AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”),
originally executed as of the 19th day of March, 2007, is hereby amended this
4th day of August, 2008 by and between ATS Corporation, a Delaware corporation
(the “Corporation”),
and
Xx. Xxxxxx X. Xxxxxxx, a resident of the Commonwealth of Virginia (the
“Executive”).
WHEREAS,
the Executive commenced service as the Corporation’s Chairman, President and
Chief Executive Officer on January 16, 2007, the date of the closing of the
Corporation’s acquisition of Advanced Technology Systems, Inc.; and
WHEREAS,
the Corporation and the Executive initially formalized the terms of the
employment relationship in this Agreement on March 19, 2007; and
WHEREAS,
the parties desire to extend the term of the Executive’s service as Chief
Executive Officer through December 31, 2009 and to make certain other revisions
to the terms of such employment relationship; and
WHEREAS,
the Executive and the Corporation wish to formalize such extension and revisions
to the Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements made
herein, and intending to be legally bound hereby, the Corporation and the
Executive hereby agree to amend and restate the Agreement in the form
hereinafter set forth:
1. Employment;
Duties.
(a) Employment
and Employment Period.
The
Corporation shall employ the Executive to serve as the Corporation’s Chairman
and Chief Executive Officer (initially also with the title of President) (the
“Chairman/CEO”)
for a
period to be agreed upon by the Executive and the Compensation Committee of
the
Board of Directors (the “Compensation
Committee”),
such
period currently expected to extend until on or about December 31, 2009 (the
“CEO
Period”),
and
thereafter (and after employment of a new Chief Executive Officer) as the
Corporation’s Chairman of the Board (the “Chairman”)
for
the period ending December 31, 2011 (the “Chairman
Only Period,”
which
until otherwise agreed shall, for purposes of this Agreement, be treated as
commencing on January 1, 2009). The period ending December 31, 2011 is
hereinafter sometimes referred to as the “Employment
Period.”
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”).
The
Employment Period may be extended by mutual agreement of the
parties.
(b) Offices,
Duties and Responsibilities.
The
Executive shall perform such customary, appropriate and reasonable executive
duties as are usually performed by a Chairman/CEO or Chairman, as the case
may
be. The Executive’s offices shall be located at the Corporation’s headquarters
building in McLean, Virginia.
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(c) Devotion
to Interests of the Corporation.
Except
as expressly authorized by the Board and so long as the Executive serves as
Chairman/CEO, the Executive will not, without the prior written consent of
the
Corporation, directly or indirectly engage in any other business activities
or
pursuits, except activities in connection with (i) any professional, charitable
or civic activities (other than as an officer), (ii) personal investments,
(iii)
serving as an executor, trustee or in another similar fiduciary capacity for
a
non-commercial entity, and (iv) continued service on a number of corporate
boards consistent with the Executive’s current board service; provided,
however,
that
any such activities do not materially interfere with the performance of his
responsibilities and obligations pursuant to this Agreement. These restrictions
shall not apply to the Executive during the Chairman Only Period. The Executive
shall use his best efforts to promote the interests and welfare of the
Corporation.
2. Compensation
and Fringe Benefits.
(a) Base
Compensation.
So long
as the Executive serves as Chairman/CEO, the Corporation shall pay the Executive
a base salary at the rate of $300,000 per year, as adjusted from time to time
with the approval of the Compensation Committee (“CEO
Base Compensation”).
The
Executive’s base salary during the Chairman Only Period shall be at a reduced
level as agreed upon between the Executive and the Compensation Committee
(“Chairman
Base Compensation”).
The
CEO Base Compensation and Chairman Base Compensation shall be payable in
installments in accordance with the Corporation’s normal payroll practices for
compensating executive personnel and shall be subject to payroll deductions
and
tax withholdings in accordance with the Corporation’s usual practices and as
required by law.
(b) Incentive
Compensation.
