EMPLOYMENT AGREEMENT
Exhibit 10.1
Execution Copy
This Employment Agreement (the “Agreement”) is hereby entered into effective as of May 19, 2008,
between DynCorp International LLC, a Delaware limited liability company (the “Company”), and
Xxxxxxx X. Ballhaus (“Executive”).
In consideration of the mutual promises and covenants contained herein, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Employment.
1.1. Title and Duties. During the Term (as hereinafter defined) of this Agreement, and subject to
the terms and conditions set forth herein, the Company agrees to employ Executive as its President
and Chief Executive Officer reporting directly to the Chairman of the Board of Directors of DynCorp
International Inc. (the “Board”), the Company’s parent company. The Executive shall have such
authority and responsibilities as are customarily performed by chief executive officers of
businesses similar to those of the Company or as may be specified from time to time by the Board.
1.2. Election to Office. During the Term of this Agreement, the Company shall use its reasonable
efforts to cause the Executive to be nominated as a member of the Board.
1.3. Fulfillment of Duties. During the Term of this Agreement, Executive shall (i) devote his
full business time and best efforts to the performance of his services hereunder, excluding
vacation periods and periods of illness or incapacity, and (ii) perform his services hereunder
faithfully, diligently and to the best of his skill and ability.
1.4. Location. During the Term of this Agreement, Executive will perform his duties and services
in the greater Washington, D.C. metropolitan area and Executive agrees to make such business trips
to the Company’s other locations as may be reasonable and necessary in the performance of his
services hereunder.
2. Compensation and Benefits.
2.1. Salary. In consideration of and as compensation for the services agreed to be performed by
Executive hereunder, the Company agrees to pay Executive during the Term of this Agreement a base
annual salary (the “Base Salary”) of not less than $650,000 per year, less standard deductions and
withholdings, payable bi- monthly in accordance with the Company’s regular payroll practices. The
Company will review Executive’s Base Salary and other compensation from time to time during the
Term of this Agreement and, at the recommendation of the Compensation Committee (the “Committee”) of the Board, may increase his Base Salary or other
compensation from time to time. Any increase in Base Salary or other compensation shall in no way
limit or reduce any other obligation of the Company hereunder and, once established at an increased
rate, Executive’s Base Salary hereunder shall not be reduced, except in connection with an across
the board salary reduction for all executives.
2.2. Incentive Compensation. During the Term of this Agreement, the Executive shall be eligible to
receive an annual bonus (“Bonus”) pursuant to the terms of the DynCorp International LLC Executive
Incentive Plan (the “Executive Incentive Plan”) or any successor plan. The Executive’s target bonus
shall be 100% of his Base Salary (“Target Bonus”), with the actual amount of each Bonus being
determined by the Board or the Committee in accordance with the terms of the Executive Incentive
Plan. The Bonus shall be paid no later than June 15th of the year following the year in which such
compensation is awarded. Notwithstanding the foregoing, the Executive’s Bonus for the fiscal year
2009 shall be no less than $625,000 (the “Guaranteed Bonus”) provided he continues to be employed
by the Company at the time of the Bonus payout.
2.3. Signing Bonus. The Executive shall receive a one-time signing bonus (“Signing Bonus”) in the
amount of $350,000 payable on September 30, 2008, provided the Executive continues to be employed
by the Company on September 30, 2008.
2.4. Equity. During the Term of this Agreement, the Executive shall be eligible to participate in
the DynCorp International 2007 Omnibus Incentive Plan (“OIP”) or any successor plan. The Executive
shall receive a grant of 100,000 restricted stock units (“RSUs”), subject to the terms and
conditions of the OIP. Fifty percent (50%) of the RSUs shall vest with respect to one-third of the
award on the first anniversary of the Commencement Date (as defined in Section 3.1) and with
respect to an additional one-third on each of the next two anniversaries of the Commencement Date
thereafter, subject to the Executive’s continued employment with the Company. The remaining fifty
percent (50%) of the RSUs shall be earned at the end of fiscal year 2009 upon the achievement of
performance goals established by the Committee for the fiscal year 2009, and if earned, shall vest
with respect to one-third of the award on the first anniversary of the Commencement Date and with
respect to an additional one-third on each of the next two anniversaries of the Commencement Date
thereafter, subject to the Executive’s continued employment with the Company. If the performance
goals are not achieved, the Executive shall forfeit his rights in such RSUs. It is the intent of
the Company to provide the Executive with annual grants during the Term that are at least
equivalent in value to the 100,000 RSUs referred to above; provided, however, that any future
grants will be subject to the achievement of performance goals established by the Board or the
Committee and the grant of any awards shall be determined by the Board or the Committee in its sole
discretion; further provided, that nothing contained in this Section 2.4 shall create any obligation on the part of the Company to make any such future grants to the Executive.
