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EXHIBIT 10.58
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of October 20, 1999, as amended February 29, 2000 and May 31, 2000, by and
between XXXXXX XXXXXX, INC., a Delaware corporation (the "Company"), and
XXXXXXXX X. XXXXXX ("Executive").
WHEREAS, the Company desires to employ Executive, and
Executive desires to be employed by the Company, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, the parties hereto hereby
agree as follows:
1. EMPLOYMENT; TERM; POSITION AND DUTIES.
On the terms and conditions set forth in this Agreement, the
Company agrees to employ Executive and Executive agrees to be employed by the
Company for the term set forth herein and in the positions and with the duties
discussed herein. The term of this Agreement shall commence on October 20, 1999
(the "Commencement Date") and shall end on March 31, 2001, unless sooner
terminated pursuant to Section 5 hereof (the "Term"). The Company shall cause
Executive to become, and Executive shall serve as Senior Vice President and
Chief Financial Officer, and, from May 11, 2000, as President and Chief
Executive Officer, or such other position as may, from time to time, be
prescribed by the Board of Directors of the Company (the "Board of Directors")
or any of its affiliates and agreed to by Executive. Executive shall be located
at the Company's headquarters in Arlington, Virginia.
Executive agrees to serve the Company faithfully and to the
best of Executive's ability; to devote Executive's time, energy and skill during
regular business hours (except for illness or incapacity and except for vacation
time as provided herein) to such employment; to use Executive's best efforts,
skills and ability to promote the Company's interests; if elected, to serve as a
director of the Company and its subsidiaries or affiliated corporations or
entities; and to perform such duties and responsibilities as from time to time
may be assigned to Executive by the Board of Directors, which duties shall be
consistent with Executive's positions as set forth in the preceding paragraph.
2. COMPENSATION.
The Company agrees to pay Executive as compensation for all
duties performed by Executive in any capacity during the period of Executive's
employment under this Agreement a minimum annual base salary of $175,032 ("Base
Salary"), for the period commencing on the Commencement Date through December
31, 1999, $225,264 for the period commencing January 1, 2000 through May 10,
2000 and $363,480 for the remainder of the Term, payable in equal installments
twice monthly to Executive.
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On the Commencement Date, Executive was granted options to
purchase 25,000 shares of common stock of Xxxxxx Xxxxxx, Inc., vesting in equal
amounts over four years commencing on the first anniversary of the Commencement
Date, with a term of ten years and subject to the terms and conditions of the
Xxxxxx Bailly Employee Incentive and Non-Qualified Stock Option and Restricted
Stock Plan or any successor plan.
The Company paid to the Executive on March 7, 2000 a bonus of
Twenty-Five Thousand Dollars ($25,000), less any amount required to be withheld
under applicable tax laws and regulations.
The Company has paid and shall pay to Executive bonus advances
for the calendar year 2000 as follows:
(i) the Company paid to the Executive a bonus advance of
Seventeen Thousand Five Hundred Dollars ($17,500) on April 7, 2000, less any
amount required to be withheld under applicable tax laws and regulations.
(ii) the Company shall pay to the Executive a bonus advance of
Thirty Five Thousand Dollars ($35,000) on each of July 7, 2000, October 7, 2000
and a date to be determined in December, 2000. In the event of a Change of
Control Transaction involving the Company during calendar year 2000, the Company
shall pay to Executive the unpaid balance of the aggregate One Hundred Twenty
Two Thousand Five Hundred Dollar ($122,500) bonus advance described above as of,
and on the date of, the closing of such Change of Control Transaction, less any
amount required to be withheld under applicable tax laws and regulations.