The
Executive shall be entitled to performance-based incentive compensation within
the meaning of Section 409A of the Code (“Incentive
Compensation”)
during
the CEO Period in an amount up to 65% of the CEO 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 the Executive and the
Compensation Committee from time to time. At or before the commencement of
the
Chairman Only Period, the Executive and the Compensation Committee will agree
on
the extent, if any, to which the Executive shall be entitled to Incentive
Compensation during the Chairman Only Period. The target amount payable as
Incentive Compensation, as agreed upon between the Executive and the
Compensation Committee from time to time, is hereinafter referred to as the
“Incentive
Compensation Target.”
(c) Fringe
Benefits.
The
Executive shall also be entitled to such fringe benefits as are generally made
available by the Corporation to executive personnel, including, but not limited
to, health insurance. The Executive also will be reimbursed for reasonable
expenses incurred in connection with travel and entertainment related to the
Corporation’s business and affairs, to be paid by the Corporation in a manner
consistent with past practice and as amended by any subsequent changes of
corporate policy.
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(d) Restricted
Stock.
In
connection with the initial execution of this Agreement in March 2007, the
Executive was awarded one hundred fifty thousand (150,000) shares of restricted
stock under the terms of the Company’s 2006 Omnibus Incentive Compensation Plan,
thirty thousand (30,000) of such shares to vest on each December 31 during
the
Employment Period commencing with December 31, 2007 so long as the Executive
continues to serve as Chairman/CEO or Chairman, as the case may be, and with
acceleration following a change in control as defined in the applicable award
agreement.
3. Trade
Secrets.
The
Executive shall not use or disclose any of the Corporation’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 the Corporation. After termination of the
Executive’s employment, the 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 the Corporation's policies or
is
disclosed to the Executive by a third party who is entitled to receive and
disclose such information.
4. Return
of Documents and Property.
Upon
the effective date of notice of the Executive’s or the Corporation’s election to
terminate the Executive’s employment, or at any time upon the request of the
Corporation, the Executive (or his heirs or personal representatives) shall
deliver to the Corporation (a) all documents and materials containing trade
secrets or other confidential information relating to the Corporation's business
and affairs, and (b) all documents, materials and other property belonging
to
the Corporation, which in either case are in the possession or under the control
of the Executive (or his heirs or personal representatives).
5. Discoveries
and Works.
All
discoveries and works made or conceived by the Executive during his employment
by the Corporation, jointly or with others, that relate to the Corporation's
activities shall be owned by the Corporation. 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. The Executive shall (a) promptly notify, make full
disclosure to, and execute and deliver any documents requested by, the
Corporation to evidence or better assure title to such discoveries and works
in
the Corporation, (b) assist the Corporation 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 the Corporation
or
thereafter, all applications or other endorsements necessary or appropriate
to
maintain patents and other rights for the Corporation and to protect its title
thereto. Any discoveries and works which, within six months after the
termination of the Executive’s employment by the Corporation, are made,
disclosed, reduced to a tangible or written form or description, or are reduced
to practice by the Executive and which pertain to the business carried on or
products or services being sold or developed by the Corporation at the time
of
such termination shall, as between the Executive and the Corporation, be
presumed to have been made during the Executive’s employment by the Corporation.
Set forth on Schedule 5 attached hereto is a list of inventions, patented or
unpatented, if any, including a brief description thereof, which are owned
by
the Executive, which the Executive conceived or made prior to his employment
by
the Corporation and which are excluded from this Agreement.
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6. Termination.
(a) Upon
thirty (30) days’ prior written notice the Corporation may terminate the
Executive’s employment, with or without “Cause,” as defined in Section 6(f)
below. Upon thirty (30) days’ prior written notice, the Executive may terminate
his employment, with or without “Good Reason,” as defined in Section 6(e) below.
Upon any termination of the Executive’s employment (the “Date
of Termination”)
for
any reason, the Corporation shall:
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(i)
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pay
to the Executive any unpaid CEO Base Compensation or Chairman Base
Compensation, as the case may be, through the Date of
Termination;
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(ii)
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pay
to the 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 the Executive the benefits, if any, otherwise
expressly provided under this Section 6, Section 7 or Section 8,
as
applicable.