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In the event of a Change in Control (as defined below), any outstanding and unvested RSUs (other
than RSUs that have not been earned or vested because performance conditions have not been
achieved) shall fully and immediately vest. “Change in Control” shall mean (x) the acquisition by
any person or group of persons (as defined in Section 13(d) of the Securities Exchange Act of
1934), other than by The Veritas Capital Fund II, L.P., or any affiliates thereof of 51% or more of
either (i) the then outstanding common shares of DynCorp International Inc. or (ii) the combined
voting power of the outstanding voting securities of DynCorp International Inc. entitled to vote
generally in the election of the Board, whether by acquisition, consolidation, merger or otherwise;
(y) individuals who, as of the Commencement Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided, however, that any
individual who becomes a director of DynCorp International Inc. subsequent to the Commencement Date
whose election, or nomination for election by DynCorp International Inc. stockholders, was approved
by the vote of at least a majority of the directors then comprising the Incumbent Board or any
committee of the Board, shall be deemed a member of the Incumbent Board; or (z) the sale of all or
substantially all of the assets of the Company.
2.5. Other Benefits. During the Term of this Agreement, Executive shall be entitled to
participate in all of the applicable employee benefit plans, programs and/or arrangements of the
Company which may be available to the other senior executives of the Company on the same terms as
such other executives.
3. Term.
3.1. Term. The Term of employment under this Agreement means the period that commenced on May 19,
2008 (the “Commencement Date”) and expiring at midnight on May 18, 2011; provided, that this
Agreement will automatically renew for additional periods of one (1) year each commencing on May 19
of each successive year following the initial Term unless written notice of intent not to renew is
delivered by the Company or the Executive to the other party at least 90 days prior to the
effective date of any renewal hereof.
3.2. Termination of Employment
Executive’s employment with the Company may be terminated under the following conditions:
3.2.1. Retirement, Resignation without Good Cause, Death or Disability. Executive’s
employment with the Company shall terminate effective upon the date of Executive’s
Retirement from the Company (as defined in Section 5.4), resignation from the Company without Good Cause, death or
“Complete Disability” (as defined in Section 5.1).
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3.2.2. For Cause. The Company may terminate Executive’s employment under this Agreement
for Cause (as defined in Section 5.2) by delivery of written notice to Executive specifying
the Cause or Causes relied upon for such termination. Any notice of termination given
pursuant to this Section 3.2.2 shall effect termination as of the date specified in such
notice or, in the event no such date is specified, on the last day of the month in which
such notice is delivered or deemed delivered as provided in Section 8.4 below.
3.2.3. Without Cause. The Company may terminate Executive’s employment under this
Agreement at any time and for any reason by delivery of written notice of such termination
to Executive. Any notice of termination given pursuant to this Section 3.2.3 shall take
effect as of the date specified in such written notice.
3.2.4 Termination due to the Expiration of the Term. Executive’s employment with the
Company shall terminate effective upon the last day of the Term, to the extent that either
the Executive or the Company elects not to renew the Term pursuant to Section 3.1.
3.2.5. Termination by Executive for Good Cause. Executive may terminate Executive’s
employment with the Company for Good Cause (as defined in Section 5.3) upon thirty (30)
days written notice to the Company.
3.2.6. Termination by Mutual Agreement of the Parties. Executive’s employment pursuant to
this Agreement may be terminated at any time upon the mutual written agreement of the
parties. Any such termination of employment shall have the consequences specified in such
mutual agreement.
3.2.7. Board/Committee Resignation. Upon termination of Executive’s employment for any
reason, Executive agrees to resign, as of the date of such termination and to the extent
applicable, from the Board (and any committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company’s affiliates.
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4. Compensation upon Termination.
