AGREEMENT
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This AGREEMENT, dated _________________, is made by and between
(hereinafter referred to as the "Executive") and THE TITAN CORPORATION, a
Delaware corporation.
RECITALS
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A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the recruitment and continuous employment of key
management personnel.
B. The Board of Directors of the Company (the "Board of
Directors") recognizes that, as is the case with many publicly-held
corporations, the possibility of a Change in Control may exist and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders or interfere
with the ability of the Company to recruit qualified executives.
C. The Board of Directors has determined that it is in the best
interest of the Company's stockholders that appropriate steps be taken to
reinforce and encourage the continued dedication of the Executive to the
Executive's assigned duties without distraction in case of potentially
disturbing circumstances arising from the possibility of a Change in Control
of the Company.
D. In order to induce the Executive to continue to provide his
services to the Company and to induce the Executive to give the Executive's
continued attention and dedication to the Executive's assigned duties, the
Company desires to provide the Executive with certain benefits and
inducements, as set forth herein.
E. The Executive covenants to perform the Executive's assigned
duties with continued attention, zeal and dedication.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is
hereby acknowledged, and the Company and the Executive do hereby agree as
follows:
ARTICLE I
DEFINITIONS
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Whenever the following terms are used below in this Agreement, they
shall have the meaning specified below, and no other, unless the context
clearly indicates to
the contrary. The masculine pronoun shall include the feminine and neuter,
and the singular the plural, where the context so indicates.
SECTION 1.1 - AUDITORS.
"Auditors" shall mean Xxxxxx Xxxxxxxx LLP, or an independent
certified public accounting firm that is duly selected by the Board of
Directors and is acceptable to the Executive.
SECTION 1.2 - BOARD OF DIRECTORS.
"Board of Directors" shall have the meaning provided in the second
recital of this Agreement.
SECTION 1.3 - CAUSE.
"Cause" shall mean termination of Executive's employment with the
Company because of (i) conviction of a felony, (ii) theft or embezzlement of
property from the Company or (iii) willful misconduct or willful failure
substantially to perform the duties of his or her position, provided that the
Executive shall have received written notice from the Board of the specific
acts of misconduct or failures to perform and such acts or failure shall have
continued after receipt of such notice.
SECTION 1.4 - CHANGE IN CONTROL.
A "Change in Control" shall be deemed to have occurred in the event
of (i) the acquisition by any Person, together with its affiliates, of
beneficial ownership of capital stock of the Company possessing 25% or more
of the combined voting power of the Company's outstanding capital stock, (ii)
within any two-year period, the majority of the members of the Board were to
be comprised of individuals other than those who were members at the
beginning of such period, unless the new members elected during such period
were approved by two-thirds of the members of the Board still in office who
were members of the Board at the beginning of such two-year period, (iii) all
or substantially all of the Company's assets are sold as an entirety to any
Person or related group of Persons or (iv) the Company is merged with or into
another corporation or another corporation is merged into the Company with
the effect that immediately after such transaction the stockholders of the
Company immediately prior to such transaction hold less than a majority in
interest of the total voting power entitled to vote in the election of
directors, managers or trustees of the entity surviving such transaction.
SECTION 1.5 - CODE.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.6 - COMPANY.
"Company" shall mean The Titan Corporation, a Delaware corporation,
its subsidiaries and affiliates, and any successor to its business, whether
direct or indirect, by
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purchase of securities, merger, consolidation, purchase of all or
substantially all of the Company's assets or otherwise.
SECTION 1.7 - DATE OF TERMINATION.
"Date of Termination" shall mean (i) in the case of termination of
the Executive's employment by the Company for Disability, thirty days after
Notice of Termination is given, provided that the Executive shall not have
returned to the performance of the Executive's assigned duties on a full-time
basis during such thirty-day period; or (ii) in the case of termination of
the Executive's employment by the Company for Cause or termination by the
Executive for Good Reason or termination for any other reason, the date
specified in the Notice of Termination, which date shall not be less than
thirty days after the date such Notice of Termination is given.
