Exhibit 10(aa)
AGREEMENT
AGREEMENT (this "Agreement"), dated as of November 6, 1998, by and between
Xxxxx X. Xxxxxxx, a resident of the State of Maryland ("Xxxxxxx"), and ICF
Xxxxxx International, Inc., a Delaware corporation (the "Company"). As used in
this Agreement, unless the context indicates otherwise, the term "ICF" shall be
deemed to refer to ICF Xxxxxx International, Inc. and each and every one of its
affiliated entities.
WITNESSETH
WHEREAS, Xxxxxxx presently serves as a member of the Board of Directors and
Chairman and Chief Executive Officer of ICF Xxxxxx International, Inc. and as a
director and officer of certain subsidiaries and affiliates of ICF Xxxxxx
International, Inc.; and
WHEREAS, Xxxxxxx and ICF Xxxxxx International, Inc. are parties to an
Employment Agreement dated May 19, 1997, including any attachments thereto and
any other agreements referred to therein or entered into pursuant thereto
(collectively, the "Executive Agreement"); and
WHEREAS, Xxxxxxx and ICF wish consensually to terminate the Executive
Agreement and sever the employment relationship between Xxxxxxx and ICF.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises hereinafter provided and of the actions taken pursuant thereto, the
parties agree as follows:
1. Effective Date. This Agreement shall be executed and become effective
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November 6, 1998 (the "Effective Date").
2. Termination of Executive Agreement. As of the Effective Date, the Executive
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Agreement shall be deemed terminated and shall have no further force or effect.
Xxxxxxx and ICF 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
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Effective Date, Xxxxxxx shall be deemed to have resigned from all corporate
offices of ICF, and from all offices and directorships of ICF's subsidiaries,
joint ventures, and affiliated companies, organizations and entities except as
expressly provided in Section 6(b). Xxxxxxx' employment by ICF shall be deemed
to have terminated as of the close of business on the Effective Date. Xxxxxxx
shall not be deemed to have resigned from the ICF Xxxxxx International, Inc.
Board of Directors. Following November 1, 1998 he shall be compensated for
service as such director on the same basis as other non-employee directors.
4. Records and Bank Accounts. As soon as practicable after the Effective Date,
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ICF shall take such steps as may be necessary to (a) reflect in the corporate
records of ICF, its subsidiaries, joint ventures, and affiliated companies,
organizations and entities that Xxxxxxx has resigned as an officer of the
Company and as an officer and director of ICF's subsidiaries, joint ventures,
and affiliated companies, organizations and entities; and (b) remove Xxxxxxx as
an authorized signatory on all corporate bank accounts.
5. Payment for Cancellation of the Employment Agreement and Release. In
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consideration of the cancellation of the Executive Agreement and the execution
by Xxxxxxx of
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the Release attached hereto, the following payments shall be made to Xxxxxxx and
by wire transfer or direct deposit as directed by Xxxxxxx, except that Xxxxxxx
hereby requests voluntary withholding of Federal and state wage-type withholding
in respect of such amount (calculated as though such amount were wages and in
accordance with Xxxxxxx' elections):
(a) $150,000 within five (5) business days after the Effective Date;
and
(b) $233,333.33 on or before each of January 15, February 15 and March
15, 1999.
Within five (5) business days after the Effective Date, the Company will arrange
to have issued to Xxxxxxx either a payment bond or one or more standby letters
of credit with terms acceptable to Xxxxxxx that will assure the payments due to
be made to Xxxxxxx pursuant to clause (b) above.
6. Consultation.
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(a) During the period from the Effective Date until January 31, 1999,
Xxxxxxx will consult with ICF as and when requested by the Company's Chief
Executive Officer or the Board of Directors, such consultations to be at
times reasonably convenient to both Xxxxxxx and ICF. Xxxxxxx shall be
compensated biweekly for services provided pursuant to this Section 6(a) at
the rate of $425,000 annually through January 31, 1999. ICF shall reimburse
Xxxxxxx for reasonable expenses incurred in connection with his consultation
with ICF, subject to normal ICF reimbursement procedures.