4.1. Retirement, Death or Complete Disability. If Executive’s employment is terminated by his
Retirement, death or Complete Disability, the Company shall pay to the Executive (or his heirs or
legal representative), within 30 days following termination of employment, Executive’s accrued but unpaid Base Salary to the day of
termination and any employee benefits that the Executive is entitled to receive pursuant to the
employee benefit plans of the Company and its subsidiaries in accordance with the terms of such
employee benefit plans. In addition, upon Executive’s (or his heirs or legal representative)
furnishing to the Company an executed waiver and release of claims (a form of which is attached
hereto as Exhibit A, which will be revised for signature by Executive’s heirs or legal
representative if applicable), which is not revoked, the Company shall pay to the Executive (or his
heirs or legal representative), within 30 days following termination of employment, a pro rated
portion of Executive’s Bonus that would be payable to the Executive based on projected Company
performance through the termination date, less standard deductions and withholdings.
4.2. Termination for Cause by the Company, Resignation by Executive, or Nonrenewal of the Term.
If Executive’s employment is terminated by the Company for Cause, if Executive resigns other than
for Good Cause, or either the Executive or the Company elects not to renew the Term pursuant to
Section 3.1, the Company shall pay, within 30 days following termination of employment, Executive’s
accrued but unpaid Base Salary to the day of termination and any employee benefits that the
Executive is entitled to receive pursuant to the employee benefit plans of the Company and its
subsidiaries in accordance with the terms of such employee benefit plans. In addition, if the Term
expires and the Executive’s employment terminates at the election of the Company pursuant to
Section 3.1, the Executive shall receive the following:
4.2.1. A payment equivalent to the sum of: (x) the Executive’s Base Salary plus (y) the
average of (A) the Bonus earned by the Executive for the fiscal year prior to the year of
such termination and (B) the Executive’s Target Bonus, payable in two equal installments.
The first payment shall be made on the first payroll date that is six (6) months following
the Executive’s termination of employment due to the expiration of the Term at the election
of the Company pursuant Section 3.1 and the second payment shall be made on the first
payroll date that is twelve (12) months following such termination.
4.2.2. A payment equal to the Executive’s Bonus, if any, that would have been paid during
the 90 days following such termination of employment if the Executive’s employment had
continued during such 90 days, payable when such Bonus is paid to other executives of the
Company.
4.2.3. Full vesting of any RSUs that would have vested during the 90 days following such
termination of employment if the Executive’s employment had continued during such 90 days.
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4.3. Termination without Cause by the Company or Termination by the Executive for Good Cause. If
the Company terminates Executive’s employment without Cause (except under any circumstance in which
Section 4.1 is applicable to Executive, in which case this Section 4.3 shall not apply), or if the
Executive terminates this Agreement for Good Cause, the Company shall pay to the Executive, within
30 days following termination of employment, (x) Executive’s accrued but unpaid Base Salary to the
day of termination and any employee benefits that the Executive is entitled to receive pursuant to
the employee benefit plans of the Company and its subsidiaries in accordance with the terms of such
employee benefit plans and (y) a pro rated portion of his Bonus that would be payable to the
Executive based on projected Company performance through the termination date, less standard
deductions and withholdings. In addition, upon Executive’s furnishing to the Company an executed
copy of the waiver and release of claims (a form of which is attached hereto as Exhibit A), which
is not revoked, Executive (or his heirs or legal representative) shall be entitled to a payment
equivalent to two times (x) the Executive’s Base Salary plus (y) the average of (A) the Bonus
earned by the Executive for the fiscal year prior to the year of such termination and (B) the
Executive’s Target Bonus, or if such termination occurs during fiscal year 2009, the Executive’s
Guaranteed Bonus, payable in two equal installments. The first payment shall be made on the first
payroll date that is twelve (12) months following such termination, and the second payment shall be
made on the first payroll date that is twenty-four (24) months following such termination.
5. Definitions. For purposes of this Agreement, the following terms shall have the following
meanings:
5.1 Complete Disability. “Complete Disability” shall mean the inability of Executive to perform
Executive’s duties under this Agreement because Executive has become permanently disabled within
the meaning of any policy of disability income insurance covering executives of the Company then in
force. In the event the Company has no policy of disability income insurance covering executives
of the Company in force when Executive becomes disabled, the term “Complete Disability” shall mean
the inability of Executive to perform Executive’s duties under this Agreement by reason of any
incapacity, physical or mental, which the Board, based upon medical advice or an opinion provided
by a licensed physician acceptable to the Board, determines to have incapacitated Executive from
satisfactorily performing all of Executive’s usual services for the Company for a period of at
least one hundred twenty (120) days during any twelve (12) month period (whether or not
consecutive). Based upon such medical advice or opinion, the determination of the Board shall be
final and binding and the date such determination is made shall be the date of such Complete
Disability for purposes of this Agreement.
