EXHIBIT 10.1
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AMENDED AND RESTATED AS OF DECEMBER 7, 2005
ANTEON INTERNATIONAL CORPORATION
AMENDED AND RESTATED EXECUTIVE AGREEMENT
THIS AGREEMENT is an amendment and restatement, made as of the date
above written, of an agreement originally made as of January 1, 2004, as amended
on June 21, 2004 by and between Anteon International Corporation ("Anteon" and,
together with its subsidiaries and divisions, the "Company") and the key officer
of the Company whose name appears on the signature page hereof (the "Executive).
1. INTRODUCTION. Anteon's philosophy is to provide to its officers and key
executives a compensation program that it considers to be among the very best in
its industry and therefore desires to make the benefits provided for in this
agreement available to the Executive as part of his or her compensation package.
2. DEFINITIONS
2.1 "Agreement" means this agreement between Anteon and the
Executive, as amended and restated on December 7, 2005.
2.2 "Anteon" means Anteon International Corporation or any successor
to substantially all of the business and operations of Anteon
International Corporation.
2.3 "Board" means the Board of Directors of Anteon.
2.4 "Bonus Opportunity" means the percentage of Salary that is the
target bonus for the relevant year, as established by the Board.
2.5 "Cause" means the Executive's (i) conviction of, or pleading of
nolo contendere to, a felony level criminal violation, or the
commission of any act of dishonesty, disloyalty, misconduct or moral
turpitude that is injurious to the property, operations, business or
reputation of the Company, or (ii) material misconduct or failure to
perform
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his or her duties in a reasonably satisfactory manner after the receipt
of a notice from the Company detailing such misconduct or failure, if
the misconduct or failure is capable of cure, and the subsequent
failure by the Executive to cure such misconduct or failure within
thirty (30) days of receipt of such notice.
2.6 "Change in Control" means:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50%
or more of the combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally
in the election of directors (the "Outstanding Corporation
Voting Securities"); PROVIDED, HOWEVER, that for purposes of
this Agreement, the following acquisitions shall not constitute
a Change in Control: (I) any acquisition by the Corporation or
any affiliate thereof, (II) any acquisition by any employee
benefit plan sponsored or maintained by the Corporation or any
affiliate thereof, or (III) any acquisition which complies with
clauses (A), (B) and (C) of subsection (v) of this Section 2.6;
(ii) Individuals who, on the date hereof, constitute the
Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date hereof, whose
election or nomination for election was approved by a vote of at
least two-thirds of the Incumbent Directors then on the Board
(either by a specific vote or by approval of the proxy statement
of the Corporation in which such person is named as a nominee
for director, without written objection to such nomination)
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shall be an Incumbent Director; PROVIDED, HOWEVER, that no
individual initially elected or nominated as a director of the
Corporation as a result of an actual or threatened election
contest with respect to directors or as a result of any other
actual or threatened solicitation of proxies or consents by or
on behalf of any person other than the Board shall be deemed to
be an Incumbent Director;
(iii) approval by the shareholders of the Corporation of the
dissolution or liquidation of the Corporation;
(iv) the sale of all or substantially all of the business or
assets of the Corporation to any Person (other than a transfer
to a subsidiary); or
(v) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction
involving the Corporation that requires the approval of the
Corporation's stockholders, whether for such transaction or the
issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business
Combination: (A) more than 50% of the total voting power of (x)
the corporation resulting from such Business Combination (the
"Surviving Corporation"), or (y) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial
ownership of sufficient voting securities eligible to elect a
majority of the directors of the Surviving Corporation (the
"Parent Corporation"), is represented by the Outstanding
Corporation Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is
represented by shares into which the Outstanding Corporation
Voting Securities were converted pursuant to such
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Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting
power of the Corporation's Voting Securities among the holders
thereof immediately prior to the Business Combination, (B) no
Person (other than any employee benefit plan sponsored or
maintained by the Surviving Corporation or the Parent
Corporation , is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation)
following the consummation of the Business Combination were
Board members at the time of the Board's approval of the
execution of the initial agreement providing for such Business
Combination.
2.7 "Committee" means the Compensation Committee appointed by the
Board or if there is no such committee, then the Board.
2.8 "Company" means Anteon International Corporation and its
subsidiaries, or any successor to substantially all of the business and
operations of Anteon International Corporation and its subsidiaries.