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Any
payments under this Section 6, Section 7 or Section 8 that are to be made in
connection with the termination of the Executive’s employment 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 the Executive’s
termination of employment; provided,
however,
that in
the event the Executive’s employment is terminated pursuant to Section 6(b)
below, then, at the Corporation’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 provided in Section 6(b))
with the first payment due within five business days after the date of the
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.
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(b) In
the
event the Corporation terminates the Executive’s employment without Cause or the
Executive terminates his employment for Good Reason, then, in addition to the
benefits provided for under Sections 6(a)(i) and 6(a)(ii) and subject to the
provisions of Section 8, the Corporation shall pay to the Executive (i) a
severance benefit equal to the Executive’s then applicable CEO Base Compensation
or Chairman Base Compensation, as the case may be, for a period of twelve (12)
months following the termination of employment if the termination takes place
during the CEO Period or eighteen (18) months if the termination takes place
during the Chairman Only Period (such twelve- or eighteen-month period, as
the
case may be, the “Applicable
Severance Period”),
(ii)
the cost of maintaining the level of health insurance then maintained by the
Executive (including family) under Federal COBRA laws for a period of eighteen
(18) months following the effective date of the termination, plus (iii) an
amount equal to fifty percent (50%) of the Incentive Compensation Target, if
any, applicable for the first 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 the
Executive’s employment with the Corporation is terminated, the Corporation shall
calculate the amount of Incentive Compensation the Executive would have received
had the Executive remained employed by the Corporation for the entire applicable
calendar year. To the extent that the amount of the Incentive Compensation
the
Executive would have received had the Executive remained employed by the
Corporation for the entire applicable calendar year is in excess of 50% of
the
Incentive Compensation Target for that year (the “Overage
Amount”),
the
Corporation shall then promptly pay to the Executive the Overage Amount. No
Overage Amount shall be payable in respect of years following the year in which
the Executive’s employment with the Corporation is terminated.
(c) In
the
event the Corporation terminates the Executive’s employment for Cause, then, in
addition to the benefits provided for under Sections 6(a)(i) and 6(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 the Executive terminates his employment without Good Reason, then, in
addition to the benefits provided for under Sections 6(a)(i) and 6(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, the 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 the Corporation for Cause, or under
the
circumstances described in Section 8 hereof), (i) the responsibilities of the
Executive are substantially reduced or altered, (ii) the Executive’s CEO Base
Compensation or Chairman Base Compensation, as the case may be, is reduced
without his consent, or (iii) the Executive’s offices are relocated anywhere
other than within a fifty (50) mile radius of his office in McLean, Virginia;
provided,
however,
that if
the Executive terminates this Agreement for one or more of the reasons stated
in
clauses (i) or (ii), the Corporation shall have a period of thirty (30) business
days after actual receipt written notice of the 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.
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(f) For
purposes of this Agreement, the Corporation shall have “Cause”
to
terminate the Executive’s employment hereunder upon (i) the continued, willful
and deliberate failure of the Executive to perform his duties in a manner
substantially consistent with the manner prescribed by the Board (other than
any
such failure resulting from his incapacity due to physical or mental illness),
(ii) the engaging by the Executive in misconduct materially and demonstrably
injurious to the Corporation, (iii) the conviction of the Executive of
commission of a felony, whether or not such felony was committed in connection
with the Corporation’s business, (iv) the circumstances described in Section 8
hereof, in which case the provisions of Section 8 shall govern the rights and
obligations of the parties, or (v) during the Chairman Only Period (but prior
to
a Change of Control as defined in Section 7(c) below) the Executive is nominated
for election to the Board of Directors and the Corporation solicits proxies
for
his election but the Executive is not elected by the stockholders; provided,
however,
that if
the Corporation terminates this Agreement for one or more of the reasons stated
in clauses (i) or (ii), the Executive shall have a period of thirty (30)
business days after actual receipt written notice of the Corporation’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.
