AGREEMENT
AGREEMENT
(this “Agreement”), dated as of January 5, 2011, by and between Xxxxxx X. Xxxxx,
an individual (“Xxxxx”), and ATS Corporation, a Delaware
corporation. As used in this Agreement, unless the context indicates
otherwise, the term “ATS” shall be deemed to refer to ATS Corporation and each
and every one of its affiliated entities.
WITNESSETH
WHEREAS,
Xxxxx presently serves as a member of the Board of Directors and President and
Chief Executive Officer of ATS Corporation; and
WHEREAS,
Xxxxx and ATS Corporation are parties to an Employment Agreement dated March 1,
2010 (the “Executive Agreement”); and
WHEREAS,
Xxxxx and ATS wish consensually to terminate the employment relationship between
Xxxxx and ATS.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
promises hereinafter provided and of the actions taken pursuant thereto, and,
intending to be legally bound, the parties agree as follows:
1. Effective
Date. As set forth below, Xxxxx has resigned for “Good Reason”
as defined in the Executive Agreement effective on January 31, 2011 (the
“Effective Date”).
2. Termination of Executive
Agreement. As of the Effective Date, except as otherwise
expressly provided herein, the Executive Agreement shall be deemed terminated
and shall have no further force or effect. Xxxxx and ATS agree that there are no
existing defaults by either party under the Executive Agreement and that, as of
the Effective Date, each party had fully performed all of its obligations to the
other party under the Executive Agreement.
3. Resignation and Termination
of Existing Employment Relationship. As of the Effective Date,
Xxxxx shall be deemed to have resigned from all corporate offices and the Board
of Directors of ATS, and from all offices and directorships of ATS’
subsidiaries, joint ventures, and affiliated companies, organizations, and
entities. Xxxxx’ employment by ATS shall be deemed to have terminated
for any and all purposes as of 12:01 a.m. on January 31, 2011. ATS
and Xxxxx agree that Xxxxx will be treated as incurring a “separation from
service” from ATS (as such term is defined for purposes of Section 409A of the
Internal Revenue Code) on January 31, 2011.
4. Records and Bank
Accounts. As soon as practicable (but not later than 30 days)
after the Effective Date, ATS shall take such steps as may be necessary to
(a) reflect in the corporate records of ATS, its subsidiaries, joint
ventures, and affiliated companies, organizations, and entities that Xxxxx has
resigned as an officer and director of ATS and as an officer and director of
ATS’ subsidiaries, joint ventures, and affiliated companies, organizations, and
entities; and (b) remove Xxxxx as an authorized signatory on all corporate
bank accounts.
5. Payments to
Xxxxx. ATS will pay Xxxxx amounts due to him in respect of
service during 2010 in accordance with Section 11(b) of the Executive Agreement,
including any amounts due pursuant to the ATS 2010 bonus program. In
addition, ATS will pay to Xxxxx xxxxxxxxx, as provided in Section 11(c) of the
Executive Agreement in the case of termination of the Executive Agreement by
Xxxxx for “Good Reason” as defined in the Executive Agreement, i.e., an amount
equal to eighteen months of Xxxxx’ base compensation ($405,000 per annum),
payable as follows: (a) an amount equal to six months of such base
compensation ($202,500) will be paid on the date that is six months and one day
after the Effective Date, and (b) the remaining twelve months of such base
compensation will be paid to Xxxxx in twelve monthly installments, commencing on
the date that is seven months after the Effective Date (August 1,
2011). All such payments will be subject to all applicable
withholding requirements.
6. Health and Welfare
Benefits. Xxxxx may elect to continue his family health and welfare
benefits provided through ATS, on the same terms as ATS provides such benefits
to executives of ATS, for a period of eighteen months after the Effective
Date. Other benefits, including life, accidental death and disability
and other insurance benefits, will terminate on the Effective Date.
7. Restricted Stock and
Options. ATS and Xxxxx acknowledge and agree that Xxxxx has
been granted 60,000 shares of restricted stock and 40,000 options (collectively,
the “Equity Grants”). ATS and Xxxxx acknowledge and agree that
all of the Equity Grants shall be vested as of the Effective
Date. Under the terms of the relevant Incentive Stock Option
Agreement, the options will expire 90 days after the Effective Date of this
Agreement, unless exercised by Xxxxx.