2.9 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
2.10 "Executive" means the individual identified on the signature
page of this Agreement.
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2.11 "Extended Compensation Payment" means all amounts, if any,
payable under Section 3 and Exhibit A of this Agreement to the Covered
Employee upon a termination without Cause or a resignation for Good
Reason.
2.12 "Good Reason" means the Executive's resignation from all
employment and service with the Company within 90 days after the
occurrence of one or more of the following:
(i) a reduction in his or her Salary or Bonus Opportunity
from that of the prior year, or a reduction in Salary or Bonus
Opportunity already established for a given year (it being
understood that any bonus payments will be subject to
performance and/or service goals as the Board may prescribe),
(ii) a material diminution in the Executive's duties or
responsibilities (but a change in the Executive's reporting
relationships or reporting responsibilities within the Company
or within any successor to substantially all of the Company'
business and operations shall not itself constitute "Good
Reason").
(iii) the Company requires the Executive to be based at any
place outside a 50 mile radius from the work location at which
the Executive was based on the date of the Change in Control,
(iv) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy of the Company;
(v) any material breach by the Company of any provision
of this Agreement
(vi) any purported termination of the Executive's employment
for Cause by the Company which does not comply with the terms of
Section 2.5 hereof,
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(vii) any event or condition described in Section 2.13(i)
through (vi) which occurs prior to a Change in Control but which
the Executive reasonably demonstrates (a) was at the request of
a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control, or (b)
otherwise arose in connection with a Change in Control.
Notwithstanding anything in this Section 2.12, the Executive may not
resign for "Good Reason" unless he or she shall have first given notice
to Anteon of the reason for such resignation, and Anteon or the Company
shall have failed to reasonably cure the situation within thirty (30)
days of receipt of such notice.
2.13 "Release" means a written release, in the form as attached
hereto, executed by the Executive who has been granted an Extended
Compensation Payment, releasing and discharging the Company, its
trustees, officers, directors, employees, advisers, consultants,
shareholders, agents and other representatives (including, but not
limited to, the members of the Committee) from and against all claims,
liabilities and obligations in respect of or arising out of the
Executive's employment, and/or any termination of or resignation
therefrom, including but not limited to, claims under the Age
Discrimination in Employment Act of 1967, as amended.
2.14 "Salary" means the annual rate of base salary of the Executive
(prior to any reduction for the Executive's contributions to any
employee benefit, deferred compensation, retirement or other plan or
arrangement maintained or administered by the Company) as in effect
immediately prior to any without Cause termination or resignation for
Good Reason. "Monthly Salary" shall be determined by dividing the rate
referred to in the preceding sentence by 12.
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2.15 "Service" means the Executive's last continuous period of
employment and service with the Company.
2.16 "Term" of this Agreement means the period commencing on the date
first written above and ending on December 31, 2004 and shall be
automatically extended on each December 31 thereafter unless either
Anteon or the Executive gives written notice at least 30 days prior to
the relevant December 31 that either Anteon or the Executive, as the
case may be, elects not to have this Agreement continue beyond its then
scheduled expiration date.
2.17 "Termination of Employment" means the Executive's termination of
employment with and separation of service from the Company.
3. GRANTS AND AMOUNTS OF PROTECTION PAYMENTS
3.1 If during the Term of this Agreement a Change in Control of the
Company shall occur and during the two year period following the date
of such Change in Control (a) the Company shall terminate the
Executive's employment without Cause, or (b) the Executive shall resign
for Good Reason, then the Executive will receive an Extended
Compensation Payment equal to the following:
3.1.1 ACCRUED SALARY. Within 15 days of termination without
Cause or resignation for Good Reason, the Executive will receive
all accrued but unpaid Salary through the date of termination.
3.1.2 SALARY-RELATED PORTION OF EXTENDED COMPENSATION PAYMENT.
Within 15 days after the date of Executive's termination of
employment by the Company without Cause or resignation by
Executive for Good Reason, the Company will pay Executive a
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single, lump-sum cash payment equal to the product of (a)
Executive's Monthly Salary, and (b) the number of months in the
period set forth in Exhibit A to the Agreement.
