EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
EMPLOYMENT AGREEMENT
(“Agreement”),
dated
as of August 7, 2008 to be effective August 11, 2008 (the “Effective
Date”),
by
and between ATS Corporation, a Delaware corporation (hereinafter referred to
as
“Employer”),
and
Xxxxxx Xxxxxxxx, an individual (hereinafter referred to as “Executive”)
residing at the address set forth on the signature page hereof.
WITNESSETH:
WHEREAS,
Employer desires to engage or employ Executive to perform services for Employer
(or any present or future parent, subsidiary, or affiliate of Employer and
any
successor or assign of Employer) upon the terms and conditions set forth below,
and Executive desires to accept employment upon such terms and conditions.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to
be legally bound, hereby agree as follows:
1. EMPLOYMENT.
Employer hereby employs Executive to serve in the position of Executive Vice
President and Chief Operating Officer, and Executive hereby accepts employment
by Employer in such position, upon all of the terms and conditions set forth
in
this Agreement.
2. TERM.
This
Agreement and the term of Executive’s employment hereunder (the “Employment
Term”)
(i)
shall begin on the Effective Date and, unless earlier terminated as set forth
in
Section 9 hereof, shall continue through December 31, 2010 (the “Initial
Term”)
and
(ii) after the end of the Initial Term, shall renew automatically for successive
one (1)-year terms (each, a “Renewal
Term”),
subject to the right of either party to terminate this Agreement upon thirty
(30) days’ prior written notice to the other party. Further, the phrase
“termination of employment” as used hereinafter shall be deemed to be
“separation from service” under Section 409A of the Internal Revenue Code (the
“Code”).
3. EXECUTIVE’S
REPRESENTATIONS AND WARRANTIES.
Executive represents, warrants and covenants to Employer that he is free to
accept employment with Employer as contemplated herein and has no other written
or oral obligations or commitments of any kind or nature that would in any
way
interfere with his acceptance of employment pursuant to the terms hereof or
the
full performance of his obligations hereunder or that would otherwise pose
any
conflict of interest.
4. DUTIES
AND EXTENT OF SERVICES.
(a) Duties.
During
the Employment Term, Executive shall serve in the position of Executive Vice
President and Chief Operating Officer and shall have such authority and perform
such duties as are commensurate with such position and as reasonably assigned
by
Employer and consistent with such position. In addition, Executive shall hold
such other office(s) with Employer (or any affiliates of Employer) to which
he
may be elected, appointed or assigned from time to time, and to which he has
consented, and shall discharge the duties related to such
offices.
(b) Extent
of Service.
During
the Employment Term, Executive shall devote his full business time, skill,
attention and energy exclusively, diligently, and competently to perform the
duties and responsibilities assigned to him hereunder or pursuant hereto,
provided
that he
may manage personal investments, and, with the consent of Employer which shall
not be unreasonably withheld, delayed or conditioned, serve on corporate, civic
or charitable boards. Executive shall be available to travel as the reasonable
needs of the business of Employer require.
5. COMPENSATION.
(a) Base
Salary.
Subject
to Section 11 of this Agreement, for all services rendered under this Agreement
during the Term, Employer shall pay to Executive a base salary of Three-Hundred
Thousand Dollars ($300,000) per annum, as increased from time to time with
the
approval of the Compensation Committee (“Base
Compensation”).
The
Base Compensation shall be payable in installments in accordance with Employer’s
normal payroll practices for compensating its Executives and shall be subject
to
payroll deductions and tax withholdings in accordance with Employer’s usual
practices and as required by law. Effective with Employer’s 2009 salary review
cycle for officers and senior managers, Executive shall become eligible to
receive annual increases consistent with Employer’s practices with respect to
annual salary increases given to other Executives of Employer with
responsibilities, titles and performance comparable to those of
Executive.
(b) Incentive
Compensation. Beginning
immediately but on a pro rata basis for calendar year 2008, Executive shall
be
entitled to performance-based incentive compensation within
the meaning of Section 409A of the Code (“Incentive
Compensation”)
in an
amount up to 60% of the Base Compensation. The Incentive Compensation payable
for each performance period (which shall not be less than twelve (12) months)
shall be contingent on and based on corporate and individual performance
criteria agreed to between Executive and the Compensation Committee from time
to
time. The target amount payable as Incentive Compensation, as agreed upon
between Executive and the Compensation Committee from time to time, is
hereinafter referred to as the “Incentive
Compensation Target.”