(g) Notwithstanding
any other provision hereof, the Executive shall not be entitled to receive
any
payment under Section 6 or 7 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.
7. Change
in Control.
(a) All
unvested restricted stock, stock options and any other equity-based compensation
arrangements theretofore granted to the Executive shall vest in full on the
date
of a “Change in Control” (as defined in Section 7(c) below).
(b) In
the
event that the Corporation terminates the Executive’s employment with the
Corporation without Cause within twelve months after a “Change in Control” (as
defined in Section 7(c) below), or if the Executive terminates his employment
with the Corporation for Good Reason (in accordance with Sections 6(e) and
(f)
above) within twelve months after a Change in Control, then, in addition to
the
benefits provided for under Sections 6(a)(i) and 6(a)(ii), the Corporation
shall
pay to the Executive a severance benefit equal to (i) the Executive’s then
applicable annual CEO Base Compensation or Chairman Base Compensation, as the
case may be, for the Applicable Severance Period, (ii) the cost of maintaining
the level of health insurance then maintained by the Executive (including
family) under Federal COBRA laws for a period of eighteen (18) months following
the effective date of the termination, plus (iii) an amount equal to one hundred
percent (100%) of the Incentive Compensation Target, if any, applicable during
the first 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 6(b)) with the first payment due within five business days
after the date of the 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.
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(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 the Corporation) of any voting
securities of the Corporation (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 the Corporation, 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 the Corporation'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
the Corporation, unless the company resulting from such merger,
consolidation or reorganization (the “Surviving
Corporation”)
shall adopt or assume this Agreement and the stockholders of the
Corporation 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 the Corporation, or (C) a sale or transfer of all or substantially
all
of the assets of the Corporation.
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(d) In
the
event that, as a result of payments to or for the benefit of the Executive
under
this Agreement or otherwise in connection with a Change in Control, any state,
local or federal taxing authority imposes any taxes on the 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 6(a)(i) and 6(a)(ii) and under Sections 7(a) and 7(b), the Corporation
(including any successor to the Corporation) shall pay to the Executive at
the
time any such tax becomes payable an amount equal to the amount of any such
tax
imposed on Executive.
8. Disability;
Death.
(a) If,
prior
to the expiration or termination of the Employment Period, the Executive shall
be unable to perform his duties by reason of disability or impairment of health
for at least six consecutive calendar months, the Corporation shall have the
right to terminate the Executive’s employment on account of disability by giving
written notice to the 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 the Executive is disabled within the meaning of
this
Section 8(a), either party may from time to time request a medical examination
of the Executive by a doctor selected by the Corporation, and the written
medical opinion of such doctor shall be conclusive and binding upon the parties
as to whether the Executive has become disabled and the date when such
disability arose. The cost of any such medical examination shall be borne by
the
Corporation. If the Corporation terminates the Executive’s employment on account
of disability, then, in addition to the benefits provided for under Sections
6(a)(i) and 6(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.
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(b) If,
prior
to the expiration or termination of the Employment Period, the Executive shall
die, then, in addition to the benefits provided for under Sections 6(a)(i)
and
6(a)(ii), the Employment Period 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 8 shall impair or otherwise affect any rights and
interests of the Executive under any insurance arrangements, death benefit
plan
or other compensation plan or arrangement of the Corporation which may be
adopted by the Board.