SECTION 1.8 - DISABILITY.
"Disability" shall mean absence from performance of assigned duties
for the Company on a full-time basis for six consecutive calendar months as a
result of incapacity due to medically documented physical or mental illness.
SECTION 1.9 - EXCHANGE ACT.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.10 - EXECUTIVE.
"Executive" shall have the meaning provided in the first paragraph
of this Agreement.
SECTION 1.11 - GOOD REASON.
"Good Reason" shall mean the occurrence of any of the following
events without the Executive's express written consent:
(a) the assignment to the Executive of duties inconsistent
with the Executive's position and status as an executive of the Company
immediately prior to a Change in Control or a substantial adverse
alteration in the nature or status of the Executive's title, position,
duties, functions, working conditions or responsibilities as Senior Vice
President of the Company from those in effect immediately prior to a Change
in Control;
(b) relocation of Executive's principal office more than
thirty miles from that in existence immediately prior to a Change in
Control;
(c) a reduction by the Company in the Executive's base salary
or targeted bonuses under the Company's Incentive Plan or other
executive compensation or bonus plan or arrangement as in effect
immediately prior to the
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occurrence of a Change in Control or as the same may be increased from
time to time during the term of this Agreement;
(d) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical,
health and accident, or disability plans in which the Executive was
participating at the time of the Change in Control, the taking of any
action by the Company which would directly or indirectly materially reduce
any of such benefits or deprive the Executive of any material fringe
benefit enjoyed by the Executive at the time of the Change in Control, or
the failure by the Company to provide the Executive with the number of paid
days of personal time to which the Executive is entitled on the basis of
years of service with the Company in accordance with the Company's normal
personal time policy in effect at the time of the Change in Control;
(e) the continuation or repetition, after written notice of
objection from the Executive, of harassing or denigrating treatment
inconsistent with the Executive's position the Company; or
(f) any purported termination of the Executive's employment by
the Company which is not effected according to the requirements of a
Notice of Termination as defined in Section 1.12 herein.
SECTION 1.12 - NOTICE OF TERMINATION.
"Notice of Termination" shall mean a notice, in writing, to the
Executive from the Company or to the Company from the Executive, which
indicates the specific termination provision enumerated in this Agreement
relied upon, and which sets forth in reasonable detail the facts and
circumstances alleged to provide a basis for termination of the Executive's
employment relationship by the Company or by the Executive. Such notice must
be communicated to the Executive in accordance with Section 4.3 herein.
SECTION 1.13 - PERSON.
"Person" shall have the same meaning as it does in Section 3(a)(9)
of the Exchange Act (including the definition of "company" under Section
3(a)(19) of the Exchange Act), including a group and any other arrangement
included as a "Person" under Section 13(d)(3) of the Exchange Act.
SECTION 1.14 - POTENTIAL CHANGE IN CONTROL.
"Potential Change in Control" shall be deemed to have occurred if
the Company enters into an agreement, the consummation of which would result
in the occurrence of a Change in Control.
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SECTION 1.15 - TAX COUNSEL.
"Tax Counsel" shall mean legal counsel, selected by the Auditors,
and which is acceptable to the Executive, for the purpose of rendering legal
advice and services on tax issues arising under this Agreement.
SECTION 1.16 - TERMINATION PERIOD.
"Termination Period" shall mean the period beginning fifteen days
prior to the occurrence of a Change in Control and ending twenty-four (24)
months following a Change in Control.
ARTICLE II
TERM
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This Agreement shall be effective commencing on June 30, 1995 and
shall continue in effect through June 30, 1998 and thereafter shall be
extended annually for additional periods of twelve (12) months unless the
Company provides the Executive with written notice of its intention not to
renew the Agreement no later than ninety (90) days prior to the expiration of
the then existing term; provided, however, if a Change in Control shall have
occurred during the term of this Agreement, then this Agreement shall
continue in effect through the Termination Period.
ARTICLE III
BENEFITS AND COMPENSATION
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SECTION 3.1 - WHEN BENEFITS PAYABLE.