6. FRINGE
BENEFITS AND EXPENSES.
(a) Fringe
Benefits.
Executive shall be entitled to such fringe benefits as are generally made
available by Employer to executive personnel, including, but not limited to,
health insurance.
(b) Expenses.
Employer shall reimburse Executive for his reasonable out-of-pocket costs and
expenses in connection with the performance of his duties and responsibilities
hereunder, subject to the submission of appropriate vouchers, bills and receipts
in accordance with Employer’s policies from time to time in effect, including
sufficient detail to entitle Employer to income tax deductions for such paid
items, if such items are so deductible.
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7. NON-COMPETITION
AND NON-SOLICITATION.
(a) For
as
long as Executive shall remain employed by Employer and for (i) one year if
terminated by Employer for Cause or by Employee for any reason and (ii) the
applicable following period if terminated by Employer without Cause pursuant
to
Section 11(f): (x) one year if terminated during the Initial Term; or (y) nine
months if terminated after the Initial Term (the “Non-Competition
Period”),
Executive shall not, directly or indirectly, as principal, agent, Executive,
employer, consultant, independent contractor, stockholder, partner or in any
other individual capacity whatsoever (except as permitted herein), engage in
any
Competitive Business Activities without the written consent of Employer which
shall not unreasonably be withheld. For purposes of this Agreement,
“Competitive
Business Activity”
means
any business activities that are competitive with the activities of Employer
as
of the Effective Date. The foregoing shall not prevent Executive from owning
for
investment purposes up to 5% of the outstanding securities of a publicly traded
company engaged in a Competitive Business Activity (provided
that, in
no event shall Executive own more than 5% of the outstanding securities of
a
publicly traded company engaged in a Competitive Business Activity).
(b) For
a
period equal to the longer of (i) five (5) years after the Effective Date and
(ii) two (2) years after Executive ceases, for any reason, to be employed by
Employer or its affiliates, Executive shall not (for his own benefit or for
the
benefit of any person other than Employer and its affiliates), for the
Non-Competition Period, solicit, or assist any person other than Employer to
solicit, any officer, director, executive or Executive of Employer or any of
their respective affiliates to leave his or her employment.
(c) During
the Non-Competition Period, Executive shall not, either himself, or for the
benefit of any other person, either as Executive, consultant, investor or in
any
other capacity whatsoever, contact any Customer or Prospective Customer for
the
purpose of selling any products or services that constitute a Competitive
Business Activity. For purposes of this Agreement, “Customer”
means
any Person who has purchased products or services from Employer and its
affiliates at any time within two (2) years prior to the Effective Date, and
“Prospective
Customer”
means
any Person who Employer and its affiliates will actively solicit (or had
targeted for solicitation) as of the Effective Date.
(d) Executive
has carefully read and considered the provisions of this Section 7, and,
having done so, agrees that (i) the restrictions set forth herein are
reasonable, in terms of scope, duration, geographic scope and otherwise, (ii)
Employer is in the process of expanding its operations and Executive will have
access to critical information regarding its operations and therefore the broad
scope of the restrictions relating to Employer’s business are necessary, (iii)
the protection afforded to Employer hereunder is necessary to protect its
legitimate business interests and is no greater than necessary to protect
Employer’s legitimate business interests, (iv) the agreement to observe such
restrictions forms a material part of the consideration for this Agreement
and
Executive’s employment by Employer and (v) upon the termination of Executive’s
employment with Employer for any reason, she will be able to earn a livelihood
without violating the foregoing restrictions. In the event that, notwithstanding
the foregoing, any of the provisions of this Section 7 shall be held to be
invalid or unenforceable, the remaining provisions thereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provision of this
Section 7 relating to the time period and/or the areas of restriction and/or
related aspects shall be declared by a court of competent jurisdiction to exceed
the maximum restrictiveness such court deems reasonable and enforceable, the
time period and/or areas of restriction and/or related aspects deemed reasonable
and enforceable by the court shall become and thereafter be the maximum
restriction in such regard, and the restriction shall remain enforceable to
the
fullest extent deemed reasonable by such court.
