EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), effective this 16th day of
June, is entered into by and between The KEYW Corporation, a Maryland
corporation with its principal place of business at 0000 Xxxxxx Xxxx, Xxxxx X,
Xxxxxxx, Xxxxxxxx 00000 (the “Company”), and Xxxx Xxxxxxx, residing at 00000
Xxxxx Xxxx, Xxxxx Xxxxxx, XX 00000 (the “Employee”).
WHEREAS,
Company and Employee are parties to an Employment Agreement dated June 1, 2009,
which both parties desire to terminate effective as of the date hereof and
replace in its entirety with this Agreement.
WHEREAS,
the Company became a wholly-owned subsidiary of The KEYW Holding Corporation, a
Maryland corporation (“HoldCo”), as a result of a corporate reorganization
effected on December 29, 2009.
WHEREAS,
the Company desires to retain the Employee’s services for a specified period of
time as provided herein, and the Employee desires to be employed by the
Company. As used herein, the term “KEYW” shall include the Company
and all entities now or hereafter controlling, controlled by or under common
control with the Company, such term to HoldCo.
NOW
THERFORE, in consideration of the mutual covenants and promises contained herein
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the parties agree as follows:
1. Term of
Employment. The Company hereby agrees to employ the Employee,
and the Employee hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on the first date above (the
“Commencement Date”), and ending on August 3, 2012 (such period, as it may be
extended, the “Employment Period”), unless sooner terminated in accordance with
the provisions of Section 3. This term of employment is not meant to
imply that the Employee should seek other employment once the Employment Period
has been satisfied. It is the intention of the Company to retain all
employees who wish to make a contribution to the success of the
Company. For purposes of clarity, if Executive’s employment continues
after the expiration of the Employment Period, his employment shall be at
will.
2. Title; Capacity;
Salary.
2.1 The
Employee agrees to the title of Executive Vice President, Chief Financial
Officer and shall perform all duties and responsibilities associated with such
title, and such other duties as may, from time to time, be designated by the
Board of Directors of the Company. In exchange for such performance,
HoldCo agrees to pay the Employee an initial base salary of $225,014.00 per
year, subject to the approval of the Board of Directors of the Company, who may,
from time to time, alter this base salary, plus other benefits currently
provided to Employee including but not limited to vacation, health insurance and
officers and directors liability insurance. In addition, the Company
shall reimburse the Employee for all reasonable, ordinary and necessary
business, travel or entertainment expenses incurred during the Employment Period
in the performance of his services hereunder in accordance with the policies of
the Company as they are from time to time in effect. Except as
provided in Section 3.3, in the event of a consolidation, KEYW will continue to
employ the Employee pursuant to this Agreement, and Employee shall work for KEYW
in a similar capacity as before the consolidation.
2.2 Upon
the occurrence of a Change of Control (as defined in Section 4.4), KEYW or its
successor in interest shall pay to the Employee in immediately available funds a
cash payment equal to two (2) times (the total of the Employee’s current base
salary plus the greater of (the total cash bonuses paid during the last 24
months/2) or (current year’s target annual incentive opportunity)) subject to
Section 4.3 regarding executing a release.