8. Indemnification and Notice
Concerning Nonrenewal of Directors and Officers Insurance
Coverage.
(a) ATS
acknowledges that its Certificate of Incorporation and By-Laws and the charters
and by-laws of certain of its direct and indirect subsidiaries include
provisions designed to provide to former officers and directors indemnification
in respect of threatened and commenced actions, suits and proceedings in which
an individual is a party or is threatened to be made a party by reason of the
fact that he is or was an officer or director of ATS or such
subsidiaries. ATS shall, and shall cause such subsidiaries to,
continue to provide indemnification to Xxxxx under such provisions to the
maximum extent permitted by applicable law.
(b) So long
as ATS maintains directors and officers liability insurance coverage, Xxxxx
shall be covered by such insurance with respect to his tenure with ATS, on the
same terms as other existing and former officers and directors. If,
for any reason, ATS shall not continue to have in effect directors and officers
liability insurance coverage, on terms substantially comparable to those
presently in effect, ATS shall provide Xxxxx with written notice of the
cancellation or nonrenewal of such coverage not less than 20 business days prior
to the effectiveness of such cancellation or nonrenewal.
9. Employment
References. Nothing in this Agreement shall prevent either
party from stating the fact that Xxxxx was employed by ATS, the address of his
work location, the dates of his employment, his job titles and job duties, his
rate of pay, or that he resigned from his position as an officer of ATS on or
about the Effective Date. ATS will provide employment references upon
Xxxxx’ request on the condition that Xxxxx submits a standard ATS employment
reference notice and release.
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10. Certain Surviving Provisions
of the Executive Agreement. Notwithstanding anything herein to
the contrary, Xxxxx and ATS agree that the provisions of Sections 7, 8, 9 and 10
of the Executive Agreement shall survive the Effective Date in accordance with
their terms as modified, in the case of Section 7 of the Executive Agreement, in
the balance of this Section 10. Notwithstanding anything in the
Executive Agreement to the contrary, the Non-Competition Period referred to in
Section 7(a) of the Executive Agreement shall be six rather than eighteen
months. In addition, the term “Competitive Business Activity” as used
in Section 7(a) of the Executive Agreement is hereby modified to mean
“providing, or soliciting the opportunity to provide, products or services that
are directly competitive with the current contract activities of Employer or the
proposals and prospects referred to on Employer’s December 31, 2010 ‘Business
Development’ (or ‘pipeline’) report.”
11. No Disparaging
Statements. Each of ATS and Xxxxx covenant and agree that
following the Effective Date neither shall make disparaging statements
concerning the other, or its officers, directors, affiliates, agents and/or
employees. ATS shall be responsible under this Section 11 for the statements of
the Chairman and the Chief Executive Officer(s) and the individuals who report
directly to such officers.
12. No
Admissions. Nothing contained in this Agreement or the General
Release contemplated hereby shall be considered an admission by either party of
any wrongdoing under any Federal, state or local statute, public policy, tort
law, contract law, common law or otherwise.
13. No Third Party
Claims. Each party represents and warrants that no other
person or entity has, or to the best knowledge of such party claims, any
interest in any potential claims, demands, causes of action, obligations,
damages or suits released pursuant to this Agreement; that it or he is the owner
of all other claims, demands, causes of action, obligations, damages or suits so
released; that it or he has full and complete authority to execute this
Agreement; and that it or he has not sold, assigned, transferred, conveyed or
otherwise disposed of any claim, demand, cause of action, obligation or
liability subject to this Agreement and the General Release contemplated
hereby.
14. Expenses. Each
party shall pay its own costs incident to the negotiation, preparation,
performance, execution, and enforcement of this Agreement, and all fees and
expenses of its or his counsel, accountants, and other consultants, advisors and
representatives for all activities of such persons undertaken in connection with
this Agreement.
15. No Third Party
Beneficiaries. Except as expressly stated herein, the parties
do not intend to make any person or entity who is not a party to this Agreement
a beneficiary hereof, and this Agreement should not be construed as being made
for the benefit of any person or entity not expressly provided for
herein.
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16. Advice of
Counsel. The parties acknowledge that they have been advised
by competent legal counsel in connection with the execution of this Agreement,
that they have read each and every paragraph of this Agreement and that they
understand their respective rights and obligations. Xxxxx declares
that he has completely read this Agreement, fully understands its terms and
contents, and freely, voluntarily and without coercion enters into this
Agreement.