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(e) Executive
agrees that Employer’s remedies at law for any breach or threat of breach by his
of any of the provisions of this Section 7 will be inadequate and that Employer
shall be entitled to seek an injunction or injunctions to prevent breaches
of
the provisions of this Section 7 and to enforce specifically the terms and
provisions thereof, in addition to any other remedy to which Employer may be
entitled at law or equity. Employer agrees that the Employee’s obligations under
this Section 7 are contingent upon the Employer fulfilling its obligations
to
make the payments required by Section 11, Section 12, and Section 13.
8. TRADE
SECRETS.
Executive shall not use or disclose any of Employer’s trade secrets or other
confidential information. The term “trade secrets or other confidential
information” includes, by way of example, matters of a technical nature, such as
scientific, trade and engineering secrets, “know-how,” formulae, secret
processes or machines, inventions, computer programs (including documentation
of
such programs) and research projects, and matters of a business nature, such
as
proprietary information about costs, profits, markets, sales, lists of
customers, plans for future development, and other information of a similar
nature that is designated as confidential or generally maintained as
confidential or proprietary by Employer. After termination of Executive’s
employment, Executive shall not use or disclose trade secrets or other
confidential information unless such information becomes a part of the public
domain other than through a breach of Employer’s policies or is disclosed to
Executive by a third party who is entitled to receive and disclose such
information.
9. RETURN
OF DOCUMENTS AND PROPERTY. Upon
the
effective date of notice of Executive’s or Employer’s election to terminate
Executive’s employment, or at any time upon the request of Employer, Executive
(or her heirs or personal representatives) shall deliver to Employer (a) all
documents and materials containing trade secrets or other confidential
information relating to Employer’s business and affairs, and (b) all documents,
materials and other property belonging to Employer, which in either case are
in
the possession or under the control of Executive (or her heirs or personal
representatives).
10. DISCOVERIES
AND WORKS.
All
discoveries and works made or conceived by Executive during his employment
by
Employer, jointly or with others, that relate to Employer’s activities shall be
owned by Employer. The term “discoveries and works” includes, by way of example,
inventions, computer programs (including documentation of such programs),
technical improvements, processes, drawings and works of authorship. Executive
shall (a) promptly notify, make full disclosure to, and execute and deliver
any
documents requested by, Employer to evidence or better assure title to such
discoveries and works in Employer, (b) assist Employer in obtaining or
maintaining for itself at its own expense United States and foreign patents,
copyrights, trade secret protection or other protection of any and all such
discoveries and works, and (c) promptly execute, whether during his employment
by Employer or thereafter, all applications or other endorsements necessary
or
appropriate to maintain patents and other rights for Employer and to protect
its
title thereto. Any discoveries and works which, within six months after the
termination of Executive’s employment by Employer, are made, disclosed, reduced
to a tangible or written form or description, or are reduced to practice by
Employer and which pertain to the business carried on or products or services
being sold or developed by Employer at the time of such termination shall,
as
between Executive and Employer, be presumed to have been made during Executive’s
employment by Employer. Set forth on Schedule
10
attached
hereto is a list of inventions, patented or unpatented, if any, including a
brief description thereof, which are owned by Executive, which Executive
conceived or made prior to her employment by Employer and which are excluded
from this Agreement.
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11. TERMINATION
OF EMPLOYMENT.
(a) Upon
thirty (30) days’ prior written notice, Employer may terminate Executive’s
employment, with or without “Cause,” as defined in Section 11(f) below. Upon
thirty (30) days’ prior written notice, Executive may terminate his employment,
with or without “Good Reason,” as defined in Section 11(e) below. Upon any
termination of Executive’s employment (the “Date
of Termination”)
for
any reason, Employer shall:
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(i)
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pay
to Executive any unpaid Base Compensation through the Date of
Termination;
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(ii)
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pay
to Executive any unpaid Incentive Compensation earned with respect
to
completed performance periods but not paid through the date of termination
under the terms of applicable incentive compensation arrangements;
and
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(iii)
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provide
to or for the benefit of Executive the benefits, if any, otherwise
expressly provided under this Section 11, Section 12 or Section 13,
as
applicable.