3. Termination of
Employment. The employment of the Employee by the Company
shall terminate upon the occurrence of any of the following:
3.1 By
the Company without Cause (as defined below), on sixty (60) days prior written
notice to the Employee;
3.2 At
the election of the Company, for Cause (as defined below), immediately upon
written notice by the Company to the Employee, which notice shall identify the
Cause upon which the termination is based. For the purposes of this
Section 3.2, “Cause” shall mean (a) a good faith finding by the
Company that (i) the Employee has failed to perform his or her reasonably
assigned duties and has failed to remedy such failure within 10 days following
written notice from the Company to the Employee notifying him or her of such
failure, or (ii) the Employee has engaged in dishonesty, gross negligence
or misconduct; (b) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to any crime involving any
felony; (c) the Employee has breached fiduciary duties owed to KEYW or has
materially breached the terms of this Agreement or any other agreement between
the Employee and KEYW; or (d) the failure of the Employee to maintain his or her
security clearance if such clearance is necessary to perform the duties assigned
hereunder;
3.3 At
the election of the Employee, on sixty (60) days prior written notice to the
Company or immediately upon written notice to the Company in the event the
Company fails to remedy any material breach of this Agreement within ten (10)
days following written notice from the Employee to the Company notifying it of
such breach;
3.4 Upon
the death or disability of the Employee. As used in this Agreement,
the term “disability” shall mean the inability of the Employee, due to a
physical or mental disability, for a period of 90 days, whether or not
consecutive, during any 360-day period to perform the services contemplated
under this Agreement. A determination of disability shall be made by
a physician satisfactory to both the Employee and the Company, provided that if
the Employee and the Company do not agree on a physician, the Employee and the
Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
parties; or
3.5 Upon
the mutual written agreement of the Employee and the Company to terminate
Employee’s employment.
4. Effect of
Termination.
4.1 At-Will
Employment. If the Employment Period expires pursuant to
Section 1 hereof, then, unless KEYW notifies the Employee to the contrary, the
Employee shall continue his or her employment on an at-will basis following the
expiration of the Employment Period. Such at-will employment
relationship may be terminated by either party at any time and shall not be
governed by any of the terms of this Agreement, except that Sections 5 and 6
herein shall survive termination and shall be binding on and enforceable against
the Employee during and after the term of any at-will employment as described in
said Sections.
4.2 Termination for Cause, Upon
Mutual Election or at the Election of the Employee, or at
Death. In the event that Employee’s employment is terminated
for Cause, upon Employee’s death, or upon mutual election by Employee and the
Company, KEYW shall have no further obligations under this Agreement other than
to pay to Employee salary and accrued vacation through the last day of
Employee’s actual employment by the Company.
4.3 Voluntary Termination by the
Company, or for Disability. In the event the Employee’s
employment is terminated solely by the Company without Cause, or due to the
Employee’s disability, the Company shall pay to the Employee the compensation
and benefits otherwise payable to him or her through the last day of his or her
actual employment by the Company or through the remainder of his Employment
Period, whichever is greater, and such other payments as expressly provided
herein or in any written policy of the Company. Notwithstanding the
foregoing, the Company shall not be required to make payments under this Section
4.3 if the Employee has breached any of the provisions of Sections 5 or 6,
inclusive of all subsections. Further, subject to any overriding
laws, the Company shall not be required to provide health care, dental,
disability or life insurance benefits otherwise receivable by Employee if
Employee is actually covered or becomes covered by an equivalent benefit (at the
same or lesser cost to Employee, if any) from another source. Any
such benefit made available to Employee shall be reported to the
Company. In consideration of the salary continuation severance
payments described above, to which severance payments Employee would not
otherwise be entitled, and as a precondition to Employee becoming entitled to
such severance payment under this Agreement, Employee agrees to execute and
deliver to the Company within twenty-one (21) days after his date of termination
a waiver and release agreement in a standard form acceptable to the Company,
which form will be provided to Employee by Company within three days of his date
of termination (the “Release”, attached hereto as Schedule A). If
Employee fails to execute and deliver the Release within twenty-one (21) days
after the applicable date of termination, or if Employee revokes such Release as
provided therein, the Company shall have no obligation to provide the severance
payment described above. In any case in which the Release (and the
expiration of any revocation rights provided therein) could only become
effective in a particular tax year of Employee, any payment(s) conditioned on
execution of the release shall be made within ten (10) days after the Release
becomes effective and such revocation rights have lapsed. In any case
in which the Release (and the expiration of any revocation rights provided
therein) could become effective in one of two (2) taxable years of Employee
depending on when Employee executes and delivers the Release, any payment
conditioned on execution of the Release shall be made within ten (10) days after
the Release becomes effective and such revocation rights have lapsed, but not
earlier than the first business day of the later of such tax
years.
