AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
AMENDMENT
TO
This
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”), is
effective as of the 28th day of
February, 2010, by and between FORTRESS INTERNATIONAL GROUP, INC., a Delaware
corporation (f/k/a Fortress America Acquisition Corporation) (the “Company”), and Xxxxxx
X. Xxxxxxxxx (the “Executive”). Each
of the Company and Executive are hereinafter individually referred to as a
“Party,” and
collectively as the “Parties”.
EXPLANATORY
STATEMENTS
The Parties are all of the parties to
that certain Executive Employment Agreement, effective as of January 19, 2007
(the “Employment
Agreement”). The Parties desire to amend certain terms and
conditions set forth in the Employment Agreement, all as further described and
set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
1. Amendments
to Employment Agreement. The terms and conditions of the
Employment Agreement are hereby amended as follows:
(a) Duties. Section
2.2 is hereby deleted in its entirety and the following is substituted in lieu
thereof:
2.2. Duties. During the
Employment Period, and subject to the provisions of this Agreement, the
Executive shall devote the Executive’s full working time and attention and use
the Executive’s best efforts and skill to further the interests of the
Company. The Executive shall, to the best of his ability, execute the
strategic plan of the Company as approved by the Board, perform his duties,
adhere to the Company’s published policies and procedures, promote the Company’s
interests, reputation, business and welfare, and work actively with the Board
and other senior managers to help augment the existing business base, increase
the corporate contract backlog, and indentify and develop new business
opportunities. The Executive shall perform such services for the
Company as is consistent with the Executive’s position (subject to the power and
authority of the Board to expand or limit such services and to overrule actions
of officers of the Company) and as lawfully directed, from time to time, by the
Board. During the Employment Period, the Executive’s title shall be
President and Chief Operating Officer of the Company. During the
Employment Period, the Executive shall also serve as the President and Chief
Executive Officer of VTC, L.L.C., a Maryland limited liability company (d/b/a/
“Total Site Solutions”), a subsidiary of the Company. During the
Employment Period, the Executive shall report to the Board, and the Executive
may use such additional titles as assigned and approved by the
Board. The Executive shall not, during the Employment Period, be
employed or involved in any other business activity for gain, profit or other
pecuniary advantage. Notwithstanding the immediately foregoing
sentence, the Executive may (a) volunteer services for or on behalf of such
religious, educational, non-profit and/or charitable organizations as the
Executive may wish to serve; (b) manage his personal, financial and legal
affairs; and (c) participate as a director of, or own less than fifty
percent (50%) of
the equity interest or voting rights in, any other business entity that does not
directly or indirectly compete with the business of the Company, so long as (1)
the Executive provides the Audit Committee of the Board prior written notice of
such activities that describes such activities in reasonable detail (provided,
however, that such notice shall not be required for any investment by the
Executive that would result in the Executive owning not more than five percent
(5%) of the outstanding stock or voting power of a business entity listed on a
national securities exchange); (2) such activities do not interfere, or could
not reasonably be expected to interfere, with his duties and responsibilities to
the Company as provided hereunder, (3) the Executive is not actively involved in
the management of such business entity, except to the extent the Executive
serves on such business entity’s board of directors or similar governing body;
(4) such activities do not violate any of the terms of this Agreement or any
other agreement entered into with the Company (including, but not limited to,
Sections 2.4 and 7 hereof), and (5) such activities would not be the types of
activities required, in the sole discretion of the Audit Committee, to be
disclosed under Item 404 of Regulation S-K promulgated by the Securities and
Exchange Commission regardless of whether the Company is subject to such
disclosure requirements. The Executive acknowledges that the
Executive may be required to travel on business in connection with the
Executive’s performance of the Executive’s duties hereunder, but that the
Executive’s base will be the location of the Company’s headquarters in Columbia,
Maryland or such other location as determined by the Board.
(b) Base
Salary. Section 3.1 is hereby deleted in its entirety and the
following is substituted in lieu thereof:
3.1. Base Salary. The
Executive’s current annual base salary is One Hundred Fifty Thousand Dollars
($150,000) (“Base
Salary”), paid in approximately equal installments
bi-weekly. Effective September 1, 2010, the Executive’s Base Salary
shall be adjusted to Two Hundred Thousand Dollars ($200,000) per year, paid in
approximately equal installments bi-weekly. The Company will review
the Executive’s Base Salary on December 31 of each year of the Employment Period
in order to determine, in the sole discretion of the Board or the Compensation
Committee of the Board, whether any adjustments to the Base
Salary need to be made based on factors approved by the Board, which may include
the Executive’s individual performance, the financial results and condition of
the Company as of and for the recent fiscal year, and the Company’s projected
financial performance and profitability. In no event shall the
Executive’s Base Salary be reduced below the amount paid in the preceding
year.