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Any
payments under this Section 11, Section 12 or Section 13 that are to be made
in
connection with the termination of Executive’s employment are subject to the
provisions of Section 21 and will be paid in cash (with deduction of such amount
as may be required to be withheld under applicable law and regulations) within
ten (10) business days of Executive’s termination of employment; provided,
however,
that in
the event Executive’s employment is terminated pursuant to Section 11(b) below,
then, at Employer’s election, the “No Cause/Good Reason Termination Fee” (as
therein defined) shall be payable in equal monthly installments over the
Applicable Severance Period (as defined in Section 11(b)) with the first payment
due within five business days after the date of Executive’s termination of
employment (collectively, the “Termination
Fee Installment Payments”).
All
other compensation and employment benefit arrangements provided for in this
Agreement shall cease upon such termination of employment except to the extent
required by law or otherwise expressly provided by such arrangements.
(b) In
the
event Employer terminates Executive’s employment without Cause or Executive
terminates his employment for Good Reason, then, in addition to the benefits
provided for under Sections 11(a)(i) and 11(a)(ii) and subject to the provisions
of Sections 13 and 21, Employer shall pay to Executive (i) a severance benefit
equal to Executive’s then applicable Base Compensation for a period of twelve
(12) months following the termination of employment if the termination takes
place during the Initial Term, or a severance benefit equal to Executive’s then
applicable Base Compensation for a period of nine (9) months following the
termination of employment if the termination takes place after the Initial
Term
(such twelve- or nine-month period, as the case may be, the “Applicable
Severance Period”),
and
(ii) an amount equal to fifty percent (50%) of the Incentive Compensation
Target(s), if any, applicable for the calendar year ending during the Applicable
Severance Period (collectively, the “No
Cause/Good Reason Termination Fee”).
In
addition, all unvested restricted stock, stock options and any other
equity-based compensation arrangements shall vest, and all stock options and
other equity-based compensation arrangements that must be exercised shall be
exercisable in accordance with the applicable award agreement. On or before
March 15 of the calendar year following the calendar year in which Executive’s
employment with Employer is terminated, Employer shall calculate the amount
of
Incentive Compensation Executive would have received had Executive remained
employed by Employer for the entire applicable calendar year. To the extent
that
the amount of the Incentive Compensation Executive would have received had
Executive remained employed by Employer for the entire applicable calendar
year
is in excess of 50% of the Incentive Compensation Target for that year (the
“Overage
Amount”),
Employer shall then promptly pay to Executive the Overage Amount. No Overage
Amount shall be payable in respect of years following the year in which
Executive’s employment with Employer is terminated.
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(c) In
the
event Employer terminates Executive’s employment for Cause, then, in addition to
the benefits provided for under Sections 11(a)(i) and 11(a)(ii), all unvested
stock options and any other equity-based compensation arrangements shall be
terminated and all vested stock options shall be exercisable in accordance
with
the applicable award agreement.
(d) In
the
event Executive terminates his employment without Good Reason, then, in addition
to the benefits provided for under Sections 11(a)(i) and 11(a)(ii), all unvested
stock options and any other equity-based compensation arrangements shall be
terminated and all vested stock options shall be exercisable in accordance
with
the applicable award agreement.
(e) For
purposes of this Agreement, Executive shall be considered to have “Good
Reason”
to
terminate his employment if, without his express written consent (except as
contemplated by this Agreement or in connection with the termination of his
employment voluntarily by Executive, by Employer for Cause, or under the
circumstances described in Section 13 hereof), (i) the responsibilities of
Executive are substantially reduced or altered, (ii) Executive’s Base
Compensation is reduced without his consent, or (iii) Executive’s offices are
relocated anywhere other than within a fifty (50) mile radius of his office
in
McLean, Virginia; provided,
however,
that if
Executive terminates this Agreement for one or more of the reasons stated in
clauses (i) or (ii), Employer shall have a period of thirty (30) business days
after actual receipt written notice of Executive’s assertion of Good Reason to
cure the basis for such assertion, and, in the event of cure (or the
commencement of steps reasonably designed to result in prompt cure), the
assertion of Good Reason shall be null and void.