No benefits shall be payable under this Agreement and the
provisions of this Agreement shall be of no force or effect unless there
shall have been a Change in Control or a Potential Change in Control (as
provided in Section 3.4), and the Executive's employment with the Company
shall have been terminated during the Termination Period. If a Change in
Control or a Potential Change in Control (as provided in Section 3.4) has
occurred and the Executive's employment with the Company is terminated during
the Termination Period unless such termination is (i) because of the death of
the Executive, or (ii) by the Executive other than for Good Reason (in which
cases, no benefits are payable under this Agreement), the Executive shall be
entitled to the benefits enumerated in this Article 3, under the conditions
imposed herein.
SECTION 3.2 - BENEFITS UPON DISABILITY.
During any period within the term of this Agreement that the
Executive is or becomes subject to a Disability, the Executive shall continue
to receive the Executive's full base compensation and other benefits at the
rate then in effect until the Executive's employment is terminated pursuant
to Section 1.12 herein. After termination
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for Disability, benefits accruing to the Executive shall be determined in
accordance with the Company's disability policy as in effect immediately prior
to any Change in Control.
SECTION 3.3 - BENEFITS UPON TERMINATION FOR CAUSE.
In the event that the Executive's employment with the Company is
terminated for Cause, the Executive shall receive the Executive's full base
compensation as earned through the Date of Termination at the rate in effect
at the time Notice of Termination is given. Following payment of said amount,
the Company shall have no further obligations to the Executive under this
Agreement.
SECTION 3.4 - BENEFITS UPON TERMINATION OTHER THAN FOR CAUSE OR DISABILITY;
OR TERMINATION FOR GOOD REASON.
In the event that the employment of the Executive shall be
terminated during the Termination Period (i) by the Company for any reason
other than for Cause or Disability or (ii) by the Executive for Good Reason,
then the Executive shall be entitled to receive: (I) the Executive's full
base compensation as earned through the Date of Termination at the rate in
effect at the time Notice of Termination is given plus the pro-rata amount of
the maximum bonus payable to the Executive under the Company's Incentive Plan
or other Executive Bonus Plan then in effect for the fiscal year of the
Notice of Termination; (II) for a 24 month period after such termination
group health insurance coverage for the Executive and his or her dependents
substantially the same as that in effect immediately prior to the Change in
Control but increased to the extent that such benefits were increased
following the Change in Control; and (III) a lump sum payment (the "Lump Sum
Payment") from the Company to the Executive of a dollar amount equal to 200%
of the sum of (x) base salary of the Executive for the twelve-month period
immediately preceding the Change in Control (if the Executive has not been
employed by the Company for twelve months, the applicable amount under this
clause (x) shall be equal to 100% of the annualized base compensation of the
Executive during the period for which the Executive has been employed with
the Company) and (y) 100% of the maximum bonus payable to the Executive under
the Company's Incentive Plan or other executive bonus plan then in effect for
the fiscal year of the Notice of Termination. For purposes of this Section
3.4, if a termination of the Executive's employment occurs prior to
commencement of the Termination Period, but following a Potential Change in
Control in which a Person has entered into an agreement with the Company the
consummation of which will constitute a Change in Control, such termination
shall be deemed to be within the Termination Period and to have been (I) by
the Company without Cause, if the Executive's employment is terminated at the
direction of such Person, or (ii) by the Executive with Good Reason, if the
Executive terminates his employment and the act (or failure to act) which
constitutes Good Reason occurs following such Potential Change in Control and
at the direction of such Person.
SECTION 3.5 - TAX DEDUCTIBILITY OF BENEFIT PAYMENTS.
