any amendment or supplement thereto, as the case may be.
The foregoing agreement to indemnify shall be in addition to any liability the
Corporation may otherwise have, including liabilities arising under this
Agreement.
If any action is brought against any Holder or any of its officers,
directors, partners, employees, agents or counsel, or any controlling persons of
such person (an "Indemnified Party") in respect of which indemnity may be sought
against the Corporation pursuant to the foregoing paragraph, such Indemnified
Party or Parties shall promptly notify the Corporation in writing of the
institution of such action (but the failure so to notify shall not relieve the
Corporation from any liability other than pursuant to this Section 6.1) and the
Corporation shall promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such Indemnified Party or
Parties) and payment of expenses. Such Indemnified
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Party or Parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless the employment of such counsel shall
have been authorized in writing by the Corporation in connection with the
defense of such action or the Corporation shall not have promptly employed
counsel reasonably satisfactory to such Indemnified Party or Parties to have
charge of the defense of such action or such Indemnified Party or Parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other Indemnified Parties which are different from or
additional to those available to the Corporation, in any of which events such
fees and expenses shall be borne by the Corporation, and the Corporation shall
not have the right to direct the defense of such action on behalf of the
Indemnified Party or Parties. Anything in this Section 6 to the contrary
notwithstanding, the Corporation shall not be liable for any settlement of any
such claim or action effected without its written consent, which shall not be
unreasonably withheld. The Corporation shall not, without the prior written
consent of each Indemnified Party that is not released as described in this
sentence, settle or compromise any action, or permit a default or consent to the
entry of judgment in or otherwise seek to terminate any pending or threatened
action, in respect of which indemnity may be sought hereunder (whether or not
any Indemnified Party is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Party from all liability in respect of such action. The Corporation agrees
promptly to notify the Holders of the commencement of any litigation or
proceedings against the Corporation or any of its officers or directors in
connection with the sale of any Registrable Shares or any preliminary
prospectus, prospectus, registration statement or amendment or supplement
thereto, or any application relating to any sale of any Registrable Shares.
6.2 Holder Indemnification of the Corporation. Each Holder
participating in any such registration shall indemnify and hold harmless the
Corporation, each director of the Corporation, each officer of the Corporation
who shall have signed the registration statement covering Registrable Shares
held by the Holder, each other person, if any, who controls the Corporation
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, and its or their respective counsel, to the same extent as the foregoing
indemnity from the Corporation to the Holders in Section 6.1, but only with
respect to statements or omissions, if any, made in any registration statement,
preliminary prospectus or final prospectus (as from time to time amended and
supplemented), or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished to the Corporation with respect to such
Holder by or on behalf of such Holder expressly for inclusion in any such
registration statement, preliminary prospectus or final prospectus, or any
amendment or supplement thereto, as the case may be. If any action shall be
brought against the Corporation or any other person so indemnified based on any
such registration statement, preliminary prospectus or final prospectus, or any
amendment or supplement thereto, or in any application, and in respect of which
indemnity may be sought against such Holder pursuant to this Section 6.2, such
Holder shall have the rights and duties given to the Corporation and the
Corporation and each other person so indemnified shall have the rights and
duties given to the Indemnified Parties, by the provisions of Section 6.1.
6.3 Contribution. To provide for just and equitable contribution, if
(i) an Indemnified Party makes a claim for indemnification pursuant to Section
6.1 or 6.2 but it is found in a final judicial determination, not subject to
further appeal, that such indemnification may not be enforced in such case, even
though this Agreement expressly provides for indemnification in
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such case, or (ii) any Indemnified Party or indemnifying party seeks
contribution under the Act, the Exchange Act or otherwise, then the Corporation
(including for this purpose any contribution made by or on behalf of any
director of the Corporation, any officer of the Corporation who signed any such
registration statement, any controlling person of the Corporation, and its or
their respective counsel), as one entity, and the Holders of the Registrable
Shares included in such registration in the aggregate (including for this
purpose any contribution by or on behalf of an Indemnified Party), as a second
entity, shall contribute to the losses, liabilities, claims, damages and
expenses whatsoever to which any of them may be subject, on the basis of
relevant equitable considerations such as the relative fault of the Corporation
and such Holders in connection with the facts which resulted in such losses,
liabilities, claims, damages and expenses. The relative fault, in the case of an
untrue statement, alleged untrue statement, omission or alleged omission, shall
be determined by, among other things, whether such statement, alleged statement,
omission or alleged omission relates to information supplied by the Corporation
or by such Holders, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement, alleged
statement, omission or alleged omission. The Corporation and the Holder agree
that it would be unjust and inequitable if the respective obligations of the
Corporation and the Holders for the contribution were determined by pro rata or
per capita allocation of the aggregate losses, liabilities, claims, damages and
expenses (even if the Holder and the other Indemnified Parties were treated as
one entity for such purpose) or by any other method of allocation that does not
reflect the equitable considerations, referred to in this Section 6.3. In no
case shall any Holder be responsible for a portion of the contribution
obligation imposed on all Holders in excess of its pro rata share based on the
number of Registrable Shares owned by it and included in such registration as
compared to the number of Registrable Shares owned by all Holders and included
in such registration. No person guilty of a fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation. For purposes
of this Section 6.3, each person, if any, who controls any Holder within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
officer, director, partner, employee, agent and counsel of each such Holder or
control person shall have the same rights to contribution as such Holder or
control person and each person, if any, who controls the Corporation within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Corporation who shall have signed any such registration
statement, each director of the Corporation and its or their respective counsel
shall have the same right to contribution as the Corporation, subject in each
case to the provisions of this Section 6.3. Anything in this Section 6.3 to the
contrary notwithstanding, no party shall be liable for contribution with respect
to the settlement of any claim or action effected without its written consent.