(b) Xxxxxxx agrees to remain as Chairman of the Board of Managers of
Xxxxxx-Xxxx Company, LLC until December 31, 1998. Unless requested to remain
in that position, he shall be deemed to have resigned from such position as
of December 31, 1998.
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7. Health and Insurance Benefits. Until January 31, 1999, Xxxxxxx and his
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dependents shall receive the same health, welfare and life insurance benefits
that would have been made available to them had Xxxxxxx continued as an
employee, and Xxxxxxx' family health benefits shall continue thereafter until
April 30, 1999. After April 30, 1999, Xxxxxxx may elect to continue his family
health benefits provided through ICF to the extent permitted by Federal COBRA
laws in effect on the Effective Date. For purposes of COBRA compliance, the date
on which Xxxxxxx' health benefits terminate shall be April 30, 1999. Except as
specifically provided in this Section 7, all health, welfare and insurance
benefits shall terminate on January 31, 1999.
8. Options. ICF and Xxxxxxx acknowledge and agree that (a) Xxxxxxx holds and
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shall continue to hold the following options to purchase shares of ICF common
stock granted pursuant to ICF's Stock Incentive Plan and (b) such options have
the expiration dates set forth below:
Fully
Total Vested Unvested Vesting Vested Expiration
Grant Date Options Options Options Schedule Date Date Price
9/1/94 150,000 150,000 0 4 years 5/15/98 11/15/99 $2.51
1/24/97 40,000 10,000 30,000 4 years 1/24/01 1/24/02 $2.23
Notwithstanding the terms of the grant of the options granted on January 24,
1997, such options shall be fully vested as of the Effective Date. Prior to the
expiration dates referred to above, the options referred to in this Section 8
shall be exercisable by Xxxxxxx or, in the event of his death, his estate.
9. Restricted Stock. ICF and Xxxxxxx acknowledge that Xxxxxxx holds 20,000
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shares of Restricted Stock granted to him pursuant to the ICF Stock Incentive
Plan on March 4,
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1997, of which 6,667 shares are presently vested, and the balance of 13,333
shares shall vest, subject to a restriction on sale prior to March 4, 2000.
Consistent with the terms of the Executive Agreement, and pursuant to the ICF
Stock Incentive Plan, Xxxxxxx is hereby awarded 200,000 shares of Common Stock
which shall be issued, and fully vested, on the first anniversary of the
Effective Date or, if earlier, the occurrence of a sale of the stock, or merger
or consolidation, of the Company to or with another entity, sale of all or
substantially all of the Company's assets, or other event, in each case
resulting in a change of control of the Company which is reported on a Form 8-K
(any such sale or transaction, a "Control Transaction"). Certificates for the
shares of Restricted Stock referred to in the immediately preceding sentence
shall be delivered to Xxxxxxx (or, in the event of his death, his estate) on the
appropriate date referred to in the immediately preceding sentence.
10. Loans.
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(a) ICF and Xxxxxxx acknowledge that the Company has made loans to
Xxxxxxx of the aggregate principal amounts of $922,740.00 on which there
had accrued $451,480.20 of interest as of June 30, 1998 (aggregating
$1,374,220.20 of principal and interest as of June 30, 1998), and that such
loans (the "Loans") are evidenced by the documents attached as Exhibit A
(the "Loan Documents"). The Loans are due and payable on December 31, 1999.