3.1.3 ACCRUED BONUSES. The Executive will receive payment of
his or her bonus entitlement for the year in which either the
without Cause termination or resignation for Good Reason occurs,
which would otherwise have been paid had the Executive remained
employed by Anteon through the end of such year (and without
regard to any otherwise applicable requirements that the
Executive remain employed by the Company until the regular bonus
payment date in the following year). Such bonus shall be payable
to the Executive within fifteen (15) days after the date of the
without Cause termination or resignation for Good Reason. In
addition, if at the time of termination without Cause or
resignation for Good Reason the annual bonus for the prior year
has not been paid, such bonus will be paid when it otherwise
would have been due to the extent earned (determined without
regard to any otherwise applicable requirement that the
Executive remain employed by the Company until the regular bonus
payment date in the following year).
3.1.4 BONUS-RELATED PORTION OF EXTENDED COMPENSATION PAYMENT.
Within 15 days after the date of Executive's termination of
employment by the Company without Cause or resignation by
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Executive for Good Reason, the Company will pay Executive a
single, lump-sum cash payment equal to the product of (a) the
number of months in the period set forth on Exhibit A, and (b)
one-twelfth of Executive's "annual target bonus", which, for
purposes of this Section 3.1.4 shall mean an amount equal to one
hundred percent (100%) of Executive's bonus established for the
year in which either the without Cause termination or
resignation for Good Reason occurs, and if no target bonus was
established for such year, 100% of the target bonus established
for the prior year.
3.1.5 ACCRUED GENERAL LEAVE. Within 15 days of termination
without Cause or resignation for Good Reason, the Executive will
receive a payment for all accrued but unused General Leave
through the date of termination.
3.1.6 MEDICAL/DENTAL INSURANCE. Medical/dental insurance
coverage for the Executive and his or her eligible dependents is
to be continued under the plan in effect on the date of the
without Cause termination or resignation for Good Reason, as
modified from time to time for similarly situated active
executives. The Company will pay its normal share of the
coverage rate for a period as set forth on Exhibit A, or until
such time as the Executive is covered by the medical/dental
insurance of another employer, whichever occurs first. The
Executive may continue medical/dental insurance through COBRA
for up to an additional eighteen months
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by paying the required premiums monthly in advance to the
Company, as provided by and subject to COBRA.
3.1.7 LIFE INSURANCE. If the Executive is being provided basic
life insurance coverage at the time of separation, such basic
life insurance coverage shall continue in accordance with
Anteon's policies on life insurance coverage as may be in effect
from time to time, for the period set forth on Exhibit A, or, if
earlier, until such time as (x) the Executive is eligible for
coverage by the life insurance of another employer or (y) Anteon
ceases to provide its similarly situated executives with basic
life insurance coverage, whichever occurs first.
3.1.8 RETIREMENT PLANS. Benefits accrued through the
termination date are governed by the provisions of the
applicable "qualified retirement plan" and supplemental
retirement savings plan documents.
3.2 Notwithstanding anything to the contrary in this Agreement,
under no circumstances may the Executive receive any Extended
Compensation Payment under the terms of this Agreement unless the
Committee has received from the Executive an executed Release, in the
form attached hereto, that has remained unrevoked for at least eight
(8) days (or such longer time as Employee may have a right to terminate
such Release under applicable law). In addition, if the Executive
violates any of the provisions of Section 5 of this Agreement: (i)
Executive shall promptly repay to the Company the "Unearned Portion" of
the Extended Compensation Payment, and (ii) the Company may immediately
cease the payment of the medical, dental and life insurance portion of
the Extended Compensation Payment. The Unearned Portion of the Extended
Compensation
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Payment shall be equal to the total amount of the Extended Compensation
Payment multiplied by a fraction, the denominator of which shall be
equal to the number of months used to calculate the Extended
Compensation Payment as set forth in Exhibit A, and the numerator of
which shall be a quantity equal to the denominator less the number of
complete and partial months elapsed between the termination of
employment and the violation by Executive of Section 5 of this
Agreement.
3.3 Except as provided in Section 3.4, the Executive shall have no
benefits under this Agreement in the event the Executive is terminated
with Cause or terminates employment other than for Good Reason.