4.4 Termination On or Following
a Change of Control. Employee will be entitled to receive
compensation and severance benefits through the remainder of the Employment
period or for twelve (12) months, whichever is greater, if employment is
terminated within one (1) year following the Change of Control (as defined
below). This qualifying termination is if the Company terminates the
employee without cause or at-will by the employee for Good Reason (as defined
below). The Employee will continue to have health care, dental,
disability or life insurance benefits for three years following the Change of
Control. Further, subject to any overriding laws, the Company shall
not be required to provide health care, dental, disability or life insurance
benefits otherwise receivable by Employee if Employee is actually covered or
becomes covered by an equivalent benefit (at the same or lesser cost to
Employee, if any) from another source. Any such benefit made
available to Employee shall be reported to the Company. Stock options
will remain exercisable for a period of one (1) year following termination
(unless such options have terminated or been cashed out in connection with the
Change of Control), and any outstanding equity awards shall vest immediately
upon the Change of Control.
(a) In
the event that it is determined that any payment or distribution of any type to
or for the benefit of the Employee made by the Company, by any of its
affiliates, by any person who acquires ownership or effective control or
ownership of a substantial portion of the Company’s assets (within the meaning
of section 280G of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder (the “Code”)) or by any affiliate of such person, whether
paid or payable or distributed or distributable pursuant to the terms of an
employment agreement or otherwise (the “Total Payments”), such that the Total
Payments would be subject to the excise tax imposed by section 4999 of the Code
or any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest or penalties, are collectively referred to as
the “Excise Tax”) then (i) if the Total Payments exceed the safe harbor
threshold by less than 10%, the payments will be reduced to the safe harbor
amount or (ii) if the Total Payments exceed the safe harbor threshold by more
than 10%, then Employee shall be entitled to receive an additional payment (an
“Excise Tax Restoration Payment”) in an amount that shall fund the payment by
Employee of any Excise Tax on the Total Payments as well as all income taxes
imposed on the Excise Tax Restoration Payment, any Excise Tax imposed on the
Excise Tax Restoration Payment and any interest or penalties imposed with
respect to taxes on the Excise Tax Restoration or any Excise Tax.
(b) For
the purposes of this Section 4.4, “Change of Control” means the occurrence of
any of (i) an acquisition after the date hereof by an individual or legal entity
or “group” (as described in Rule 13d-5(b)(1) promulgated under the Securities
Exchange Act of 1934, as amended) of in excess of 50% of the voting securities
of KEYW or HoldCo, (ii) the dissolution or liquidation of KEYW or HoldCo or a
merger, consolidation, or reorganization of KEYW or HoldCo with one or more
other entities in which neither KEYW nor HoldCo is the surviving entity, unless
the holders of KEYW or HoldCo’s voting securities immediately prior to such
transaction continue to hold at least 51% of such securities following such
transaction, (iii) the consolidation or sale of all or substantially all of the
assets of KEYW and/or HoldCo in one or a series of related transactions or (iv)
the “completion” or closing by KEYW or HoldCo of an agreement to which KEYW or
HoldCo is a party or by which it is bound, providing for any of the events set
forth above in clauses (i), (ii) or (iii).
(c) For
purposes of this Section 4.4, Good Reason means, unless otherwise agreed to in
writing by Employee, (i) a reduction in Employee’s base salary; (ii) a material
diminution in Employee’s title, authority, responsibilities or duties, other
than in connection with future reorganizations and restructurings; (iii) a
relocation of Employee’s primary place of employment to a location more than ten
(10) miles further from Employee’s primary residence than the current location
of the Company’s offices; or (iv) any other material breach of the terms of this
Agreement or any other agreement which is not cured within ten (10) days after
Employee’s delivery of a written notice of such breach to the
Company. In order to invoke a termination for Good Reason, Employee
must deliver a written notice of such breach to the Company within sixty (60)
days of the occurrence of the breach, and the Company shall have thirty (30)
days to cure the breach. In order to terminate her employment, if at
all, for Good Reason, Employee must terminate employment within thirty (30) days
of the end of the cure period if the breach has not been cured.