In the event that the Company has not sold the Loans to a third party on or
before January 31, 1999, if Xxxxxxx does not pay the Loans in full on or
before December 31, 1999, the Company shall cancel the 130,665 shares of
the Company's common stock pledged as collateral for the Loans pursuant to
the Loan Documents (the "Pledged Shares"). The difference between the
Market Value (as defined in the Loan Documents) of the Pledged Shares and
the outstanding principal of, and unpaid interest on, the Loans as of the
date of cancellation of the Pledged
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Shares shall (i) if positive, be paid to Xxxxxxx promptly and (ii) if
negative, to the extent permitted by applicable law, be reported to Xxxxxxx
and the Internal Revenue Service as capital gain on the disposition of the
Pledged Shares.
(b) In the event that a Control Transaction closes prior to December
31, 1999, (i) if shares of the Company's common stock remain outstanding
after such closing, the Company shall make arrangements such that the
acquiring, surviving or successor entity in the Control Transaction, as the
case may be (the "Successor Entity"), shall acquire the Loans and observe
the provisions of Section 10(a) following the closing of the Control
Transaction, and (ii) if shares of the Company's common stock will not
remain outstanding after such closing, (x) the Company shall give Xxxxxxx
not less than ten (10) business days' advance notice of such closing, (y)
Xxxxxxx shall have the right to require the Company to cancel the Pledged
Shares in satisfaction of the Loans prior to such closing, and (z) if
Xxxxxxx exercises such right, the Company shall report the transaction as
contemplated by Section 10(a).
(c) If Xxxxxxx presents to the Company a party willing to purchase the
Loans for the Market Value (as defined in the Loan Documents) of the
Pledged Shares on or before January 31, 1999, the Company shall sell the
Loans to that party at that price if paid in cash.
11. Indemnification and Notice Concerning Nonrenewal of Directors and Officers
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Insurance Coverage.
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(a) ICF acknowledges that its Certificate of Incorporation and By-Laws
and the charters and by-laws of certain of its direct and indirect
subsidiaries and pension trusts include provisions designed to provide to
former officers, directors and trustees 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,
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director or trustee of ICF or such subsidiaries or trusts. ICF shall, and
shall cause such subsidiaries and trusts to, continue to provide
indemnification to Xxxxxxx under such provisions to the maximum extent
permitted by applicable law.
(b) So long as ICF maintains directors and officers liability insurance
coverage, or liability insurance for the trustees of its pension trusts,
Xxxxxxx shall be covered by such insurance, with respect to his tenure with
ICF, on the same terms as other existing and former officers, directors and
trustees. If, for any reason, ICF shall not continue to have such insurance
coverage in effect on terms substantially comparable to those presently in
effect, ICF shall provide Xxxxxxx with written notice of the cancellation
or nonrenewal of such coverage not less than 20 days prior to the
effectiveness of such cancellation or nonrenewal.
12. Employment References. Nothing in this Agreement shall prevent either
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party from stating the fact that Xxxxxxx was employed by ICF, 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 ICF on or
about the Effective Date.
13. Proprietary Information and Business and Personal Property
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(a) Xxxxxxx will not directly or indirectly disclose any confidential
records, information, documents, data, formulae, specifications or other
trade secrets owned by ICF to any person, or use any such information,
except (i) as appropriate in connection with the activities contemplated by
Section 6 or (ii) pursuant to court order or as a result of a valid order,
subpoena or discovery request (and in the case of such disclosure Xxxxxxx
will provide ICF with written notice of the same sufficiently in advance of
the required disclosure date to allow ICF to lodge appropriate objections
to such disclosure). The immediately preceding sentence shall not apply to
information: (x) disclosure of which is required by law or by process
lawfully issued;
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(y) which has been disclosed to Xxxxxxx or to a third party by a person not
under a duty of confidentiality with respect to that information; or (z)
which later enters the public domain through no fault or breach of duty by
Xxxxxxx.
(b) Xxxxxxx shall have no ownership interest in any records, files,
information, documents, or the like that belong to ICF which Xxxxxxx has
used, prepared or come into contact with during his employment by ICF, and,
except as appropriate in connection with the activities contemplated by
Section 6, Xxxxxxx shall not remove written copies thereof from the
premises of ICF or any of its affiliates without ICF's written consent.