3.4 Notwithstanding anything to the contrary in this Agreement, if
the Executive's employment terminates for any reason (including
resignation for Good Reason) following a Change of Control: (i) the
Company hereby waives any requirement that would otherwise bind the
Executive (whether pursuant to this Agreement, Section 4.4 of Anteon's
standard form of Stock Option Grant Agreement or otherwise) that
Executive must follow the corporate policies of the Company after
termination; and (ii) the Company hereby waives any right it would
otherwise have under Section 4.4 of Anteon's standard form of Stock
Option Grant Agreement to terminate the stock option and/or to recover
the amount of any option gain realized by the Executive on account of
the Executive's providing services to a company whose annual revenues
for the most recently completed fiscal year are less than One Billion
Dollars ($1,000,000,000) (which termination and/or recovery are
provided for in said Section 4.4 under certain circumstances).
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4. ADMINISTRATION
4.1 Subject to Section 6.6 hereof, the Committee shall be the
administrator of this Agreement, and shall have such rights, powers and
authorities commensurate with such position. Such powers shall include,
without limitation, the discretion to reasonably interpret the
provisions of this Agreement, as well as the discretion to resolve any
conflicts or questions arising therefrom.
5. OBLIGATIONS OF THE EXECUTIVE
5.1 NON-SOLICITATION. The Company has invested substantial time,
money and resources in the development and retention of its inventions,
confidential information (including trade secrets), customers, accounts
and business partners, and during and prior to the course of the
Executive's employment with the Company, the Executive has had and will
have access to the Company's inventions, confidential information
(including, but not limited to, employee compensation data, cost and
pricing data and other trade secrets) and contractual relationships,
and will be introduced to existing and prospective customers, vendors,
accounts and business partners of the Company. Any and all "goodwill"
associated with any existing or prospective customer, vendor, account
or business partner belongs exclusively to the Company, including, but
not limited to, any goodwill created as a result of direct or indirect
contacts or relationships between the Executive and any existing or
prospective customers, vendors, cable operators, accounts or business
partners.
In recognition of this, and in partial consideration for the
Company entering into this Agreement with the Executive, the Executive shall be
obligated to comply with the
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following provisions if the Executive becomes entitled to any Extended
Compensation Payment under this Agreement:
(A) During the Executive's employment with the Company, and
for a period of one (1) year thereafter, the Executive
may not entice or solicit, either directly or
indirectly, any Company management employee to leave the
employ of the Company or any independent contractor to
sever its engagement with the Company, absent prior
written consent from the Company. The preceding sentence
of this subparagraph (A) shall not be construed to
prohibit the Executive from hiring, directly or
indirectly, a Company employee provided such employee
contacted or solicited employment from the Executive on
his or her own initiative and without any encouragement,
influence or inducement from the Executive.
(B) During the Executive's employment with the Company, and
for a period of one (1) year thereafter, the Executive
may not, directly or indirectly, entice, solicit or
encourage any customer to cease doing business with the
Company or reduce its relationship with the Company in
respect of any work covered by a contract (including,
without limitation, contract task orders and delivery
orders) to which the Company was a party during the one
year period prior to the termination of Executive's
employment.
5.2 NON-DISPARAGEMENT; NONDISCLOSURE
(A) The Executive agrees not to make any public statement,
or engage in any conduct, that is disparaging to the
Company, or any of its employees, officers, directors,
or shareholders, including, but not limited to, any
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statement that disparages the products, services,
finances, financial condition, capabilities or other
aspect of the business of the Company. Notwithstanding
any term to the contrary herein, the Executive shall not
be in breach of this Section 5.2 for the making of any
truthful statements under oath.
(B) The Executive agrees not to directly or indirectly
disclose, discuss, disseminate, be the source of or
otherwise publish or communicate in any manner to any
person or entity any confidential information concerning
the personal, social or business activities of the
Company or its controlling persons, or the executives,
principals, officers, directors, agents or employees of
any of the foregoing during or at any time after the
termination of the Executive's employment. In addition,
the Executive agrees that, without the Company's express
written approval in each case, the Executive will not
for a period of five (5) years following the Executive's
Termination of Employment:
(i) write, be the source of or contribute to any
articles, stories, books, screenplays or any
other communication or publicity of any kind
(written or otherwise) or deliver lectures in
any way regarding or concerning information
designated or treated by the Company as
confidential , or
(ii) grant any interviews regarding or concerning
information designated or treated by the Company
as confidential.