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5.2. For Cause. For “Cause” shall mean:
5.2.1. the willful and continued failure by Executive to substantially perform his duties
with the Company (other than any such failure resulting from his incapacity due to physical
or mental illness, injury or disability), after a written demand for substantial
performance is delivered to him by the Board that identifies, in reasonable detail, the
manner in which the Board believes that Executive has not substantially performed his
duties in good faith and the Executive fails to cure, if curable, within 30 days after
receipt of such demand.
5.2.2. the willful engaging by Executive in conduct that causes material harm to the
Company, monetarily or otherwise;
5.2.3. Executive’s conviction of a felony arising from conduct during the Term of this
Agreement; or
5.2.4. Executive’s willful malfeasance or willful misconduct in connection with
Executive’s material duties hereunder.
For purposes of this Subsection 5.2 no act, or failure to act, on Executive’s part shall be
considered “willful” unless done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interest of the Company or its
shareholders.
5.3. Good Cause. “Good Cause” shall mean any of the following actions taken by the Company or
any subsidiary that employs the Executive; provided that any such events described in this Section
5.3 shall constitute Good Cause only if the Company fails to cure such event within 30 days after
receipt from Executive of written notice of the event which constitutes Good Cause:
5.3.1. assignment of the Executive to duties that are materially inconsistent with his
status as a senior executive or which represent a substantial diminution of his duties or
responsibilities in the Company;
5.3.2. a reduction in Executive’s Base Salary, except in connection with an
across-the-board salary reduction for all executives;
5.3.3. a failure by the Company to pay any of Executive’s compensation in accordance
with this Agreement or Company policy;
5.3.4. change of Executive’s title; or
5.3.5. a failure to comply with the obligations of the Company under Sections 1.1 and
1.2 hereof, or the failure of a successor to the Company to confirm in writing within 5 business days of its succession its obligation to assume and
perform all obligations of this Agreement.
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5.4. Retirement. “Retirement” shall mean the voluntary retirement of the Executive from the
Company (a) at or after age 62 or (b) at any time after the combination of the Executive’s age and
service with the company or any predecessor or subsidiary equals or exceeds 75 years.
6. Restrictions and Obligations of the Executive
6.1. Confidentiality. Except as required by law or an order of a court or governmental agency with
jurisdiction, the Executive shall not, during the period he is employed by the Company and for
anytime thereafter, disclose Confidential Information (as defined below) to any person or entity
for any reason or purpose whatsoever. Executive shall take all reasonable steps to safeguard the
Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft.
All such Confidential Information shall remain the exclusive property of the Company.
For purposes of this Agreement, “Confidential Information” shall mean non-public information
concerning the Company’s business or operations, plans, strategies, prospects or objectives; its
sales, services, support and marketing plans, practices and operations; the prices, costs and
details of its services or prospective services; the financial condition and results of its
operations; information received from third parties under confidential conditions; the Company’s
personnel and compensation policies; and means of gaining access to the Company’s computer data
systems and related information. “Confidential Information” shall not include general knowledge
based on Executive’s experience in the industry, information generally known in the industry, or
information that is or becomes generally available to the public other than as a result of
prohibited disclosure by the Executive.