Within ten business days after the Effective Date, Xxxxxxx shall have
returned to ICF all ICF property (other than the cellular telephone, laptop
computer, calculator and facsimile machine referred to in Section 13(c))
that Xxxxxxx has in his possession. Nothing in this Agreement shall limit
Xxxxxxx'x right to remove personal effects from his office within five
business days after the Effective Date.
(c) Xxxxxxx shall be entitled to the ICF-owned facsimile machine,
laptop computer, calculator and cellular telephone currently in Xxxxxxx'x
possession, provided that, except as contemplated by Section 6, Xxxxxxx
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shall be responsible for the cost of cellular telephone service on such
cellular telephone following the conclusion of his service as a consultant
hereunder. Until July 31, 1999 or until Xxxxxxx obtains new employment,
whichever occurs first, ICF will allow Xxxxxxx to have access to his voice
mailbox on the ICF telephone system and to his ICF e-mail address.
14. No Disparaging Statements. Except as required by applicable law or legal
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process:
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(a) Each of ICF and Xxxxxxx covenant and agree that following the
Effective Date neither of them nor their or its officers, directors,
affiliates, agents and/or employees shall make disparaging statements
concerning the others (for this purpose, a disparaging statement shall
refer to a statement or statements that, individually or in the aggregate,
have a materially detrimental effect on the business affairs of ICF or
Xxxxxxx, as the case may be); and
(b) Except for the press release attached as Exhibit D, neither the
Company, nor any director or executive officer of the Company other than
Xxxxxxx and Xxxx Xxxxxx shall make any public statement or statement to the
press concerning Xxxxxxx or his tenure with the Company.
15. Confidentiality of Agreement. Except as required by applicable law or
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legal process or as necessary to fulfill the terms of this Agreement or the
General Releases incorporated herein, or in connection with a party's family,
business, or tax affairs (in which case disclosure shall be on a confidential
basis to the extent practicable), the parties shall not disclose the terms or
provisions of this Agreement or such General Releases, or the fact of their
existence, to any person or entity.
16. No Admissions. Nothing contained in this Agreement or the General Releases
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incorporated herein 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.
17. No Third Party Claims. Each party represents and warrants that no other
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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
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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 Releases contemplated
hereby.
18. Full Releases. Each party agrees and acknowledges that the consideration
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received by it or him for this Agreement and the General Releases incorporated
herein, and for the execution hereof and thereof, shall constitute full payment,
satisfaction, discharge, compromise and release of and from all matters for
which the other party has mutually released it or him herein and in such General
Releases
19. Expenses. ICF shall reimburse Xxxxxxx for all fees and expenses of
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Xxxxxxx'x counsel incident to the negotiation of this Agreement, up to a maximum
of $10,000. The amount of such reimbursement shall be considered a payment in
cancellation of rights under the Executive Agreement. Except as provided in the
first sentence of this Section 19, 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.
20. No Third Party Beneficiaries. Except as expressly stated herein, the
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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.
21. Advice of Counsel. The parties acknowledge that they have been advised by
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competent legal counsel in connection with the execution of this Agreement, that
they have read
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each and every paragraph of this Agreement and that they understand their
respective rights and obligations. Xxxxxxx declares that he has completely read
this Agreement, fully understands its terms and contents, and freely,
voluntarily and without coercion enters into this Agreement.
22. Entire Agreement. This Agreement constitutes the entire agreement of the
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parties with respect to the subject matter hereof, and all prior negotiations
and representations are merged herein or replaced hereby.
23. Severability. If any provision of this Agreement is held illegal, invalid
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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.
24. Governing Law. This Agreement shall be construed and enforced in
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accordance with the law of the Commonwealth of Virginia.
25. Releases and Effectiveness. This Agreement and General Releases in the
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forms attached hereto as Exhibits B and C, which are incorporated herein by
reference, have been executed by or on behalf of Xxxxxxx and ICF on the dates
shown opposite their respective signatures below, and this Agreement and such
General Releases are effective as of the Effective Date.