(f) For
purposes of this Agreement, Employer shall have “Cause”
to
terminate Executive’s employment hereunder upon (i) the continued, willful and
deliberate failure of Executive to perform his duties in a manner substantially
consistent with the manner prescribed by the Chief Executive Officer (other
than
any such failure resulting from his incapacity due to physical or mental
illness), (ii) the engaging by Executive in misconduct materially and
demonstrably injurious to Employer, (iii) the conviction of Executive of
commission of a felony, whether or not such felony was committed in connection
with Employer’s business, or (iv) the circumstances described in Section 13
hereof, in which case the provisions of Section 13 shall govern the rights
and
obligations of the parties; provided,
however,
that if
Employer terminates this Agreement for one or more of the reasons stated in
clauses (i) or (ii), Executive shall have a period of thirty (30) business
days
after actual receipt written notice of Employer’s assertion of Cause to cure the
basis for such assertion, and, in the event of cure (or the commencement of
steps reasonably designed to result in prompt cure), the assertion of Cause
shall be null and void.
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(g) Notwithstanding
any other provision hereof, Executive shall not be entitled to receive any
payment under Section 11 or 12 of this Agreement that is treated as “deferred
compensation” within the meaning of Section 409A of the Code and the regulations
thereunder prior to the time such payment is permitted to be made under Section
409A(a)(2)(B) of the Code.
12. CHANGE
IN CONTROL.
(a) All
unvested restricted stock, stock options and any other equity-based compensation
arrangements theretofore granted to Executive shall vest in full on the date
of
a “Change in Control” (as defined in Section 12(c) below).
(b) In
the
event that Employer terminates Executive’s employment with Employer without
Cause within twelve months after a “Change in Control” (as defined in Section
12(c) below), or if Executive terminates his employment with Employer for Good
Reason (in accordance with Sections 11(e) and 11(f) above) within twelve months
after a Change in Control, then, in addition to the benefits provided for under
Sections 11(a)(i) and 11(a)(ii), Employer shall pay to Executive a severance
benefit equal to (i) Executive’s then applicable annual Base Compensation for
the Applicable Severance Period and (ii) an amount equal to one hundred percent
(100%) of the Incentive Compensation Target(s), if any, applicable during the
calendar year ending during the Applicable Severance Period. The severance
benefit shall be payable in Termination Fee Installment Payments; that is,
in
equal monthly installments over the Applicable Severance Period (as defined
in
Section 11(b)) with
the
first payment due within five business days after the date of Executive’s
termination of employment. In addition, all stock options and other equity-based
compensation arrangements that must be exercised shall be exercisable in
accordance with the terms of the applicable award agreement.
(c) For
purposes of this Agreement, “Change
in Control”
shall
mean an occurrence of any of the following events:
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(i)
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an
acquisition (other than directly from Employer) of any voting securities
of Employer (the “Voting
Securities”)
by any “person or group” (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange
Act”))
other than an employee benefit plan of Employer, immediately after
which
such person or group has “Beneficial Ownership” (within the meaning of
Rule 13d-3 under the Exchange Act) of more than fifty percent (50%)
of the
combined voting power of Employer’s then outstanding Voting Securities;
or
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(ii)
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the
consummation of (A) a merger, consolidation or reorganization involving
Employer, unless the company resulting from such merger, consolidation
or
reorganization (the “Surviving
Corporation”)
shall adopt or assume this Agreement and the stockholders of Employer
immediately before such merger, consolidation or reorganization own,
directly or indirectly immediately following such merger, consolidation
or
reorganization, at least fifty percent (50%) of the combined voting
power
of the Surviving Corporation in substantially the same proportion
as their
ownership immediately before such merger, consolidation or reorganization,
(B) a complete liquidation or dissolution of Employer, or (C) a sale
or
transfer of all or substantially all of the assets of
Employer.