5.3 PROVISIONS NECESSARY AND REASONABLE
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(A) The Executive agrees that:
(i) the specific temporal and substantive provisions
set forth in Section 5.1 of this Agreement are
reasonable and necessary to protect the
Company's business interests; and
(ii) in the event of any breach of any of the
covenants set forth in Sections 5.1 and 5.2
herein, the Company would suffer substantial
irreparable harm and would not have an adequate
remedy at law for such breach.
In recognition of the foregoing, the Executive
agrees that, in the event of a breach or
threatened breach of any of these covenants, in
addition to such remedies as the Company may
have at law, without posting any bond or
security, Anteon shall be entitled to recover
the Unearned Portion of any Extended
Compensation Payment made pursuant to Section 3
of this Agreement (calculated as provided in
Section 3.2 hereof), and the Company further
shall be entitled to seek and obtain equitable
relief, in the form of specific performance,
and/or temporary, preliminary or permanent
injunctive relief, or any other equitable remedy
which then may be available. The seeking of such
injunction or order shall not affect the
Company's right to seek and obtain damages or
other equitable relief on account of any such
actual or threatened breach.
(B) If any of the covenants contained in Sections 5.1 or 5.2
hereof, or any part thereof, are hereafter construed to
be invalid or unenforceable, the same
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shall not affect the remainder of the covenant or
covenants, which shall be given full effect without
regard to the invalid portions.
(C) If any of the covenants contained in Sections 5.1 or 5.2
hereof, or any part thereof, are held to be
unenforceable by a court of competent jurisdiction
because of the temporal or geographic scope of such
provision or the area covered thereby, the parties agree
that the court making such determination shall have the
power to reduce the duration and/or geographic area of
such provision and, in its reduced form, such provision
shall be enforceable.
6. EXCISE TAXES
a. Anything in this Agreement to the contrary notwithstanding, and
except as set forth below, if, prior to application of this
Section 6, Executive becomes entitled to severance payments or
benefits under this Agreement, or any other payment or benefit
under this or any other agreement with or plan of the Company,
by reason of a Change in Control, which amounts are deemed to be
"parachute payments" within the meaning of Section 280G of the
Code (in the aggregate, the "Total Payments"), and if any of the
Total Payments will be subject to the tax imposed by Section
4999 of the Code (the "Excise Tax") or any similar tax that may
hereafter be imposed, then Company shall pay the Executive an
additional payment (a "Gross-Up Payment") in an amount such
that, after payment by Executive of all Federal, state and local
income taxes (including FICA and FUTA) and Excise Tax imposed
upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the
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Total Payments. Notwithstanding the foregoing, no Gross-Up
Payment shall be paid hereunder if the amount by which the Total
Payments are required to be reduced in order to avoid
application of the Excise Tax is less than fifty thousand
dollars ($50,000). In such event, the Total Payments shall be
reduced to the extent necessary to avoid application of the
Excise Tax and no Gross-Up Payment shall be made.
b. Subject to the provisions of paragraph "d", all determinations
required to be made under this Section 6, including whether a
Gross-Up Payment or reduction in Total Payments is required, the
amount of any such Gross-Up Payment or reduction, and the
assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized public accounting firm
selected by the Company and reasonably acceptable to the
Executive (the "Accounting Firm"). The Accounting Firm shall be
retained to provide a written opinion both to the Company and
Executive within 15 business days of the Executive's
termination, or such earlier time as is requested by the Company
or the Executive. All fees and expenses of the Accounting Firm
shall be borne solely by the Company. If the Accounting Firm
determines that Total Payments shall be reduced, within ten days
of the delivery of the determination to the Executive, the
Executive will have the right to dispute the determination (the
"Dispute") in accordance with Section 6.6 hereof. The Gross-Up
Payment, if any, will be paid by the Company to the Executive
within five days of the receipt of the Accounting Firm's
determination indicating that a Gross-Up Payment is required. If
there is no Dispute, the determination will be binding, final
and conclusive upon the Company and the
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Executive, subject to the Executive receiving notice from any
governmental taxing authority that the Executive's tax liability
in respect of the Payment or the Gross-Up Payment is greater or
less than the amount determined by the Accounting Firm.