26. Disputes. In the event that any dispute arises between the parties hereto
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pertaining to the subject matter of this Agreement and the parties are unable to
resolve such dispute within a reasonable time through negotiations, the parties
shall attempt to resolve such dispute pursuant to a mutually agreed upon
alternate dispute resolution mechanism. Such resolution of the dispute shall be
initiated by written notice given by one party to the other. If within 10 days
after submission of such notice the parties have not agreed upon an alternate
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dispute resolution mechanism, the dispute shall be submitted to arbitration in
Fairfax County, Virginia. In the event the parties are unable to agree on an
alternate dispute resolution mechanism and the dispute is to be resolved
pursuant to arbitration, each party shall appoint an arbitrator within 20 days
after the original notice of the dispute, and the two arbitrators so chosen
shall promptly appoint a third arbitrator. If either party fails to name an
arbitrator as aforesaid, such arbitrator shall be designated by the American
Arbitration Association. If any arbitrator becomes disabled, resigns or is
otherwise unable to discharge the arbitrator's duties, the arbitrator's
successor shall be appointed in the same manner as such arbitrator was
appointed. The parties shall not be permitted to conduct discovery in
connection with the arbitration, and, subject only to the availability of the
arbitrators, the arbitration hearing shall be held within 30 days after
appointment of the third arbitrator. Except as aforesaid, the arbitration shall
be conducted under the applicable rules of the American Arbitration Association.
Any determination of the arbitrators shall be binding and conclusive upon the
parties hereto. Application may be made by either party to any court having
jurisdiction thereof for judicial confirmation of any determination by the
arbitrators and/or for an order of enforcement of any such decision.
27. Counterparts. This Agreement may be executed in counterparts, all of which
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shall be considered one and the same agreement, and shall become effective on
the Effective Date.
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IN WITNESS WHEREOF, Xxxxx X. Xxxxxxx and ICF Xxxxxx International, Inc.
have executed this Agreement.
ICF XXXXXX INTERNATIONAL, INC. XXXXX X. XXXXXXX
By:
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Its Duly Authorized Representative Xxxxx X. Xxxxxxx
Dated: November 6, 1998 Dated: November 6, 1998
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EXHIBIT A
LOAN DOCUMENTS
EXHIBIT B
GENERAL RELEASE
I, XXXXX X. XXXXXXX, on behalf of myself and my heirs, successors, agents,
executors, administrators, attorneys and assigns, in consideration of the terms
of the Agreement effective as of November 6, 1998 by and between ICF Xxxxxx
International, Inc. ("ICF") and myself (the "Agreement") and the execution of a
General Release ("Release") by ICF, with effect as of November 6, 1998, hereby
release and forever discharge ICF and any and all of its present, former and
future affiliated entities, subsidiaries, departments, officers, directors,
employees, representatives, agents, attorneys, successors and assigns, from any
and all claims and causes of action (whether known or unknown) which I have
against them, in law or equity, relating to or arising under: Federal, Virginia,
or other state or local law; any employment contract or related agreements; any
employment statute or regulation; any employment discrimination law, including
but not limited to Title VII of the Civil Rights Act of 1964, as amended, and
the Age Discrimination in Employment Act of 1967, as amended; the Employee
Retirement Income Security Act of 1974, as amended; any other Federal, state, or
local civil rights, pension or labor law; contract law; tort law; and common
law, including but not limited to wrongful discharge or misrepresentation or
infliction of emotional distress; provided, however, that I do not hereby
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release ICF from any of its obligations under the Agreement and/or under the
terms of an employee benefit plan, program or arrangement (other than any such
plan, program or arrangement providing for the payment of severance benefits).
For purposes of this Release, ICF shall be deemed to include each and every one
of its affiliated entities described in the Agreement.