17. Entire
Agreement. This Agreement, together with the accompanying
General Release and the surviving provisions of the Executive Agreement,
constitutes the entire agreement of the parties with respect to the subject
matter hereof, and all prior negotiations and representations are merged herein
or replaced hereby.
18. Severability. If
any provision of this Agreement is held illegal, invalid or unenforceable, such
illegality, invalidity, or unenforceability shall not affect any other provision
hereof. Any such provision and the remainder of this Agreement shall,
in such circumstances, be deemed modified to the extent necessary to render
enforceable the remaining provisions hereof.
19. Governing
Law. This Agreement shall be construed and enforced in
accordance with the law of the Commonwealth of Virginia.
20. Release and
Effectiveness. This Agreement and the General Release in the
form attached hereto as Exhibit A, which is incorporated herein by
reference, have been executed by or on behalf of Xxxxx and ATS on the dates
shown opposite their respective signatures below, and this Agreement and such
General Release are effective as of the Effective Date. ATS, except
for any rights granted under this Agreement, agrees to release, remise and
forever discharge, Xxxxx, his heirs, assigns, executors and administrators of
and from all manner of actions and actions, sums of money, covenants, contracts,
controversies, agreements, promises, damages, claims and demands whatsoever in
law or equity, that ATS ever had, may have had, now has, shall have or may have
as a result of Xxxxx’ employment or the termination of that employment, whether
known or unknown, asserted or unasserted, suspected or unsuspected, which ATS
may have as a result of any act which has occurred at any time up to and
including the execution of this Agreement.
21. Binding
Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective representatives, successors,
heirs and permitted assigns.
22. Counterparts. This
Agreement may be executed in counterparts, all of which shall be considered one
and the same agreement, and shall become effective on the Effective
Date.
[Signatures
on Following Page]
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IN
WITNESS WHEREOF, Xxxxxx X. Xxxxx and ATS Corporation have executed this
Agreement.
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ATS
CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
Xx.
Xxxxxx X. Xxxxxxx, Chairman
Dated: January
5, 2011
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XXXXXX
X. XXXXX
/s Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
Dated: January
5, 2011
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EXHIBIT
A
GENERAL
RELEASE
I, Xxxxxx
X. Xxxxx, in consideration of and subject to the performance by ATS Corporation,
a Delaware corporation (the “Company”), hereby
give this GENERAL RELEASE (the “Release”) in exchange
for the payments and benefits to be provided to me under that certain Employment
Agreement dated March 1, 2010, between the Company and me (the “Employment
Agreement”) as well as the terms contained in the Agreement dated January
5, 2011 between the Company and me (the “Agreement”).
1. I
hereby acknowledge and agree that the payments and benefits provided under the
Employment Agreement, as well as the terms contained in the Agreement, represent
consideration over and above that to which I would otherwise be entitled and
that I am voluntarily executing this Release so as to be eligible to receive
such benefits.
2. For
myself and my personal representatives, I hereby release, forever discharge,
indemnify and hold harmless the Company and its affiliates, and the officers,
directors, shareholders, owners, Executives and agents of the Company and its
affiliates in their capacity as such (collectively, the “Released Parties”),
from any and all causes of action, suits, debts, agreements, promises, damages,
judgments, claims, demands, obligations and liabilities of any kind of nature
whatsoever, whether known or unknown, liquidated or unliquidated, which I or my
heirs or personal representatives ever had, now have or hereafter can, shall or
may have against any of the Released Parties, for, upon, or by reason of any
act, omission, occurrence, cause or thing whatsoever prior to the date
hereof. I agree not to xxx any of the Released Parties in any court
or bring any other kind of legal proceeding against any of the Released Parties
regarding any of the matters as to which I have released the Released Parties
under this Release.
The
foregoing release is a general release that includes, but is not limited to, a
release of any claim I may have under the Age Discrimination in Employment Act,
which prohibits age discrimination in employment; Title VII of the Civil Rights
Act of 1964, which prohibits discrimination in employment based on race, color,
national origin, religion or sex; the Equal Pay Act which prohibits paying men
and women unequal pay for equal work; and any other federal, state or local law
or regulation or under common law.