In addition, upon the closing of a Change of Control Transaction
involving the Company during the Term, the Company shall pay to the Executive an
additional amount of One Hundred Two Thousand Five Hundred Dollars ($102,500),
less any amount required to be withheld under applicable tax laws and
regulations. For purposes of this Agreement, a Change in Control Transaction
means:
(a) the acquisition by any Person (as used for purposes of
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934 ("1934 Act")) of
Beneficial Ownership (as the term beneficial ownership is used for purposes of
Rule 13d-3 promulgated under the 0000 Xxx) of thirty-three and one third percent
(33 1/3%) or more of the combined voting power of the Company's then outstanding
voting securities ("Voting Securities");
(b) (i) a merger, reorganization or consolidation involving
the Company if the Stockholders of the Company immediately before such merger,
reorganization or consolidation, do not or will not own directly or indirectly
immediately following such merger, reorganization or consolidation more than
fifty percent (50%) of the combined voting power of the outstanding Voting
Securities of the corporation resulting from or surviving such merger,
reorganization or consolidation in substantially the same proportion as their
ownership of the Voting Securities of the Company immediately before such
merger, reorganization or consolidation; (ii) a complete liquidation or
dissolution of the Company; or (iii) the consummation of the sale or other
disposition of all or substantially all of the assets of the Company; or
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(c) the acceptance by the Stockholders of the Company of
shares in a share exchange if the Stockholders of the Company immediately before
such share exchange do not or will not own directly or indirectly immediately
following such share exchange more than fifty percent (50%) of the combined
voting power of the outstanding Voting Securities of the corporation resulting
from or surviving such share exchange in substantially the same proportion as
the ownership of the Voting Securities of the Company outstanding immediately
before such share exchange.
3. BENEFITS; REIMBURSEMENT OF EXPENSES; VACATION.
During the Term, Executive shall also be eligible to:
(a) participate in all of the benefit programs provided by the
Company ("Benefit Programs") in accordance with policies in effect for officers
of comparable rank; provided, that nothing in this Agreement shall require the
Company to create, continue or refrain from amending, modifying, revising or
revoking any Benefit Programs described herein. Executive shall be entitled to
vacation, holidays and personal days on the same basis as other officers of the
Company;
(b) reimbursement by the Company of all expenses reasonably
incurred by Executive during the Term in connection with the performance of
Executive's duties, including, without limitation, travel and entertainment
expenses reasonably related to the business or interests of the Company, upon
submission by Executive of written documentation of such expenses; and
(c) the other benefits set forth in this Agreement.
4. TERMINATION.
This Agreement may be terminated prior to the expiration of
its Term as follows:
(a) automatically upon Executive's death;
(b) by the Company for "cause," which for purposes of this
Agreement shall mean:
(1) failure to comply with the material rules,
standards, or procedures reasonably promulgated by the Company in accordance
with ordinary and usual business standards, or dereliction of assigned
responsibilities consistent with Section 1 above, such failure or dereliction
remaining uncured by Executive within thirty (30) days after written notice from
the Company of such failure or dereliction that specifically describes the
nature of such alleged failures;
(2) substandard performance of assigned
responsibilities measured in accordance with performance standards agreed upon
from time to time by Executive and the Company;
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(3) material violation by Executive, or any other
person acting upon his specific instructions, of a federal, state or local
statute, rule or regulation applicable to the Company, to its management, or to
the operation of the Company's business;
(4) material breach of the terms of this Agreement;
(5) knowing falsification of Company's records or
documents;
(6) gross negligence;
(7) conviction of Executive, or any other person
acting upon Executive's specific directions, of any misdemeanor that involves
fraud or results in a material loss to the Company or of a felony; or
(8) any material act of dishonesty or moral turpitude.
During the Term of this Agreement, the Company shall have no right
to terminate this Agreement without "cause."
(c) by Executive, upon the Company's failure to perform or
observe any of the material terms or provisions of this Agreement, and the
continued failure of the Company to cure such default within thirty (30) days
after the written demand for performance has been given to the Company by
Executive, which demand shall describe specifically the nature of such alleged
failure; it is acknowledged and agreed that Sections 2 and 3 of this Agreement
are material provisions of this Agreement; and
(d) by Executive, upon notice from Executive upon the
Company's failure to pay Executive amounts under Section 2 when due and the
continued failure of the Company to make such payment within ten (10) days after
written demand for such payment is made by Executive.
(e) by Executive, in the Executive's discretion, after
thirty (30) days written notice to the Company.
5. EFFECT OF TERMINATION.
(a) In the event of the termination of this Agreement
pursuant to paragraph (b) or paragraph (e) of Section 4, the Company shall be
under no obligation to Executive, except to pay Executive accrued and unpaid
Base Salary, Bonus and paid leave payments to the date of termination, and to
permit the exercise of any vested but unexercised options under the Stock Option
Plan subject to the terms and conditions thereof and Executive shall not be
entitled to receive any Base Salary or Bonus after the date of termination, or
to exercise any unvested options under the Stock Option Plan.