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(d) In
the
event that, as a result of payments to or for the benefit of Executive under
this Agreement or otherwise in connection with a Change in Control, any state,
local or federal taxing authority imposes any taxes on Executive that would
not
be imposed but for the occurrence of a Change in Control, including any excise
tax under Section 4999 of the Internal Revenue Code and any successor or
comparable provision, then, in addition to the benefits provided for under
Sections 11(a)(i) and 11(a)(ii) and under Sections 12(a) and 12(b), Employer
(including any successor to Employer) shall pay to Executive at the time any
such tax becomes payable an amount equal to the amount of any such tax imposed
on Executive.
13. DISABILITY;
DEATH.
(a) If,
prior
to the expiration or termination of the Employment Term, Executive shall be
unable to perform his duties by reason of disability or impairment of health
for
at least six consecutive calendar months, Employer shall have the right to
terminate Executive’s employment on account of disability by giving written
notice to Executive to that effect, but only if at the time such notice is
given
such disability or impairment is still continuing. In the event of a dispute
as
to whether Executive is disabled within the meaning of this Section 13(a),
either party may from time to time request a medical examination of Executive
by
a doctor selected by Employer, and the written medical opinion of such doctor
shall be conclusive and binding upon the parties as to whether Executive has
become disabled and the date when such disability arose. The cost of any such
medical examination shall be borne by Employer. If Employer terminates
Executive’s employment on account of disability, then, in addition to the
benefits provided for under Sections 11(a)(i) and 11(a)(ii), all unvested stock
options and any other equity-based compensation arrangements shall be
terminated, and all vested stock options shall be exercisable in accordance
with
the terms of the applicable award agreement.
(b) If,
prior
to the expiration or termination of the Employment Term, Executive shall die,
then, in addition to the benefits provided for under Sections 11(a)(i) and
11(a)(ii), the Employment Term shall terminate without further notice. In such
an event, all unvested stock options and any other equity-based compensation
arrangements shall be terminated, and all vested stock options shall be
exercisable in accordance with the terms of the applicable award agreement.
(c) Nothing
contained in this Section 13 shall impair or otherwise affect any rights and
interests of Executive under any insurance arrangements, death benefit plan
or
other compensation plan or arrangement of Employer which may be adopted by
the
Board.
14. LAW
APPLICABLE.
This
Agreement shall be governed by and construed pursuant to the laws of the
Commonwealth of Virginia, without giving effect to conflicts of laws
principles.
15. NOTICES.
Any
notices required or permitted to be given pursuant to this Agreement shall
be
sufficient, if in writing and sent by certified or registered mail, return
receipt requested, to the residence, listed on the signature page of this
Agreement, in the case of Executive, and to 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000, Attention: Chief Executive Officer, in the case of
Employer.
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16. ASSIGNMENT,
ETC.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective legal representatives, heirs, assignees and/or successors
in interest of any kind whatsoever; provided,
however,
that
Executive acknowledges and agrees that he cannot assign or delegate any of
his
rights, duties, responsibilities or obligations hereunder to any other person
or
entity. Employer may assign its rights under this Agreement to any affiliate
of
Employer or to any entity upon any sale of all or substantially all of the
assets of Employer, or upon any merger or consolidation of Employer with or
into
any other entity, provided
that
such assignment shall not relieve Employer of its obligations hereunder without
the written consent of Executive.
17. ENTIRE
AGREEMENT; MODIFICATIONS.
This
Agreement constitutes the entire final agreement between the parties with
respect to, and supersedes any and all prior agreements between the parties
hereto both oral and written concerning, the subject matter hereof and may
not
be amended, modified or terminated except by a writing duly signed by the
parties hereto.
18. SEVERABILITY.
If any
provision of this Agreement shall be held to be invalid or unenforceable, and
is
not reformed by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision and shall not in any way
affect or render invalid or unenforceable any other provision of this Agreement,
and this Agreement shall be carried out as if such invalid or unenforceable
provision were not contained herein.
19. NO
WAIVER.
A
waiver of any breach or violation of any term, provision or covenant contained
herein shall not be deemed a continuing waiver or a waiver of any future or
past
breach or violation. No oral waiver shall be binding. The failure of a party
to
insist upon strict adherence to any term of this Agreement on one or more
occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
20. ARBITRATION.
(a) Agreement
to Arbitrate.