3. I
represent and warrant that:
(a) I
have returned all property of the Company or any affiliate or subsidiary thereof
in my possession, including keys, property access devices, and credit cards and
any confidential or proprietary information regarding the Company and its
affiliates in tangible form.
(b) In
executing this Release, I have not relied upon, and I do not rely upon, any
representation or statement made to me by the Company or any of its affiliates
or any of their agents or representatives, other than any statements expressly
contained herein.
4. I
agree that if any provision of this Release is adjudicated to be invalid or
unenforceable, or if compliance with any provision of this Release is restrained
pending a final determination as to its legality, such deletion or restraint
shall apply only to the operation of the provision or provisions deemed invalid,
unenforceable, or restrained, and to the extent any provision of this Release is
deemed invalid, unenforceable, or restrained, the remaining provisions will be
valid and enforceable to the fullest extent possible.
5. I
agree that in the event that I receive any or all of the payments and benefits
under the Employment Agreement and the Agreement and then I subsequently revoke
this Release or breach any provision hereof, I shall promptly pay to the Company
the amount of such payments and benefits I received and in no event later than
five (5) days after such revocation or breach.
6. I
agree that in the event of any breach or threatened breach of this Release by
me, the Company shall be entitled to specific performance and injunctive relief
(i.e., a court order)
as a remedy for any such breach or threatened breach hereof without necessity of
posting bond or other security, the requirement for which is expressly
waived. Such remedy shall not be deemed to be the exclusive remedy
for any breach of this Release but shall be in addition to all other remedies
available to the Company at law or in equity.
7. I
agree that this Release shall also be binding upon my spouse, dependents,
children, heirs, successors and assigns and their legal representatives and
shall inure to the benefit of and shall release the Company and its successors
and assigns.
8. I
acknowledge and hereby state that (i) I enter into this Release voluntarily
without duress or undue influence; (ii) I have read and understand the terms and
conditions of this Release; and (iii) I have had a reasonable opportunity to
review this Release. Furthermore, I understand that I may revoke this
Release within seven days of signing it by delivering a written revocation to
the Chief Executive Officer(s) of the Company.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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NOTICE
YOU
SHOULD THOROUGHLY REVIEW AND UNDERSTAND THE TERMS, CONDITIONS AND EFFECT OF THIS
GENERAL RELEASE. YOU HAVE THE RIGHT TO CONSIDER IT FOR TWENTY-ONE
(21) DAYS BEFORE SIGNING IT. ALSO, YOU HAVE THE RIGHT TO CONSULT WITH
AN ATTORNEY BEFORE YOU SIGN THIS GENERAL RELEASE. YOU HAVE SEVEN (7)
CALENDAR DAYS AFTER SIGNING THIS GENERAL RELEASE TO REVOKE YOUR
SIGNATURE. IF YOU CHOOSE TO REVOKE THIS GENERAL RELEASE, IT WILL NOT
BE BINDING ON YOU, BUT YOU WILL NOT BE ENTITLED TO PAYMENTS OR BENEFITS UNDER
THE TERMS OF THE EMPLOYMENT AGREEMENT. IN ADDITION, IF YOU BREACH ANY
PROVISION OF THIS RELEASE, YOU WILL NOT BE ENTITLED TO PAYMENTS OR BENEFITS
UNDER THE EMPLOYMENT AGREEMENT. MOREOVER, IF YOU RECEIVE ANY PAYMENTS
OR BENEFITS UNDER THE TERMS OF THE EMPLOYMENT AGREEMENT AND SUBSEQUENTLY REVOKE
THIS GENERAL RELEASE OR BREACH ANY PROVISION HEREOF, YOU MUST REMIT SUCH
PAYMENTS OR BENEFITS TO THE COMPANY IMMEDIATELY.
Presented: January
5, 2011.
I, Xxxxxx
X. Xxxxx, hereby accept and agree to all the provisions of this
Release.
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/s/
Xxxxxx X. Xxxxx
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Date:
January 5, 2011
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Executive’s
Signature
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Xxxxxx
X. Xxxxx
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/s/
Xxxx X.
Xxxxx
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Date:
January 5, 2011
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Witness’
Signature
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Xxxx
X. Xxxxx
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Printed
Name of Witness
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