6.2. Non-Solicitation. During the Term of this Agreement and for a period of twenty-four (24)
months following the termination of the Executive’s employment for any reason, the Executive shall
not directly or indirectly (a) solicit or attempt to solicit or induce, (x) any party who is a
customer of the Company or its subsidiaries, who was a customer of the Company or its subsidiaries
at any time during the twelve (12) month period immediately prior to the date the Executive’s
employment terminates or who is a prospective customer that has been identified and targeted by the
Company or its subsidiaries as of the date the Executive’s employment terminates, for the purpose
of marketing, selling or providing to any such party any services or products offered by or
available from the Company or its subsidiaries (provided that if the Executive
intends to solicit any such party for any other purpose, he shall notify the Company of such
intention), or (y) any supplier to the Company or any subsidiary to terminate, reduce or alter
negatively its relationship with the Company or any subsidiary or in any manner
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interfere with any agreement or contract between the Company or any subsidiary and such supplier or
(b) solicit or attempt to solicit any employee of the Company or any of its subsidiaries (a
“Current Employee”) or any person who was an employee of the Company or any of its subsidiaries
during the twelve (12) month period immediately prior to the date the Executive’s employment
terminates (a “Former Employee”) to terminate such employee’s employment relationship with the
Company or its subsidiaries in order, in either case, to enter into a similar relationship with the
Executive, or any other person or any entity or hire any employee or Former Employee.
6.3. Non-Competition. During the Term of this Agreement and for a period of: (x) twenty-four (24)
months following the termination of the Executive’s employment for any reason other than due to the
expiration of the Term at the election of the Company pursuant 3.1; or (y) twelve (12) months
following the Executive’s termination of employment due to the expiration of the Term at the
election of the Company pursuant 3.1, the Executive shall not, whether individually, as a director,
manager, member, stockholder, partner, owner, employee, consultant or agent of any business, or in
any other capacity, other than on behalf of the Company or a subsidiary, organize, establish, own,
operate, manage, control, engage in, participate in, invest in, permit his name to be used by, act
as a consultant or advisor to, render services for (alone or in association with any person, firm,
corporation or business organization), or otherwise assist any person or entity that is engaged in
the government services business that is competing for Major Contracts (as defined below) held by
the Company or its affiliates or are being bid on, at the time of the Executive’s termination of
employment. Major Contracts shall mean any contract with potential revenue of not less than $100
million per year. Notwithstanding the foregoing, nothing in this Agreement shall prevent the
Executive from owning for passive investment purposes not intended to circumvent this Agreement,
less than five percent (5%) of the publicly traded common equity securities of any company engaged
in the Business (so long as the Executive has no power to manage, operate, advise, consult with or
control the competing enterprise and no power, alone or in conjunction with other affiliated
parties, to select a director, manager, general partner, or similar governing official of the
competing enterprise other than in connection with the normal and customary voting powers afforded
the Executive in connection with any permissible equity ownership).
6.4. Non-Disparagement. The Executive agrees that he will not at any time (whether during or
after the Term of this Agreement) publish or communicate to any person or entity any Disparaging
(as defined below) remarks, comments or statements concerning the Company, its parent, subsidiaries
and affiliates, and their respective present and former members, partners, directors, officers,
shareholders, employees, agents, attorneys, successors and assigns. The Company agrees to instruct
its executive officers and directors to refrain from publishing or communicating to any person or
entity any Disparaging remarks, comments or statements concerning the Executive at any time
(whether during or
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after the Term), provided that, nothing in this Section 6.4 shall prevent the
Company from (a) responding in a truthful manner to inquiries regarding Executive’s employment or
the termination thereof, from investors, regulators, the Company’s auditors or insurers, or as
otherwise may be required by applicable law, rules or regulations, or (b) disclosing information
concerning the Executive or the termination of Executive’s employment to officers of the Company
or its affiliates who, at the discretion of the Company, should know such information.
“Disparaging” remarks, comments or statements are those that impugn the character, honesty,
integrity or morality or business acumen or abilities in connection with any aspect of the
operation of business of the individual or entity being disparaged.
7. Additional Payment. In the event it shall be determined that any payment, benefit or
distribution (or combination thereof) by the Company or otherwise for the benefit of Executive (a
“Payment”) is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended and any successor or comparable provision, or any interest or penalties are
incurred by Executive with respect to such excise tax (such excise tax, together with any such
interest and penalties, hereinafter collectively referred to as the “Excise Tax”), Executive shall
be entitled to receive an additional payment as set forth in Exhibit B. Such payment shall be made
by the end of the Executive’s taxable year following the taxable year in which the Executive remits
the related taxes.