4.5 Survival. The
provisions of Sections 5 and 6 shall survive the termination of this
Agreement.
5. Non-Competition and
Non-Solicitation.
5.1 Restricted Activities During
Employment. During the period of Employee’s employment with
KEYW, Employee shall not, directly or indirectly, on his or her own behalf or as
an individual proprietor, partner, stockholder, owner, officer, employee,
director, consultant, agent, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one percent (1%)
of the total outstanding stock of a publicly-held company), do any of the
following:
(a) Offer
to provide or provide to any Customer products or services which compete with
the products and services offered by KEYW;
(b) Interfere
with or disrupt, or attempt to interfere with or disrupt, the relationship of
KEYW with any Customer, vendor, supplier, prime contractor, subcontractor or
partner;
(c) Solicit,
offer to hire or hire any employee, consultant, contractor or agent of KEYW, or
otherwise induce any of the foregoing persons to discontinue their employment or
business relationship with KEYW; or
(d) Solicit
or divert, or attempt to solicit or divert, the business or patronage (with
respect to products or services of the kind or type developed, produced,
marketed, furnished or sold by KEYW) of any Customer or Prospective Customer of
KEYW.
For
purposes of this Section 5.1, the term “Customer” shall mean any person, firm,
organization, entity, government or governmental division, department or agency
to which KEYW provided products or services at any time during the Employee’s
employment, including the Employee’s employment prior to any acquisition by
KEYW.
For
purposes of this Section 5.1, the term “Prospective Customer” shall mean any
person, firm, organization, entity, government or governmental division,
department or agency which has an outstanding bid or proposal from KEYW, or
which was contacted by an employee of KEYW concerning products or services
offered by KEYW during the six (6) months preceding termination of the
Employee’s employment for purposes of soliciting business.
5.2 Restricted Activities After
Termination of Employment. During the one-year period following
Employee’s expiration or termination of employment with KEYW, Employee shall
not, directly or indirectly, on his or her own behalf or as an individual
proprietor, partner, stockholder, owner, officer, employee, director,
consultant, agent, joint venturer, investor, lender, or in any other capacity
whatsoever (other than as the holder of not more than one percent (1%) of the
total outstanding stock of a publicly-held company) solicit, offer to hire or
hire any current or former employee, consultant, contractor or agent of KEYW or
otherwise induce any of the foregoing persons to discontinue their employment or
business relationship with KEYW.
5.3 External Employment.
During the period of Employee’s employment with KEYW, Employee shall be
prohibited from engaging in external employment without express permission from
KEYW. By way of example, and not limitation, such external employment
shall include self-employment, consulting, and engagement by firms conducting
business unrelated to the business of KEYW.
5.4 Interpretation. If
any restriction set forth in this Section 5 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
6. Proprietary Information and
Developments.
6.1 Proprietary
Information.
(a) The
Employee agrees that all information, whether or not in writing, of a private,
secret or confidential nature concerning KEYW’s business, business relationships
or financial affairs (collectively, “Proprietary Information”) is and shall be
the exclusive property of KEYW. By way of illustration, but not
limitation, Proprietary Information may include inventions, products, processes,
methods, techniques, formulas, compositions, compounds, projects, developments,
plans, research data, clinical data, financial data, personnel data, hardware,
software and related designs, product costs, specifications and pricing, bid
practices and procedures, contract costs and pricing, the terms and conditions
of any joint venture, strategic partnership and other contractual arrangements,
customer and supplier lists, and contacts at or knowledge of customers or
prospective customers of KEYW. The Employee will not disclose any
Proprietary Information to any person or entity other than employees of KEYW or
use the same for any purposes (other than in the performance of his or her
duties as an employee of KEYW) without written approval by an officer of the
Company, either during or after his or her employment with the Company, unless
and until such Proprietary Information has become public knowledge without fault
by the Employee.