9. Non-Competition/Non-Solicitation.
(a) Non-Competition. The
Executive agrees that for a period commencing on the Effective Date and ending
at the end of the Applicable Severance Period (the “Non-Competition
Period”),
the
Executive will not, except as otherwise provided herein, engage or participate,
directly or indirectly, as principal, agent, officer, employee, employer or
consultant or in any other comparable capacity, in the conduct or management
of,
any business which is competitive with any business conducted by the
Corporation. For the purpose of this Agreement, a business shall be considered
to be competitive with the business of the Corporation only if such business
is
engaged in providing services similar to (i) any service currently provided
by
the Corporation or provided by the Corporation during the Employment Period;
(ii) any service which in the ordinary course of business during the
Non-Competition Period evolves from or results from enhancements to the services
provided by the Corporation as of the Effective Date or during the
Non-Competition; or (iii) any future service of the Corporation as to which
the
Executive materially and substantially participated in the design or
enhancement. Nothing in this Section 9(a) shall be interpreted to prohibit
the
Executive from continuing to serve as a non-employee member of the board of
directors of services companies that may compete with the Corporation or, during
the Chairman Only Period, as the non-executive chairman of the board of such
companies.
(b) Non-Solicitation
of Employees.
During
the Non-Competition Period, the Executive will not (for the Executive’s own
benefit or for the benefit of any person or entity other than the Corporation)
solicit, or assist any person or entity other than the Corporation to solicit,
any officer, director, executive or employee of the Corporation or its
affiliates to leave his or her employment.
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(c) Reasonableness.
The
Executive acknowledges that (i) the markets served by the Corporation are
national and are not dependent on the geographic location of executive personnel
or the businesses by which they are employed, (ii) the length of the
Non-Competition Period is related to the length of the Employment Period and
the
Corporation’s agreement to provide severance benefits as set forth in Sections 6
or 7, above, that, under certain circumstances, will provide additional
compensation to the Executive upon the termination of the Executive’s
employment; and (iii) the above covenants are reasonable on their face, and
the
parties expressly agree that such restrictions have been designed to be
reasonable and no greater than is required for the protection of the
Corporation.
(d) Investments.
Nothing
in this Agreement shall be deemed to prohibit the Executive from owning equity
or debt investments in any corporation, partnership or other entity which is
competitive with the Corporation, provided
that
such investments (i) are passive investments and constitute five percent (5%)
or
less of the outstanding equity securities of such an entity the equity
securities of which are traded on a national securities exchange or other public
market, or (ii) are approved by the Compensation Committee.
10. Waiver.
The
waiver of the breach of any term or provision of this Agreement shall not
operate as or be construed to be a waiver of any other or subsequent breach
of
this Agreement. Failure by the Executive or the Corporation to insist upon
strict compliance with any provision of this Agreement or to assert any right
the Executive or the Corporation may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or of any other
provision or rights under this Agreement.
11. Enforcement.
The
Executive agrees that the Corporation’s remedies at law for any breach or threat
of breach by him of Sections 3, 4, 5 or 9 hereof will be inadequate, and that
the Corporation shall be entitled to an injunction or injunctions to prevent
breaches of Sections 3, 4, 5 or 9 hereof and to enforce specifically the terms
and provisions thereof, in addition to any other remedy to which the Corporation
may be entitled at law or equity. If the Corporation sues to enforce Sections
3,
4, 5 or 9 hereof and fails to prevail in such proceeding, the court shall award
to the Executive his reasonable fees for his attorneys, the reasonable expenses
of his witnesses, and any other reasonable expenses incurred in connection
with
the proceeding to the extent that the court determines that the Executive has
prevailed in such proceeding.
12. Arbitration.
Any
dispute or claim other than those referred to in Section 11, arising out of
or
relating to this Agreement or otherwise relating to the employment relationship
between the Executive and the Corporation, shall be submitted to arbitration,
in
Fairfax County, Virginia, before a single arbitrator, in accordance with the
rules of the American Arbitration Association as the exclusive remedy for such
claim or dispute. The Executive and the Corporation agree that such arbitration
will be confidential and no details, descriptions, settlements or other facts
concerning such arbitration shall be disclosed or released to any third party
without the specific written consent of the other party, unless required by
law
or court order or in connection with enforcement of any decision in such
arbitration. Any damages awarded in such arbitration shall be limited to the
contract measure of damages, and shall not include punitive damages. In any
proceeding, whether commenced by the Executive or by the Corporation, the
arbitrator shall award to the Executive his reasonable fees for his attorneys,
the reasonable expenses of his witnesses, and any other reasonable expenses
incurred in connection with the arbitration to the extent that the arbitrator
determines that the Executive has prevailed in such proceeding.