In the
event of differences between Employer and Executive arising out of or relating
to his employment with Employer or the termination of that employment, Executive
and Employer mutually agree to arbitration. Executive understands that his
assent to mandatory arbitration is a condition of employment and continued
employment. Any claim or controversy that arises out of or relates to this
Agreement or the breach of it, as well as all other claims made arbitrable
by
this Agreement, will be settled by arbitration in the Commonwealth of Virginia
in accordance with the rules of the American Arbitration Association. Judgment
upon the award rendered may be entered in any court possessing jurisdiction
of
arbitration awards. A request by a party to a court for interim measures or
specific performance necessary to preserve a party’s rights and remedies for
resolution pursuant to this Section 20 shall not be deemed a waiver of the
agreement to arbitrate. The parties, their representatives, other participants
and arbitrator shall hold the existence, content and result of the arbitration
in confidence.
(b) Covered
Claims.
Except
as otherwise provided in this Agreement, Executive and Employer hereby consent
to the resolution by arbitration of all claims or controversies for which a
court otherwise would be authorized by law to grant relief, in any way arising
out of, relating to, or associated with Executive’s employment with Employer or
its termination (“Claims”)
that
Employer may have against Executive or that Executive may have against Employer
or against its officers, directors, employees, or agents, in their capacity
as
such or otherwise. The Claims covered by this Agreement include, but are not
limited to: claims for discrimination based on race, sex, religion, national
origin, age, marital status, handicap, disability, or medical condition; claims
for benefits, except as excluded in the following paragraph, and claims for
violation of any federal, state, or other governmental constitution, statute,
ordinance, or regulation (including but not limited to claims arising under
Title VII of the Civil Rights Act, the Americans with Disabilities Act, the
Age
Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor
Standards Act, and Employee Retirement Income Security Act). Additionally,
any
and all issues of arbitrability (whether a claim is covered by this Agreement)
will be decided by the arbitrator(s) and not a court.
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9 of
11
(c) Claims
Not Covered.
This
agreement to arbitrate does not apply to or cover claims for workers’
compensation benefits; claims for unemployment compensation benefits; claims
by
Employer for injunctive and/or other equitable relief for breach of
Section 7 or for unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information; and claims based upon
an employee pension or benefit plan, the terms of which contain an arbitration
or other non-judicial dispute resolution procedure, in which case the provisions
of such plan shall apply.
21. COMPLIANCE
WITH SECTION 409A.
Because
the parties hereto intend that any payment under this Agreement shall be paid
in
compliance with Section 409A of the Code (“Section
409A”)
and
all regulations, guidance and other interpretative authority thereunder, such
that there will be no adverse tax consequences, interest or penalties as a
result of such payments, the parties hereby agree to modify the timing (but
not
the amount) of any payment hereunder to the extent necessary to comply with
Section 409A and avoid application of any taxes, penalties or interest
thereunder. Consequently, notwithstanding any provision of this Agreement to
the
contrary, if Executive is a “specified employee” as defined in Section 409A,
Executive shall not be entitled to any payments upon Date of Termination until
the earlier of (i) the date which is six (6) months after Date of Termination
for any reason other than death, or (ii) the date of Executive’s death. Any
amounts otherwise payable to Executive following Date of Termination that are
not so paid by reason of this Section 21 shall be paid as soon as practicable
after the date that is six (6) months after Date of Termination (or, if earlier,
the date of Executive’s death). The provisions of this Section 21 shall only
apply if, and to the extent, required to comply with Section 409A in a manner
such that Executive is not subject to additional taxes and/or penalties under
Section 409A.
22. COUNTERPARTS.
This
Agreement may be executed in counterparts, each of which shall be an original,
but all of which together shall constitute one and the same instrument, and
it
shall not be necessary in making proof of this agreement to account for all
such
counterparts.
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10
of 11
IN
WITNESS WHEREOF,
the
undersigned have hereunto set their hands to this Agreement on the day and
year
first above written.
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By:
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/s/
Xxxxxx X. Xxxxxxx
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|
Name:
Xxxxxx X. Xxxxxxx
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|
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Title:
Chairman and Chief Executive Officer
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|
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EXECUTIVE
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|
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Name:
Xxxxxx Xxxxxxxx
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