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EXHIBIT 10.14
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 Xxxx X. Xxxxxxxx (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
(the "Merger Agreement") by and among the Corporation, Phoenix Acquisition
Corp., Phoenix Planning & Evaluation, Ltd. ("Phoenix") and the Stockholders of
Phoenix Planning & Evaluation, Ltd. dated August 31, 1998.
WHEREAS, as of the Effective Time, 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;
WHEREAS, the Corporation acknowledges that the Executive possesses the
experience and resource capabilities to operate Phoenix;
WHEREAS, the Corporation does not intend to manage Phoenix on an
operational basis;
WHEREAS, the Corporation does not intend to enter into the Merger
Agreement or to consummate the transactions contemplated thereby (or any
subsequent merger of Phoenix with and into the Corporation) unless the Executive
is and continues to be employed by Maximus as Division President;
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 employs the Executive, and the
Executive hereby accepts such employment, to serve as a Division President of
the Corporation, reporting directly to the President of the Corporation's
Consulting Division. As a Division President of the Corporation, the Executive
will be deemed a Section 16 officer under the Securities Exchange Act of 1934,
as amended. The Corporation and the Executive each intend that the Executive
will continue to manage Phoenix with the goal of increasing the revenues and
profits of Phoenix. The Executive hereby represents and warrants that he 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 President of the Corporation's
Consulting Division or the Board of Directors of the Corporation. During the
term of this Agreement, the Executive shall be a full time employee of the
Corporation and shall
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devote such time and attention to the discharge of his duties as may be
necessary and appropriate to accomplish and complete such duties.
1.2 Compensation.
(a) Salary and Regular Year-End Bonus. As compensation for
performance of his obligations hereunder, the Corporation shall pay the
Executive (i) an annual salary of not less than $220,000, such annual salary to
be reviewed annually for adjustment beginning on or about September 30, 1999,
(ii) a one-time bonus of $105,000 to be paid to the Executive on or about
September 30, 1998 and (iii) a regular year-end bonus for the fiscal years 1999,
2000 and 2001 consistent with the Corporation's past 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 participate
in stock option and incentive plans and receive fringe benefits as may be
granted or established by the Corporation from time to time; provided however,
that the Executive hereby acknowledges that in the past, options have been
granted at the discretion of the Chief Executive Officer of the Corporation and
not pursuant to a regular schedule or program, and that the Corporation does not
anticipate a change in such practice. The Executive shall also be entitled to
the continued use of his currently leased automobile for the remaining duration
of the current lease at the expense of the Corporation, such expense to include
insurance, maintenance and all other reasonable expenses related to the use of
said automobile. At the termination of the normal term of the current automobile
lease, the Corporation and the Executive will negotiate whether a new automobile
lease, or any extension or modification to the current automobile lease, will be
entered into.
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 four (4) years thereafter (the "Scheduled Termination Date")
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 each such case after continued failure to cure such breach or
misconduct within thirty (30) days after written demand for performance has been
given to the
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Executive by the Corporation, which demand shall describe specifically the
nature of such alleged failure to perform or observe such material terms and
provisions.
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, 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 holder of
not more than 1% of the combined voting power of the outstanding stock of a
publicly held company):
(a) if the Executive's employment is terminated pursuant to Section
1.3 prior to the Scheduled Termination Date:
(i) engage in direct or indirect competition with the
Corporation's Consulting Group;
(ii) conduct a business of the type or character engaged in by
the Corporation's Consulting Group at the time of termination or cessation of
the Executive's employment; or
(iii) develop products or services competitive with those of the
Corporation's Consulting Group.
(b) if the Executive's employment is not terminated pursuant to
Section 1.3 prior to the Scheduled Termination Date, then only with respect to
products and services developed, marketed and sold within the scope of the
Executive's employment under this Agreement:
(i) engage in direct or indirect competition with the
Corporation's Consulting Group;
(ii) conduct a business of the type or character engaged in by
the Corporation's Consulting Group at the time of termination or cessation of
the Executive's employment; or
(iii) develop products or services competitive with those of the
Corporation's Consulting Group.
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2.2 Prohibited Activities.
(a) The Executive agrees that, during his employment with the
Corporation, and thereafter for a period of two 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 his 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 Executive agrees that, in addition to any other remedy
available to the Corporation, in the event of a breach by the Executive of the
terms of this Section 2 the Corporation may set off against any amounts due the
Executive, an amount equal to the gross revenues which such Executive, or any
entity with which the Executive is employed, affiliated or associated, receives
or is entitled to receive, from any existing clients (or potential clients with
whom a proposal is pending) of the Corporation during the two-year period
provided in this Section 2.
(c) The provisions of this Section 2 shall continue for a period of
two 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 agrees promptly to advise the Corporation of, and
provide the Corporation with an opportunity to pursue, all business
opportunities that reasonably relate to the present business conducted by the
Corporation.
(b) The Executive, in his 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 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 his 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 officer 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 on a nonconfidential basis prior to its
disclosure hereunder or becomes available on a nonconfidential basis other than
from the Executive), 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 or as required by court order or other legal process. 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. 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 regarding the proprietary information referred to in this Section 3
which is also a trade secret of the Corporation pursuant to the laws 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.
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.
(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
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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 all or, at each Holder's option, any
portion of the Registrable Shares of any Holders who shall have made such
request, 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 in writing 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, such Holder 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 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
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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 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.
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
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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 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
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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 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
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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:
Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 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), and the Executive hereby consent to the jurisdiction of such court
with respect to any action, suit or proceeding commenced in such court by the
Corporation. 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.
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.
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.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
\s\ XXXX X. XXXXXXXX
-----------------------------
Xxxx X. Xxxxxxxx
MAXIMUS, INC.
By: \s\ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
President and Chief Executive Officer
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