c. The Company's obligations under this paragraph (c) are subject
to and conditioned on the Executive filing and paying Excise
Taxes on a basis consistent with the determination of the
Accounting Firm. Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a
Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive
is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such
claim is requested to be paid or appealed. Executive shall not
pay such claim prior to the expiration of the 15-day period
following the date on which the Executive gives such notice to
the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive
shall:
(a) give the Company any information reasonably requested by
the Company relating to such claim,
(b) take such action in connection with contesting such
claims as the Company shall reasonably request in
writing from time to time, including,
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without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected
by the Company,
(c) cooperate with the Company in good faith in order to
effectively contest such claim, and
(d) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this paragraph "c",
the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct Executive to pay the
tax claimed and xxx for a refund or to contest the claim in any
permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to
Executive, on an interest-free basis, and shall indemnify and
hold Executive harmless, on an after-tax basis, from any
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Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of
Executive with respect to which such contested amount is claimed
to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would
be payable hereunder, and Executive shall be entitled to settle
or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority. If the
Company does not contest the Service's claim, or does not follow
the procedures set forth above to contest such claim, the
Company shall make a Gross-Up Payment assuming the Service's
claim is correct.
d. If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding (a "Final
Determination") that, notwithstanding the good faith of
Executive and the Company in applying the terms of this
Agreement, the amount of Excise Tax payable by Executive is
greater than the amount determined under paragraph b above, such
that Executive did not receive the entire Excise Tax
equalization payment contemplated by paragraph "a", the Company
shall promptly reimburse Executive for the full amount necessary
to make Executive whole, together with interest on such amount
at the applicable Federal rate (as defined in Section 1274(d) of
the Code) from the original payment due date to the date of
actual payment by the Company. Alternatively, if the actual
amount of any Excise Tax paid by Executive is less than the
amount
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of the Excise Tax calculated under paragraph "b" and paid by the
Company to Executive, Executive shall have an obligation to
repay the difference to the Company on demand, together with
interest on such amount at the applicable Federal rate (as
defined in Section 1274(d) of the Code) from the date of the
payment hereunder to the date of repayment by Executive.
Executive shall provide to the Company such proof of payment of
the Excise Tax as the Company shall reasonably request in
writing.
7. MISCELLANEOUS
7.1 Any modification of or amendment to this Agreement shall not be
effective unless in writing and signed by the parties hereto.
7.2 Neither the entering into of this Agreement nor any designation
or award of any Extended Compensation Payment hereunder shall be held
or construed to confer upon the Executive any legal right to continued
employment with the Company. The Company expressly reserves the right
to discharge the Executive whenever the interest of the Company, in its
sole judgment, may so require, without any liability on the part of the
Company, its directors, officers, employees, advisers, consultants,
shareholders, agents or other representatives (including, but not
limited to, the members of the Committee), or their respective heirs
and legal representatives except for the liabilities expressly set
forth in this Agreement.
7.3 Benefits payable under this Agreement shall be subject to
federal and state income tax and social security tax withholdings and
any other withholdings mandated by law and shall be paid out of the
general assets of Anteon, and are not required to be funded in any
manner, although Anteon in its discretion may set aside amounts in
respect
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of, or fund, benefits payable hereunder. Benefits payable to the
Executive will represent an unsecured claim by the Executive against
the general assets of Anteon.
7.4 Except to the extent required by law, benefits payable under
this Agreement shall not be subject to assignment, alienation,
transfer, pledge, levy, attachment, or other legal process or
encumbrance by the Executive and any attempt to do so shall be void.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, personal
representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the
immediately preceding sentence, the Employee may not assign all or any
portion of this Agreement without the prior written consent of the
Company.
7.5 This Agreement shall supersede any and all prior agreements
regarding the subject matter hereof, and shall be interpreted and
applied in accordance with the laws of the Commonwealth of Virginia
(without reference to the rules relating to conflicts of laws), except
to the extent superseded by applicable federal laws. Every notice
relating to this Agreement shall be in writing and shall be deemed
given upon receipt if sent by personal delivery, recognized overnight
courier or by certified mail, postage prepaid, return receipt
requested, sent to the principal office of the Company, if to the
Company, or to the address of the Executive on the records of the
Company, if to the Executive (or to such other address as either party
may designate in writing to the other party).