8. Miscellaneous.
8.1 Indemnification. The Company agrees at all times during the Term of this Agreement and
thereafter, to indemnify, defend and hold the Executive, his heirs, estate and legal
representatives harmless from, any and all claims, liabilities, demands, allegations, causes of
action, or other threats, related to or in any way arising out of, the services provided by the
Executive under this Agreement or at the request of the Company, including the Executive’s services
as a member of the Board; provided, however, that this indemnification shall not apply to acts or
omissions that are the result of conduct that would preclude the Executive from receiving
indemnification under Section 145 of the Delaware General Corporation Law in effect from time to
time. Upon receipt of notice of the assertion of any such claim, liability, demand, allegation,
cause of action or other threat, the Company shall pay the Executive the cost of his defense by a
counsel mutually acceptable to the Company and Executive, and shall be responsible for the full
payment of any judgment including damages or penalties, including punitive damages or penalties,
that may be assessed or payable as a result of a settlement to which the Company and the Executive
consent, including the deductible portion of any loss covered by Director and Officer Liability
Insurance. Nothing herein shall limit the rights of the Executive to the protections afforded by
the Directors and Officers Liability Insurance as in effect from time to time.
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8.2. Executive Representations. Executive represents to the Company that (a) the execution,
delivery and performance of this Agreement by Executive does not and will not conflict with,
breach, violate or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which Executive is bound and (b) Executive is not a
party to or bound by any employment agreement, noncompete agreement or confidentiality agreement
with any other person or entity that would prohibit the Executive from performing his duties under
this Agreement.
8.3. Compliance with Company Policies. During the Term of this Agreement, the Executive shall at
all times comply with all applicable Company policies and procedures, including the Company’s
Standards of Business Conduct.
8.4. Notices. Any written notice, required or permitted under this Agreement, shall be deemed
sufficiently given if either hand delivered or if sent by fax or overnight courier. Written notices
must be delivered to the receiving party at his or its address on the signature page of this
Agreement. The parties may change the address at which written notices are to be received in
accordance with this section.
8.5. Assignment. Executive may not assign, transfer, or delegate his rights or obligations
hereunder and any attempt to do so shall be void. This Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and assigns and the term “Company” as used
herein shall include such successors and assigns to the extent applicable.
8.6. Entire Agreement. This Agreement, including Exhibit A and Exhibit B contains the entire
agreement of the parties with respect to the subject matter hereof, and all other prior
agreements, written or oral, are hereby superseded and are of no further force or effect including,
without limitation, the letter from the Company dated April 23, 2008. This Agreement may be
modified or amended only by a written agreement that is signed by the Company and Executive. No
waiver of any section or provision of this Agreement will be valid unless such waiver is in writing
and signed by the party against whom enforcement of the waiver is sought. The waiver by the
Company of any section or provision of this Agreement shall not apply to any subsequent breach of
this Agreement. Captions to the various sections in this Agreement are for the convenience of the
parties only and shall not affect the meaning or interpretation of this Agreement. This Agreement
may be executed in several counterparts, each of which shall be deemed an original, but together
they shall constitute one and the same instrument.
8.7. Severability. The provisions of this Agreement shall be deemed severable, and if any part of
any provision is held illegal, void, or invalid under applicable law such provision may be changed
to the extent reasonably necessary to make the provision, as so changed, legal, valid and binding.
If any provision of this Agreement is held illegal, void, or invalid in its entirety, the remaining
provisions of this Agreement shall not in any way be affected or impaired but shall remain binding in
accordance with their terms.
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8.8. Withholding Taxes. The Company may withhold from any amounts payable under this Agreement
such Federal, state and local taxes as may be required to be withheld pursuant to any applicable
law or regulation.
8.9. Applicable Law. This Agreement and the rights and obligations of the Company and Executive
thereunder shall be governed by and construed and enforced under the laws of the State of New York
without regard to New York’s conflict of laws rules.
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In Witness Whereof, the parties have executed this Agreement effective as of the date first
above written.
| DynCorp International LLC | ||||||
| By: | /s/ Xxxxxx X. XxXxxx | |||||
| Xxxxxx X. XxXxxx | ||||||
| DynCorp International | ||||||
| Attn: Chairman, Board of Directors | ||||||
| 0000 Xxxxxxxx Xxxx Xxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxx Xxxxxx, XX 00000 | ||||||
| with a copy to: | Xxxxxxx Xxxx & Xxxxx LLP | |||||
| Attn: Xxxxxxxx X. Xxxx, Esq. | ||||||
| 000 Xxxxx Xxxxxx | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| Executive | ||||||
| By: | Xxxxxxx X. Ballhaus | |||||
| Xxxxxxx X. Ballhaus | ||||||
| at: | 00000 Xxxxxxxxxx Xxxxx | |||||
| Xxxxxxxxxx, XX 00000 | ||||||
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EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in the Employment Agreement dated May
19, 2008 (the “Employment Agreement”), to which this form is attached, I, Xxxxxxx X. Ballhaus,
hereby furnish DynCorp International Inc. (the “Company”), with the following release and waiver
(“Release and Waiver”).