(b) In the event of the termination of this Agreement
automatically pursuant to paragraph (a) or by Executive pursuant to paragraphs
(c) or (d) of Section 4, Executive (or, in the event of his death, his
beneficiaries) shall be entitled to receive all of the compensation and benefits
provided herein until the date the Term would have expired absent
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any termination of this Agreement (such date being herein referred to as the
"Final Payment Date"). If the Company and Executive shall become involved in a
dispute relating to any alleged breach of this Agreement by the Company or
Executive, and if Executive prevails (by judgment, settlement or otherwise) in
such dispute, the Company shall reimburse Executive for all reasonable costs
(including reasonable fees and disbursements of counsel) incurred by Executive
in connection with such dispute upon presentation to the Company of evidence of
such costs.
6. RENEWAL OF AGREEMENT.
This Agreement may be extended by mutual agreement of the
parties.
7. PROPRIETARY RIGHTS.
(a) Executive acknowledges that in order for Executive to
perform Executive's duties, the Company must entrust Executive with certain
trade secrets and confidential business information belonging to the Company
(the "Confidential Information"). The Confidential Information includes, but is
not limited to, client lists, including the identity of the Company's clients,
information concerning the characteristics of the Company's clients, pricing
policies and practices, negotiating strategies, computer software, financial
information, information about the Company's business plans, and any other
information about or generated by the Company which could, if disclosed, be
useful to any competitors of the Company. The Confidential Information does not
include information that is in the public domain through no fault or action of
Executive. Executive further acknowledges that the Company has developed or
acquired such Confidential Information at great effort, and that the
unauthorized disclosure or use of the Confidential Information would cause the
Company irreparable harm.
(b) Executive agrees that, during the term of Executive's
employment with the Company and thereafter, Executive will not disclose the
Company's Confidential Information or use it in any way, except on behalf of the
Company, whether or not such Confidential Information was produced by
Executive's own efforts. Executive further agrees, upon termination of
Executive's employment, promptly to deliver to the Company all Confidential
Information, including, but not limited to, all files, books, documents,
computer disks or tapes, and other property prepared on behalf of the Company or
purchased with Company funds, including Confidential Information produced by
Executive's own efforts, and to refrain from making, retaining or distributing
any copies thereof.
(c) at all times during the Term, all right, title, and
interest in all copyrightable material which Executive shall conceive or
originate, either individually or jointly with others, in Executive's capacity
as an executive of the Company will be the property of the Company and are by
this Agreement assigned to the Company along with ownership of any and all
copyrights in the copyrightable material. At all times during the Term,
Executive agrees to execute all papers and perform all other acts reasonably
necessary to assist the Company to obtain and register copyrights on such
materials in any and all countries, and the Company agrees to pay expenses
associated with such copyright registration. Works of authorship created by
Executive for the Company in performing Executive's responsibilities under this
Agreement during the Term shall be considered "works for hire" as defined in the
U.S. Copyright Act. In addition, Executive hereby assigns to the Company all
proprietary rights which originate during
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Executive's employment with the Company, including, but not limited to, all
patents, copyrights, trade secrets and trademarks Executive might otherwise
have, by operation of law or otherwise, in all inventions, discoveries, works,
ideas, information, knowledge and data based on Executive's access to
Confidential Information of the Company or developed by Executive in Executive's
capacity as an employee of the Company.
(d) If, during the Term, Executive is engaged in or
associated with the planning or implementing of any project, program or venture
involving the Company and a third party or parties, all rights in such project,
program or venture belong to the Company. Except as formally approved by the
Company's Board of Directors, Executive shall not be entitled to any interest in
such project, program or venture or to any commission, finder's fee or other
compensation in connection therewith other than the compensation to be paid to
Executive as provided in this Agreement.
(e) At all times during the Term and thereafter,
Executive further agrees to execute and deliver any additional documents,
instruments, applications, oaths or writings reasonably necessary or desirable
to further evidence the assignments described in this Section 7.
(f) The obligations of Executive under this Section 7
shall survive the termination or expiration of the Term.
8. SPECIFIC ENFORCEMENT
Executive acknowledges that the restrictions contained in
Section 7 hereof are reasonable and necessary to protect the legitimate interest
of the Company. Executive also acknowledges that any breach by him of such
sections will cause continuing and irreparable injury to the Company for which
monetary damages would not be an adequate remedy. Executive agrees that he shall
not, in any action or proceeding to enforce Section 7 of this Agreement, assert
the claim or defense that an adequate remedy at law exists. In the event of such
breach by Executive, the Company shall have the right to enforce the provisions
of Section 7 of this Agreement by seeking injunctive or other relief in any
court and this Agreement shall not in any way limit remedies of law or in equity
otherwise available to the Company with respect to such section.