This Section 6.3 is intended to supersede any right to contribution under the
Act, the Exchange Act or otherwise.
7. Miscellaneous.
7.1 Notices. All notices, requests, demands or other communications
provided for in this Agreement shall be in writing and shall be delivered by
hand, sent prepaid by Federal Express (or a comparable overnight delivery
service) or sent by the United States mail, certified, postage prepaid, return
receipt request, to the following:
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If to the Corporation:
MAXIMUS, Inc.
0000 Xxxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
If to the Executive:
Xx. Xxxxxxxx Xxxxxxx
Carrera Consulting Group
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Any notice, request, demand or other communication delivered or sent in the
foregoing manner shall be deemed given or made (as the case may be) upon the
earliest of (i) the date it is actually received, (ii) the business-day after
the day on which it is delivered by hand, (iii) the business day after the day
on which it is properly delivered to Federal Express (or a comparable overnight
delivery service), or (iv) the third business day after the date on which it is
deposited in the United States mail. Either party may change its address by
notifying the other party of the new address in any manner permitted by this
paragraph. Rejection or other refusal to accept or the inability to deliver
because of a changed address of which no notice was given shall not affect the
date of such notice, election or demand sent in accordance with the foregoing
provisions.
7.2 Remedies. The parties hereto further agree and acknowledge that any
violation by the Executive of the terms hereof may result in irreparable injury
and damage to the Corporation or its clients, which will not adequately be
compensable in monetary damages, that the Corporation will have no adequate
remedy at law therefor, and that the Corporation may obtain such preliminary,
temporary or permanent mandatory or restraining injunctions, orders or decrees
as may be necessary to protect it against, or on account of, any breach of the
provisions contained in this Agreement.
7.3 No Obligation of Continued Employment After Termination of Section
1. Except as set forth in Section 1 hereof, the Executive understands that this
Agreement does not constitute a contract of employment or create an obligation
on the part of the Corporation to continue the Executive's employment with the
Corporation.
7.4 Benefit; Assignment. This Agreement shall bind and inure to the
benefit of the parties and their respective personal representatives, heirs,
successors and assigns, provided this Agreement may not be assigned by either
party without the consent of the other, except that the Corporation may assign
this Agreement in connection with the merger, consolidation or sale of all or
substantially all of its business or assets. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and other legal representatives and, to the extent that any
assignment hereof is permitted hereunder, their assignees.
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7.5 Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, with respect to the subject matter of this Agreement.
7.6 Severability. In the event that any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and all other
provisions shall remain in full force and effect. If any of the provisions of
this Agreement is held to be excessively broad, it shall be reformed and
construed by limiting and reducing it so as to be enforceable to the maximum
extent permitted by law.
7.7 Waivers. No delay or omission by the Corporation in exercising any
right under this Agreement will operate as a waiver of that or any other right.
A waiver or consent given by the Corporation on any occasion if effective only
in that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
7.8 Captions. The captions of the various sections and paragraphs of
this Agreement have been inserted only for the purpose of convenience; such
captions are not a part of this Agreement and shall not be deemed in any manner
to modify, explain, enlarge or restrict any of the provisions of this Agreement.
7.9 Governing Law. This Agreement shall be construed as a sealed
instrument and shall in all events and for all purposes be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia without
regard to any choice of law principle that would dictate the application of the
laws of another jurisdiction. Any action, suit or other legal proceeding which
the Executive may commence to resolve any matter arising under or relating to
any provision of this Agreement shall be commenced only in a court of the
Commonwealth of Virginia (or, if appropriate, a federal court located within
Virginia). Any action, suit or other legal proceeding which the Corporation may
commence to resolve any matter arising under or relating to any provision of
this Agreement shall be commenced only in a court of the State of California
(or, if appropriate, a federal court located within California). The Section
headings are included solely for convenience and shall in no event affect or be
used in connection with, the interpretation of this Agreement.
THE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE
EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE
UNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT
EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH
THE CORPORATION.
7.10 Amendments. No alterations or additions to this Agreement shall be
binding unless in writing and signed by both the parties.
7.11 Genders. Whenever reasonably necessary, pronouns of any gender
shall be deemed synonymous, as shall singular and plural pronouns.
7.12 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
/s/ XXXXXXXX XXXXXXX
----------------------------------------
Xxxxxxxx Xxxxxxx
MAXIMUS, INC.
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Xxxxx X. Xxxxxxx
President
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