(b) The
Employee agrees that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Employee or others, which shall come into his or her
custody or possession, shall be and are the exclusive property of KEYW to be
used by the Employee only in the performance of his or her duties for
KEYW. All such materials or copies thereof and all tangible property
of KEYW in the custody or possession of the Employee shall be delivered to the
Company, upon the earlier of (i) a request by KEYW or (ii) termination
of his or her employment. After such delivery, the Employee shall not
retain any such materials or copies thereof or any such tangible
property.
(c) The
Employee agrees that his or her obligation not to disclose or to use information
and materials of the types set forth in paragraphs (a) and (b) above, and
his or her obligation to return materials and tangible property, set forth in
paragraph (b) above, also extends to such types of information, materials
and tangible property of customers of KEYW or suppliers to KEYW or other third
parties who may have disclosed or entrusted the same to KEYW or to the
Employee.
6.2 Developments.
(a) The
Employee will make full and prompt disclosure to the Company of all inventions,
improvements, discoveries, methods, processes, developments, software, and works
of authorship, whether copyrightable, patentable or not, which are created,
made, conceived or reduced to practice by him or her or under his or her
direction or jointly with others during his or her employment by KEYW, whether
or not during normal working hours or on the premises of KEYW (all of which are
collectively referred to in this Agreement as “Developments”).
(b) To
the extent that any Developments do not qualify as works made for hire, the
Employee hereby irrevocably assigns to the Company (or any Affiliate, person or
entity designated by the Company) all his or her right, title and interest in
and to all Developments and all related patents, patent applications, copyrights
and copyright applications, trade secrets, trademarks and all other proprietary
rights now or hereafter existing therein. However, this
paragraph (b) shall not apply to Developments which do not relate to the
present or planned business or research and development of KEYW and which are
made and conceived by the Employee outside the scope of his or her employment,
not during normal working hours, not on KEYW’s premises and not using KEYW’s
tools, devices, equipment or Proprietary Information. The Employee
understands that, to the extent this Agreement shall be construed in accordance
with the laws of any state which precludes a requirement in an employee
agreement to assign certain classes of inventions made by an employee, this
paragraph (b) shall be interpreted not to apply to any invention which a
court rules and/or the Company agrees falls within such classes. The
Employee also hereby waives all claims to moral rights in any
Developments.
(c) The
Employee agrees to cooperate fully with KEYW, both during and after his or her
employment, with respect to the procurement, maintenance and enforcement of
copyrights, patents and other intellectual property rights (both in the United
States and foreign countries) relating to Developments. The Employee
shall sign all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments, assignments of
priority rights, and powers of attorney, which KEYW may deem necessary or
desirable in order to protect its rights and interests in any
Development. The Employee further agrees that if KEYW is unable,
after reasonable effort, to secure the signature of the Employee on any such
papers, any executive officer of the Company shall be entitled to execute any
such papers as the agent and the attorney-in-fact of the Employee, and the
Employee hereby irrevocably designates and appoints each executive officer of
the Company as his or her agent and attorney-in-fact to execute any such papers
on his or her behalf, and to take any and all actions as KEYW may deem necessary
or desirable in order to protect its rights and interests in any Development,
under the conditions described in this sentence.
6.3 United States Government
Obligations. The Employee acknowledges that KEYW from time to
time may have agreements with other parties or with the United States
Government, or agencies thereof, which impose obligations or restrictions on
KEYW regarding inventions made during the course of work under such agreements
or regarding the confidential nature of such work. The Employee
agrees to be bound by all such obligations and restrictions which are made known
to the Employee and to take all appropriate action necessary to discharge the
obligations of KEYW under such agreements.