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13. Full
Settlement.
The
Corporation’s obligation to make any payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Corporation may have against the Executive or others. In no event shall
the
Executive be obligated to seek other employment or take other action by way
of
mitigation of the amounts payable to the Executive under any of the provisions
of this Agreement, and such amounts shall not be reduced whether or not the
Executive obtains other employment.
14. Severability.
Should
any provision of this Agreement be determined to be unenforceable or prohibited
by any applicable law, such provision shall be ineffective to the extent, and
only to the extent, of such unenforceability or prohibition without invalidating
the balance of such provision or any other provision of this Agreement, and
any
such unenforceability or prohibition in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
15. Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
16. Assignment.
The
Executive’s rights and obligations under this Agreement shall not be assignable
by the Executive. The Corporation's rights and obligations under this Agreement
shall not be assignable by the Corporation except as incident to the transfer,
by merger or otherwise, of all or substantially all of the business of the
Corporation in a transaction in which the successor entity remains obligated
under, or by operation of law or otherwise assumes, the Corporation’s
obligations under this Agreement. In the event of any such assignment by the
Corporation, all rights of the Corporation hereunder shall inure to the benefit
of the assignee.
17. Notices.
Any
notice required or permitted under this Agreement shall be deemed to have been
effectively made or given if in writing and personally delivered or sent by
registered or certified U.S. mail, UPS or recognized overnight courier, properly
addressed in a sealed envelope, with delivery charges prepaid. Unless otherwise
changed by notice, notice shall be properly addressed to the Executive if
addressed to:
Xx.
Xxxxxx X. Xxxxxxx
0000
Xxxxxxx Xxxx Xxxx
XxXxxx,
XX 00000
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and
properly addressed to the Corporation if addressed to:
ATS
Corporation
0000
Xxxxx Xxxxxx Xxxxx
XxXxxx,
Xxxxxxxx 00000
Attention:
Chairman of Compensation Committee
18. 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 this Agreement
with
respect to the timing (but not the amount) of any payment to the extent
necessary to comply with Section 409A and avoid application of any taxes,
penalties or interest thereunder. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is a “specified employee” as defined
in Section 409A, the Executive shall not be entitled to any payments upon Date
of Termination until the earlier of (a) the date which is six (6) months after
Date of Termination for any reason other than death, or (b) the date of the
Executive’s death. Any amounts otherwise payable to the Executive following Date
of Termination that are not so paid by reason of this Section 18 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 the Executive’s death). The provisions
of this Section 18 shall only apply if, and to the extent, required to comply
with Section 409A in a manner such that the Executive is not subject to
additional taxes and/or penalties under Section 409A.
19. Miscellaneous.
Except
for the separate agreement related to the award of restricted stock contemplated
by Section 2(a), this Agreement constitutes the entire agreement, and terminates
and supersedes all prior agreements, of the parties hereto relating to the
subject matter hereof, and there are no written or oral terms or representations
made by either party other than those contained herein, except that nothing
contained in this Agreement shall invalidate or supersede the terms of any
previously or subsequently granted stock options or other equity-based
compensation arrangements (including without limitation the provisions thereof
relating to post termination exercisability) to the extent that such stock
options or arrangements provide more favorable terms to the Executive. The
validity, interpretation, performance and enforcement of this Agreement shall
be
governed by the laws of the Commonwealth of Virginia, without giving effect
to
conflicts of laws principles. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Employment Agreement effective as of the day and year first above
written.
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EXECUTIVE:
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/s/
Xxxxxx X. Xxxxxxx
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Xx.
Xxxxxx X. Xxxxxxx
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CORPORATION:
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ATS
Corporation
|
|
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a
Delaware Corporation
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|
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
|
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Chairman,
Compensation Committee
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