In the event that any payment or benefit received or to be received
by the Executive in connection with the Change in Control or the termination
of the Executive's employment would not be deductible (in whole or in part)
by the Company
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as a result of the operation of Section 280G of the Code, the amount of the
Lump Sum Payment and other benefits set forth in Section 3.4 shall be reduced
(but not below zero) until no portion of such payments or benefits is not
deductible as a result of Section 280G of the Code. For purposes of this
section, the value of any non-cash benefit or any deferred cash payment to
which the Executive is entitled hereunder shall be determined by the Auditors
in accordance with Sections 280G(d)(3) and 280G(d)(4) of the Code. If such a
reduction is deemed necessary, the nature and extent of such reductions shall
be determined by the Auditors with the advice and assistance of the Tax
Counsel, and such determination shall be binding and conclusive, provided
that the Auditors and Tax Counsel consult with the Executive prior to the
final determination, and use their best efforts to ensure that the final
determination comports with the Executive's wishes to the greatest extent
possible. In connection with such determinations, the Executive shall be
entitled to waive any benefit the receipt of which otherwise would require a
reduction in the amount of other payments or benefits under this Section 3.5.
SECTION 3.6 - MECHANICS.
The payments and distributions provided for in Section 3.4 shall be
made no later than the fifth day following the Date of Termination; provided,
however, that if the amounts of such payments, and the limitation on such
payments set forth in Section 3.5, cannot be finally determined on or before
such day, the Company shall pay to the Executive on such day an estimate, as
determined in good faith by the Auditors, of the minimum amount of such
payments and shall pay the remainder of such payments (together with interest
at the rate provided in Section 1274(d) of the Code, compounded quarterly) as
soon as the amount thereof can be determined but in no event later than the
thirtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have
been due, such excess shall constitute a loan by the Company to the
Executive, repayable of the fifth day after demand by the Company (together
with interest at the rate provided in Section 1274(d) of the Code, compounded
quarterly).
SECTION 3.7 - LEGAL FEES AND EXPENSES.
If, following termination of the Executive's employment, the
Executive shall incur any legal fees or expenses in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement or in connection with any tax audit or proceeding
relating thereto, the Company shall pay or reimburse the Executive for all
such fees and expenses.
SECTION 3.8 - NO MITIGATION.
The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced or offset by any compensation earned by the
Executive as a result of employment by another employer or by retirement
benefits after the Date of Termination or otherwise.
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ARTICLE IV
MISCELLANEOUS
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SECTION 4.1 - SUCCESSORS; BINDING AGREEMENT.
The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. The failure of the Company to obtain such assumption agreement prior
to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive had terminated the Executive's employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
SECTION 4.2 - SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of, and be enforceable
by, the personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees of the Executive. If
the Executive should die within two years after a Change in Control and
during the term of this Agreement and while any amount would still be payable
to the Executive hereunder if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee or other
designee or if there is no such designee, to the Executive's estate.
SECTION 4.3 - NOTICE.
Notices and all communications provided for in this Agreement shall
be in writing and shall be deemed to have been received when delivered or
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth at the end of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board of Directors with a copy to the Secretary of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
SECTION 4.4 - NO WAIVER.
No provision of this Agreement may be modified, waived or
discharged unless in writing and signed by the Executive and such officer of
the Company as may be specifically designated or authorized by the Board of
Directors or by a Committee of the Board of Directors. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
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SECTION 4.5 - ENTIRE AGREEMENT.
No agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement and this Agreement
constitutes the entire agreement of the parties.
SECTION 4.6 - CONTROLLING LAW.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California.
SECTION 4.7 - INVALID PROVISION.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
SECTION 4.8 - COUNTERPARTS.
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all such counterparts together
shall constitute but one and the same instrument.
SECTION 4.9 - THE EXECUTIVE'S RELATIONSHIP WITH THE COMPANY.
Nothing contained in this Agreement (i) obligates the Company or
any subsidiary of the Company to employ the Executive in any capacity
whatsoever, or (ii) prohibits or restricts the Company (or any such
subsidiary) from terminating the employment of the Executive at any time or
for any reason whatsoever, with or without cause.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
THE TITAN CORPORATION, a Delaware
corporation
By:_____________________________________
President
By:_____________________________________
Secretary
Address:
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxx X. Gorda
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Address:
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