I hereby release, and forever discharge the Company, its officers, directors, agents, employees,
stockholders, successors, assigns affiliates and benefit plans, all of their past and present
officers, directors, agents, and insurers, in all capacities, including individually (all of which
organizations and persons are hereinafter collectively identified as the “Company Parties”), from
any and all claims, demands, actions, indemnities, liabilities, or obligations of whatever kind and
nature, which I may have had, may now have, or may hereafter claim to have through the date this
Release and Waiver is executed, whether known or unknown, contingent or otherwise, at law or in
equity, including, without limitation, any claim arising at any time prior to and including my
employment termination date with respect to any claims relating to my employment and the
termination of my employment, all compensation and benefits relating to my employment (including
but not limited to, claims for salary, bonuses, commissions, stock, stock options, vacation pay,
fringe benefits, severance pay or any form of compensation); any claim of discrimination based on
my race, color, religion, sex, national origin, or disability, if any; any claim that the Company
Parties have violated any federal, state or local statute, regulation, or ordinance with respect to
my employment or the cessation thereof, including, without limitation, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 1981, the Employee Retirement Income Security Act of 1974 and the
Family and Medical Leave Act; any claim that the Company Parties have wrongfully terminated my
employment or breached any oral, written, express, or implied employment agreement; any claim that
the Company Parties have intentionally or negligently inflicted emotional distress, mental anguish
or humiliation on me; any claim of the breach of any implied covenant of good faith and fair
dealing; any claim of damages, monetary or other personal relief, and/or attorney’s fees in any
administrative and/or judicial proceeding initiated by me, by any third party on my behalf, or by
any governmental authority prior to or following my execution of this Release and Waiver; any
claim of libel, slander and/or defamation of character; any retaliation, “whistleblower,” or
public policy claim; and any other claim of whatever kind not specifically identified in this
Release and Waiver; provided, however, that this release does not extend to and will not release
the Company from any of its obligations under the Employment Agreement.
I acknowledge that, among other rights, I am waiving and releasing any rights I may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which I was already entitled as an Executive of the Company. I further acknowledge that I have been advised, as required by the
I acknowledge that, among other rights, I am waiving and releasing any rights I may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which I was already entitled as an Executive of the Company. I further acknowledge that I have been advised, as required by the
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Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted herein does not
relate to claims which may arise after this Release and Waiver is executed; (b) I have the right to
consult with an attorney, at my expense, prior to executing this Release and Waiver (although I may
choose voluntarily not to do so); (c) I have twenty-one (21) days from the date of termination of
my employment with the Company in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release and Waiver earlier); (d) I am entitled to revoke my consent to
this Release and Waiver within seven (7) days following the execution of this Release by delivering
written revocation notice to DynCorp International, 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, XX 00000, Attention: Chairman of the Board of Directors and (e) this Release and Waiver
shall not be effective until the seven (7) day revocation period has expired. If I timely revoke
this Release and Waiver after signing it, this Release and Wavier will become null and void and the
Company will have no obligation to provide me any of the consideration given for this Release and
Waiver.
| By: | /s/ Xxxxxxx X. Ballhaus | |||
| Xxxxxxx X. Ballhaus |
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EXHIBIT B
1. In the event it shall be determined that any Payment is subject to an Excise Tax, Executive
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that
after payment by Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and the 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 Payments.
2. All determinations required to be made under this Exhibit B, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a nationally recognized accounting
firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and Executive; provided that for purposes of determining the
amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest
marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is
to be made and deemed to pay state and local income taxes at the highest effective rates applicable
to individuals in the state or locality of Executive’s residence or place of employment in the
calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in
federal income taxes that can be obtained from deduction of such state and local taxes, taking into
account limitations applicable to individuals subject to federal income tax at the highest marginal
rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the
Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to
Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company
and Executive.
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