7.6 All disputes under this Agreement shall be resolved under the
then-current National Rules for the Resolution of Employment Disputes
of the American Arbitration Association. The arbitration shall be
before a single arbitrator appointed according to said rules and shall
take place in Fairfax, VA if the Executive was employed in Virginia
23
on the day before the Change in Control, or within (15) miles of the
limits of the municipality in which the Executive was employed on the
day before the Change in Control , if the Executive was employed on
such date in any other state. The arbitrator shall have no authority to
add to, subtract from, amend, revise, enlarge or disregard any of the
provisions of this Agreement. The arbitrator's award shall be final and
binding upon all parties and judgment upon said award may be enforced
in any court of competent jurisdiction.
7.6 This Agreement replaces and supersedes any other severance
policy or similar plan or arrangement in effect prior to the date
listed above with respect to the Executive.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
ANTEON INTERNATIONAL CORPORATION
By: /s/
----------------------------------
Signature:
--------------------------
Printed Name:
--------------------------
25
Exhibit A
---------
NAME OF EXECUTIVE
Extended Compensation Payment: A lump sum to be determined with reference to
hypothetical salary continuation and bonus continuation for a period of 24
months, as calculated in accordance with Sections 3.1.2 and 3.1.4. In addition,
Medical/Dental and Life Insurance shall continue for 24 months.
26
RELEASE
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Introduction
Various federal, state and local laws and regulations prohibit
employment discrimination based upon, among other things, age, sex, race, color,
national origin, religion, disability and/or veteran status. These
anti-discrimination laws and regulations are enforced through the United States
Equal Employment Opportunity Commission, the United States Department of Labor,
and various state and local fair employment practices agencies. Other laws and
regulations prohibit employers from terminating employees tortiously or
wrongfully, in breach of express or implied covenants of good faith and fair
dealing, in violation of public policy, or in such a manner as to negligently or
intentionally inflict emotional distress. In other situations, employees may
have claims against an employer for fraud, misrepresentation or defamation.
Eligibility for the Extended Compensation Payment under the terms
outlined in your agreement with Anteon International Corporation (the
"Agreement") is contingent upon your signature and delivery of this Release to
Anteon Corporation (the "Anteon", which, together with its subsidiaries and
affiliates, shall be referred to herein as the "Company"). IF YOU DO NOT SIGN
THE RELEASE (OR IF YOU SUBSEQUENTLY REVOKE THE RELEASE), YOU WILL NOT BE
ENTITLED TO ANY EXTENDED COMPENSATION PAYMENT AWARDED UNDER THE AGREEMENT AND
WILL HAVE NO RIGHT TO ANY EXTENDED COMPENSATION PAYMENT AWARDED UNDER THE
AGREEMENT. If you breach the terms of your Release, Anteon will be entitled to
the return of any Extended Compensation Payment you have received and to
reimbursement by you of any counsel fees and expenses incurred by Anteon in
enforcing such right of return.
27
Under the terms of this Release, you waive any rights to bring claims
against the Company, and all is past and/or present directors, trustees,
officers, employees, affiliates, advisers, consultants, shareholders, agents and
other representatives (including, but not limited to, the members of the
Committee) with respect to employment or other work with Anteon and other
matters, except as specifically and expressly allowed by this Release. This is a
legally binding document. DO NOT SIGN THIS RELEASE UNLESS YOU THOROUGHLY
UNDERSTAND IT.
Release
Under the Agreement and subject to the terms thereof, in exchange for
the Extended Compensation Payment (less the amount necessary to satisfy
applicable withholding requirements (the "Benefit Amount")), I hereby
acknowledge that my employment with the Company has terminated as of
______________(1) and hereby release the Company and all its past and/or present
directors, trustees, officers, employees, stockholders, affiliates, advisers,
consultants, agents and other representatives (including, but not limited to,
the members of the Committee), successors and assigns, in their individual
and/or representative capacities (hereinafter together with the Company
collectively referred to as "Anteon Releasees"), from any and all causes of
action, suits, agreements, promises, damages, disputes, controversies,
contentions, differences, judgments, claims and demands of any kind whatsoever
("Claims") that I or my heirs, executors, administrators, successors and assigns
ever had, now have or may have against the Anteon Releasees, whether known or
unknown to me, by reason of my employment and/or cessation of employment with
the Company, or otherwise involving facts that occurred on
------------------------
(1) If no date is inserted, the date of your execution of this Release shall be
deemed to be the date of termination of employment.