(c) Termination. Section
5.2 is hereby deleted in its entirety and the following is substituted in lieu
thereof:
5.2. Termination by the Company Other Than
for Death, Disability, or Cause or by Executive for a Good
Reason. In addition to the payment to Executive of the
Executive’s Base Salary and reimbursement of any applicable expenses pursuant to
Section 4.2
through the Date of Termination, if (a) the Employment Period is terminated (i)
by the Company for reasons other than death, Disability, or Cause, or (ii) by
the Executive for a Good Reason, or (iii) by reason of non-renewal or
termination of employment in accordance with the terms of Section 2.1.2 hereof
(provided the Company provides the requisite notice to the Executive to
terminate prior to any Expiration Date); and (b) the Executive executes a
general release in the form attached hereto as Exhibit
C (the “Release”) on or
before the effective Date of Termination; and (c) the Executive has not breached
the terms of the “Assignment Agreement” (as defined below); then the Company
shall pay the Executive an amount equal to the Executive’s Base Salary (at the
rate in effect at the Date of Termination) for a period of twelve (12) months
following the Date of Termination. Any payment under this Section 5.2 shall be
made over time as though the Executive continued to be employed by the
Company. If the Executive elects and remains eligible for health
coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as
amended (“COBRA”) (and subject
to withholding pursuant to Section 3.4 above), then commencing
within fifteen (15) business days following the date on which the Release become
effective pursuant to its terms, the Company will, for a period commencing on
the Date of Termination and continuing for twelve (12) months after the Date of
Termination, pay a percentage of the premium for such COBRA health coverage
equal to the percentage of the premium for health insurance coverage paid by the
Company on the Date of Termination. The Executive shall not be
entitled to any other salary or compensation after termination of the Employment
Period (other than as set forth in this Section 5.2 and Section 5.3) and no
Person shall be entitled hereunder to participate in any employee benefit plan
after the Date of Termination if the Employment Period is terminated in
connection with this Section 5.2, except
as otherwise specifically provided hereunder or as required by applicable law
(i.e., COBRA) and provided that nothing
herein shall be interpreted to limit the Executive’s conversion rights, if any,
under any of the Company’s employee benefit plans. In furtherance of
and not in limitation of the foregoing, the Executive may only be terminated by
the affirmative vote of a majority of the whole Board (excluding the Executive
if he is a member of the Board).
2. Effect of
Amendment. Except
as otherwise expressly provided herein, all provisions of the Employment
Agreement shall remain in full force and effect. This Amendment and
the Employment Agreement contain the entire understanding of the Parties with
respect to the subject matter hereof and thereof, and supersede all prior oral
or written communications, agreements and understandings between the Parties
with respect to the subject matter hereof and thereof. This Amendment
is intended to modify the provisions of the Employment Agreement; in the event
that there is a conflict between the terms of this Amendment and the Employment
Agreement, the Parties intend that the provisions of this Amendment should
govern their respective rights and obligations.
3. Miscellaneous. The
Explanatory Statements form a material basis for this Amendment and are
expressly incorporated herein and made a part hereof. All capitalized
terms not otherwise defined in this Amendment shall have the meanings assigned
to them in the Employment Agreement. All questions concerning the
construction, validity, and interpretation of this Amendment and the performance
of the obligations imposed by this Amendment will be governed by the laws of the
State governing the Employment Agreement, without reference to any conflict of
laws rules that would apply the laws of another jurisdiction. This
Amendment may be executed simultaneously in multiple counterparts, each of which
will be deemed to be an original copy of this Amendment and all of which
together will be deemed to constitute one and the same agreement. The
exchange of copies of this Amendment and of signature pages by facsimile
transmission or e-mail delivery of a .pdf format data file shall constitute
effective execution and delivery of this Amendment as to the Parties and may be
used in lieu of the original Amendment and signature pages thereof for all
purposes.
{Signatures
appear on the following page}
IN WITNESS WHEREOF, the
Parties have executed this Amendment as of the day and year first written
above.
Signature
page to Amendment to