7. Other
Agreements. The Employee represents that there are no
contracts to assign inventions between any person or entity and the
Employee. The Employee further represents that (a) the Employee is
not obligated under any consulting, employment or other agreement which would
affect KEYW’s rights under this Agreement, (b) there is no action, investigation
or proceeding, pending or threatened, or any basis therefore known to him
involving the Employee’s prior employment or any consultancy or the use of any
information or techniques alleged to be proprietary to any former employer, and
(c) the performance of the Employee’s duties as an employee of the Company will
not breach or constitute a default under any agreement to which the Employee is
bound, including, without limitation, any agreement limiting the use or
disclosure of proprietary information during the Employee’s employment by the
Company. The Employee will not, in connection with the Employee’s
employment by the Company, use or disclose to the Company any confidential,
trade secret or other proprietary information of any previous employer or other
person to which the Employee is not lawfully entitled. Any agreement
to which the Employee is a party with any prior employer or relating to
nondisclosure, non-competition or non-solicitation of employees, customers,
prospective customers, vendors or other parties is listed on Exhibit A attached
hereto.
8. Section
409A. To the extent Employee would be subject to the
additional 20% tax imposed on certain deferred compensation arrangements
pursuant to Section 409A of the Code as a result of any provision of this
Agreement, such provision shall be deemed amended to the minimum extent
necessary to avoid application of such tax and preserve to the maximum extent
possible the original intent and economic benefit to the Employee and the
Company, and the parties shall promptly execute any amendment reasonably
necessary to implement this Section 8.
8.1 For
purposes of Section 409A, Employee’s right to receive installment payments
pursuant to this Agreement including, without limitation, each severance payment
and COBRA continuation reimbursement shall be treated as a right to receive a
series of separate and distinct payments.
8.2 Employee
will be deemed to have a date of termination for purposes of determining the
timing of any payments or benefits hereunder that are classified as deferred
compensation only upon a “separation from service” within the meaning of Code
Section 409A.
8.3 Notwithstanding
any other provision of this Agreement to the contrary, if at the time of
Employee’s separation from service, (i) Employee is a specified employee (within
the meaning of Section 409A and using the identification methodology selected by
the Company from time to time), and (ii) the Company makes a good faith
determination that an amount payable on account of such separation from service
to Employee constitutes deferred compensation (within the meaning of Section
409A) the payment of which is required to be delayed pursuant to the six-month
delay rule set forth in Section 409A in order to avoid taxes or penalties under
Section 409A (the “Delay Period”), then the Company will not pay such amount on
the otherwise scheduled payment date but will instead pay it in a lump sum on
the first business day after such six-month period (or upon Employee’s death, if
earlier), together with interest for the period of delay, compounded annually,
equal to the applicable Federal rate for short-term instruments) in effect as of
the dates the payments should otherwise have been provided. To the
extent that any benefits to be provided during the Delay Period is considered
deferred compensation under Code Section 409A provided on account of a
“separation from service”, and such benefits are not otherwise exempt from Code
Section 409A, Employee shall pay the cost of such benefit during the Delay
Period, and the Company shall reimburse Employee, to the extent that such costs
would otherwise have been paid by the Company or to the extent that such
benefits would otherwise have been provided by the Company at no cost to
Employee, the Company’s share of the cost of such benefits upon expiration of
the Delay Period, and any remaining benefits shall be reimbursed or provided by
the Company in accordance with the procedures specified herein.
8.4 (A)
Any amount that Employee is entitled to be reimbursed under this Agreement will
be reimbursed to Employee as promptly as practical and in any event not later
than the last day of the calendar year after the calendar year in which expenses
are incurred, (B) any right to reimbursement or in kind benefits will not be
subject to liquidation or exchange for another benefit, and (C) the amount of
the expenses eligible for reimbursement during any taxable year will not affect
the amount of expenses eligible for reimbursements in any other taxable
year.
8.5 Whenever
a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within thirty (30) days following
the date of termination”), the actual date of payment within the specified
period shall be within the sole discretion of the Company.
9. Miscellaneous.
9.1 Equitable
Remedies. The restrictions contained in this Section 5 and 6
are necessary for the protection of the business and goodwill of KEYW and are
considered by the Employee to be reasonable for such purpose. The
Employee agrees that any breach of Section 5 and 6 is likely to cause KEYW
substantial and irreparable harm for which there is no adequate remedy at law
and therefore, in the event of any such breach, the Employee agrees that KEYW,
in addition to such other remedies which may be available, shall be entitled to
specific performance and other injunctive relief without the need to post a
bond. The Company shall be entitled to recover its reasonable
attorney’s fees in the event that it prevails in such action.