28
or prior to the date that I have signed this Release other than a Claim that
Anteon has failed to pay me the Extended Compensation Payment in the amount
equal to the Benefit Amount, or so much thereof as shall be payable as provided
in the Agreement. Such released Claims include, without limitation, any and all
claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act of 1967, the Civil Rights Act of 1971, the Civil Rights Act of
1991, the Fair Labor Standards Act, the Employee Retirement Income Security Act
of 1974 ("ERISA"), the Americans with Disabilities Act, the Family and Medical
Leave Act of 1993, and any and all other federal, state or local laws, statutes,
rules and regulations pertaining to employment, as well as any and all Claims
under state contract or tort law.
I understand that my receipt of the Extended Compensation Payment will
in no way affect any receipt of retirement, savings, vacation, health care or
other benefits to which I am entitled as of my termination date under any plans,
policies or arrangements of the Company in which I am a participant or in
respect of which I am a beneficiary, except as otherwise provided in the
Agreement.
I understand and agree that I must not disclose the terms of this
Release to anyone other than my spouse, my legal counsel and accountants to the
extent necessary in order to obtain professional advice, that I must immediately
inform my spouse, legal counsel and accountants that they are also prohibited
from disclosing the terms of the Release, and that I must not make any
derogatory allegations about Anteon Releasees. I further agree to return to the
Company any property of the Anteon Releasees that I may have, no matter where
located, and not to keep any copies or portions thereof.
I represent that I have not filed, and will not hereafter file, any
Claim against Anteon Releasees relating to my employment and/or cessation of
employment with the
29
Company, or otherwise involving facts that occurred on or prior to the date that
I have signed this Release, other than a Claim that Anteon has failed to pay me
an Extended Compensation Payment in the amount equal to the Benefit Amount or so
much thereof as may be payable as provided in the Agreement.
I understand and agree that if I am made a member of a class in any
proceeding relating to a Claim against any Anteon Releasee, I will opt out of
the class at the first opportunity afforded to me after learning of my
inclusion. In this regard, I agree that I will execute, without objection or
delay, an "opt-out" form presented to me either by the court in which such
proceeding is pending or by counsel for any Anteon Releasee who is made a
defendant in any such proceeding.
I understand and agree that if I commence, continue, join in, or in any
other manner attempt to assert any Claim released herein against Anteon
Releasees, or otherwise violate the terms of this Release, Anteon shall have a
right to the return of all Extended Compensation Payments paid to me by Anteon
(together with interest thereon), and I shall reimburse Anteon for all counsel
fees and expenses incurred by it in defending against such a Claim, provided
that this right of return of such Extended Compensation Payments is without
prejudice to the Company's other rights hereunder, including any waiver and
release of any and all Claims against the Company.
I understand and agree that Anteon's payment of the Extended
Compensation Payment to me and my signing of this Release do not in any way
indicate that I have any viable Claims against the Anteon Releasees or that the
Anteon Releasees admit any liability to me whatsoever.
30
I have read this Release carefully, have been given at least twenty-one
(21) days to consider all its terms, have been advised to consult an attorney
and any other advisors of my choice, and fully understand that by signing below
I am giving up any right which I may have to xxx or bring any other Claims
against the Anteon Releasees. I have not been forced or pressured in any manner
whatsoever to sign this Release, and I agree to all its terms voluntarily.
I have not relied on any representations, promises or agreements of any
kind made to me in connection with my decision to accept the Extended
Compensation Payment except for those set forth in this Release. I understand
that if I wish, I can consider this Release for at least twenty-one (21) days
before I decide whether to sign it.
I understand and agree that this Release will be governed by Virginia
law. I also agree and understand if one or more of these provisions is found to
be invalid, illegal or unenforceable, that will not affect any other provisions
of this Release.
I understand that I have seven (7) days from the date I have signed
this Release below to revoke this Release, that this Release will not become
effective until the eighth (8th) day following the date that I have signed this
Release, and that Anteon will have no obligation to pay me the Extended
Compensation Payment set forth in the Agreement unless and until this Release
becomes effective.
_________________________ _________________________________
Date Employee's Signature