9. NOTICE.
All notices or other communications which may be or are
required to be given, served or sent by any party to any other party pursuant to
this Agreement shall be in writing and shall be mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery or facsimile, addressed as follows:
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(a) If to the Company:
Xxxxxx Xxxxxx, Inc.
Xxxxx 000
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X.X. Xxxxxxx,
Senior Vice President and General Counsel
(b) If to Executive:
Xxxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Each party may designate by notice in writing a new address to
which any notice or other communication may thereafter be so given, served or
sent. Each notice or other communication which shall be mailed or transmitted in
the manner described above, shall be deemed sufficiently given, served, sent,
delivered and received for all purposes at such time as it is delivered to the
addressee (with the return receipt, the delivery receipt or the affidavit of
messenger being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
10. SEVERABILITY.
If any part or any provision of this Agreement shall be
invalid or unenforceable under applicable law, such part shall be ineffective to
the extent of such invalidity or unenforceability only, without in any way
affecting the remaining parts of such provision or the remaining provisions of
this Agreement.
11. SURVIVAL.
It is the express intention and agreement of the parties
hereto that all covenants, agreements and statements made by any party in this
Agreement shall survive the execution and delivery of this Agreement, and that
certain covenants, agreements and statements shall survive the termination or
expiration of the Term to the extent specified in this Agreement.
12. WAIVER.
Neither the waiver of any of the parties hereto of any breach
of or default under any of the provisions of this Agreement, nor the failure of
any of the parties, on one or more occasion, to enforce any of the provisions of
this Agreement or to exercise any right or
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privilege hereunder, shall thereafter be construed as a waiver of any subsequent
breach or default, or as a waiver of any such provisions, rights, or privileges
hereunder.
13. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and, subject to Section 18 hereof, their
respective heirs, devisees, executors, administrators, legal representatives,
successors and assigns. As used in this Agreement, the term "successor" shall
include any person, firm, corporation or other business entity which at any
time, whether by merger, purchase or otherwise, acquires all or substantially
all of the assets or business of the Company.
14. ENTIRE AGREEMENT.
This Agreement (a) represents the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof and
supersedes, cancels and terminates all other negotiations, agreements,
arrangements and understandings, oral or written, between such parties with
respect thereto, and (b) constitutes the sole agreement between the parties with
respect to this subject matter.
15. AMENDMENT.
No amendment or modification of this Agreement and no waiver
hereunder or thereunder shall be valid or binding unless set forth in writing,
duly executed by the party against whom enforcement of the amendment,
modification or waiver is sought.
16. GOVERNING LAW.
This Agreement shall be subject to and governed by the laws of
the Commonwealth of Virginia (excluding the choice of law rules thereof).
17. ARBITRATION.
Except as otherwise provided in Section 8, in the event of any
dispute between the parties under or relating to this Agreement or otherwise
relating to Executive's employment by the Company, such dispute shall be
submitted to and settled by arbitration in Arlington, Virginia in accordance
with the rules and regulations of the American Arbitration Association then in
effect. The arbitrators shall have the right and authority to determine how
their award or decision as to each issue and matter in dispute may be
implemented or enforced. Any decision or award shall be final and conclusive on
the parties; judgment upon any award or decision may be entered in any competent
jurisdiction in the Commonwealth of Virginia or elsewhere; and the parties
hereto consent to the application by any party in interest to any court of
competent jurisdiction for confirmation or enforcement of such award.
18. ASSIGNMENT.
This Agreement shall not be assignable by either party hereto
without the prior written consent of the other party hereto, except that without
securing such consent the
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Company may assign its rights and obligations hereunder to any successor entity
to the Company by operation of law or otherwise.
19. HEADINGS.
Headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
20. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original hereof, and all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Employment Agreement, or have caused this Employment Agreement to be duly
executed on their behalf, as of the day and year first hereinabove set forth.
XXXXXX XXXXXX, INC.
By: /s /XXXXX-XXXXXX XXXXXX
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Name: XXXXX-XXXXXX XXXXXX
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Title: Chairman
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XXXXXXXX X. XXXXXX
/s/ XXXXXXXX X. XXXXXX
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