9.2 Notices. Any
notices delivered under this Agreement shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent for
next-business day delivery via a reputable nationwide overnight courier service,
in each case to the address of the recipient set forth in the introductory
paragraph hereto. Either party may change the address to which
notices are to be delivered by giving notice of such change to the other party
in the manner set forth in this Section 9.2.
9.3 Pronouns. Whenever
the context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural, and vice versa.
9.4 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties and cancels and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement, including the Employment Agreement dated June 1, 2009.
9.5 Amendment. This
Agreement may be amended or modified only by a written instrument executed by
both KEYW and the Employee.
9.6 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland. Any action, suit
or other legal matter arising under or relating to any provision of this
Agreement shall be commenced only in a court of the State of Maryland (or, if
appropriate, a federal court located within Maryland), and the Company and the
Employee each consents to the jurisdiction of such a court. THE
COMPANY AND THE EMPLOYEE EACH HEREBY IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING UNDER OR RELATING TO
ANY PROVISION OF THIS AGREEMENT.
9.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective heirs, legal representatives,
successors and permitted assigns. The Company may assign this
Agreement to any Affiliate or to any business or entity with which or into which
the Company may be merged or which may succeed to its assets or
business. The obligations of the Employee are personal and may not be
assigned by him or her.
9.8 Waivers. No
delay or omission by KEYW in exercising any right under this Agreement shall
operate as a waiver of that or any other right. A waiver or consent
given by KEYW on any one occasion shall be effective only in that instance and
shall not be construed as a bar or waiver of any right on any other
occasion.
9.9 Captions. The
captions of the sections of this Agreement are for convenience of reference only
and in no way define, limit or affect the scope or substance of any section of
this Agreement.
9.10 Severability. In
case any provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
9.11 Counterparts. This
Agreement may be executed in two or more counterparts, each and all of which
shall be deemed an original and all of which together shall constitute but the
same instrument.
THE
EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.
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The
KEYW Corporation:
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By:
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/s/ Xxxxxxx X. Xxxxxxxxx
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Title: President
and CEO
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Xxxxxxx
X. Xxxxxxxxx
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EMPLOYEE:
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/s/ Xxxx Xxxxxxx
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Printed
Name of Employee
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Xxxx
Xxxxxxx
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SCHEDULE
A
Release
WAIVER
AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT (this
“Release”) is entered
into as of [______________] (the “Effective Date”), by
_______________________ (“Executive”) in consideration
of severance pay (the “Severance Payment”) provided
to Executive by ________________________, a Maryland corporation (the “Company”), pursuant to Section
_____________ of the Employment Agreement by and between the Company and
Executive (the “Employment
Agreement”).
1. Waiver
and Release. Subject to the
last sentence of the first paragraph of this Section 1, Executive, on his own
behalf and on behalf of his heirs, executors, administrators, attorneys and
assigns, hereby unconditionally and irrevocably releases, waives and forever
discharges the Company and each of its affiliates, parents, successors,
predecessors, and the subsidiaries, directors, owners, members, shareholders,
officers, agents, and employees of the Company and its affiliates, parents,
successors, predecessors, and subsidiaries (collectively, all of the foregoing
are referred to as the “Employer”), from any and all
causes of action, claims and damages, including attorneys’ fees, whether known
or unknown, foreseen or unforeseen, presently asserted or otherwise arising
through the date of his signing of this Release, concerning his employment or
separation from employment. Subject to the last sentence of the first
paragraph of this Section 1, this Release includes, but is not limited to, any
payments, benefits or damages arising under any federal law (including, but not
limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Employee Retirement Income Security Act of 1974, the
Americans with Disabilities Act, Executive Order 11246, the Family and Medical
Leave Act, and the Worker Adjustment and Retraining Notification Act, each as
amended); any claim arising under any state or local laws, ordinances or
regulations (including, but not limited to, any state or local laws, ordinances
or regulations requiring that advance notice be given of certain workforce
reductions); and any claim arising under any common law principle or public
policy, including, but not limited to, all suits in tort or contract, such as
wrongful termination, defamation, emotional distress, invasion of privacy or
loss of consortium. Notwithstanding any other provision of this
Release to the contrary, this Release does not encompass, and Executive does not
release, waive or discharge, the obligations of the Company (a) to make the
payments and provide the other benefits contemplated by the Employment
Agreement, or (b) under any restricted stock agreement, option agreement or
other agreement pertaining to Executive’s equity ownership, or (c) under any
indemnification or similar agreement with Executive.
Executive understands that by signing
this Release, he is not waiving any claims or administrative charges which
cannot be waived by law. He is waiving, however, any right to
monetary recovery or individual relief should any federal, state or local agency
(including the Equal Employment Opportunity Commission) pursue any claim on his
behalf arising out of or related to his employment with and/or separation from
employment with the Company.
Executive further agrees without any
reservation whatsoever, never to xxx the Employer or become a party to a lawsuit
on the basis of any and all claims of any type lawfully and validly released in
this Release.
2. Acknowledgments. Executive is
signing this Release knowingly and voluntarily. He acknowledges
that:
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(a)
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He
is hereby advised in writing to consult an attorney before signing this
Release Agreement;
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(b)
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He
has relied solely on his own judgment and/or that of his attorney
regarding the consideration for and the terms of this Release and is
signing this Release Agreement knowingly and voluntarily of his own free
will;
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(c)
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He
is not entitled to the Severance Payment unless he agrees to and honors
the terms of this Release;
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(d)
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He
has been given at least twenty-one (21) calendar days to consider this
Release, or he or she expressly waives his right to have at least
twenty-one (21) days to consider
this Release;
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(e)
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He
may revoke this Release within seven (7) calendar days after signing it by
submitting a written notice of revocation to the Employer. He
further understands that this Release is not effective or enforceable
until after the seven (7) day period of revocation has expired without
revocation, and that if he or she revokes this Release within the seven
(7) day revocation period, he will not receive the Severance
Payment;
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(f)
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He
has read and understands the Release and further understands that, subject
to the limitations contained herein, it includes a general release of any
and all known and unknown, foreseen or unforeseen claims presently
asserted or otherwise arising through the date of his signing of this
Release that he may have against the Employer;
and
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(g)
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No
statements made or conduct by the Employer has in any way coerced or
unduly influenced him or her to execute this
Release.
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3. No
Admission of Liability. This Release does
not constitute an admission of liability or wrongdoing on the part of the
Employer, the Employer does not admit there has been any wrongdoing whatsoever
against the Executive, and the Employer expressly denies that any wrongdoing has
occurred.
4. Entire
Agreement. There are no
other agreements of any nature between the Employer and Executive with respect
to the matters discussed in this Release Agreement, except as expressly stated
herein, and in signing this Release, Executive is not relying on any agreements
or representations, except those expressly contained in this
Release.
5. Execution. It is not
necessary that the Employer sign this Release following Executive’s full and
complete execution of it for it to become fully effective and
enforceable.
6. Severability. If any provision
of this Release is found, held or deemed by a court of competent jurisdiction to
be void, unlawful or unenforceable under any applicable statute or controlling
law, the remainder of this Release shall continue in full force and
effect.
7. Governing
Law. This Release
shall be governed by the laws of the State of Maryland, excluding the choice of
law rules thereof.
8. Headings. Section and
subsection headings contained in this Release are inserted for the convenience
of reference only. Section and subsection headings shall not be
deemed to be a part of this Release for any purpose, and they shall not in any
way define or affect the meaning, construction or scope of any of the provisions
hereof.
IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day
and year first herein above written.
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EXECUTIVE:
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