I further agree not to xxx or otherwise institute or cause to be instituted
or in any way voluntarily participate in the prosecution of any complaints or
charges against any persons or entities released herein in any Federal, state,
District of Columbia or other court, administrative agency or other forum
concerning any claims released herein.
Except as required by law or as necessary to fulfill the terms of the
Agreement or this Release, or as necessary in connection with personal business
or tax affairs (in which case disclosure shall be on a confidential basis to the
extent practicable), I agree not to disclose the terms or provisions of this
Release, or the fact of its existence, to any person or entity.
I understand and agree that nothing contained in this Release is to be
considered an admission by ICF of any wrongdoing under any Federal, state, or
local statute, public policy, tort law, contract law, or common law.
I acknowledge that I have been advised to consult with an attorney prior to
executing this Release. I further acknowledge that I have been given a period of
at least twenty-one (21) days within which to consider and execute this Release,
unless I voluntarily choose to execute this Release before the end of the said
twenty-one (21) day period. Once executed, I understand that I have seven (7)
days following the execution of this Release to revoke it, and that this Release
is not effective or enforceable until after said seven (7) day period.
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I acknowledge that I have read this Release, that I understand it, and that
I am executing it freely and voluntarily. I further understand that once this
Release becomes effective (after the seven (7) day revocation period), it can
only be altered, revoked or rescinded with the express written permission of
ICF.
I further acknowledge and agree that, in the event I exercise my revocation
rights within the specified seven-day period, all rights and obligations under
this Release and the Agreement will become null and void.
This Release is executed in connection with, and is subject to terms of,
the Agreement.
Date: November 6, 1998
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Xxxxx X. Xxxxxxx
Subscribed and sworn to before me this ____ day of November, 1998.
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Notary
My commission expires:
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ELECTION TO EXECUTE
PRIOR TO EXPIRATION OF
TWENTY-ONE DAY CONSIDERATION PERIOD
I, Xxxxx X. Xxxxxxx, understand that I have at least twenty-one (21) days
within which to consider and execute the above General Release. However, after
consulting counsel, I have freely and voluntarily elected to execute the
General Release before the twenty-one (21) day period has expired.
Date: November 6, 1998
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Xxxxx X. Xxxxxxx
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EXHIBIT C
GENERAL RELEASE
ICF Xxxxxx International, Inc. ("ICF"), on behalf of ICF and all of its
current, former or future affiliated entities, subsidiaries, departments,
officers, directors, employees, representatives, agents, attorneys, successors
and assigns, in consideration of the terms of the Agreement effective as of
November 6, 1998 by and between Xxxxx X. Xxxxxxx ("Xxxxxxx") and ICF (the
"Agreement") and the execution of a General Release ("Release") by Xxxxxxx, with
effect as of November 6, 1998, hereby releases and forever discharges Xxxxxxx
and his heirs, successors, agents, executors, administrators, attorneys and
assigns, from any and all claims and causes of action (whether known or unknown)
which ICF has against him, in law or equity, relating to or arising under:
Federal, Virginia or other state or local law; any employment contract; any
employment statute or regulation, contract law, tort law; and common law,
including but not limited to actions for fraud and breach of contract; provided,
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however, that ICF does not hereby release Xxxxxxx from any of his obligations
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under the Agreement.
ICF will not xxx or otherwise institute or cause to be instituted or in any
way voluntarily participate in the prosecution of any complaints or charges
against Xxxxxxx or the other persons released herein in any Federal, state,
District of Columbia, or other court, administrative agency or other forum
concerning any claims released herein.
Except as required by law or as necessary to fulfill the terms of the
Agreement or this Release, or as necessary in connection with ICF's business,
legal or tax affairs (in which case
disclosure shall be on a confidential basis to the extent practicable), ICF
agrees not to disclose the terms or provisions of this Release, or the fact of
its existence, to any person or entity (including employees of ICF).
ICF understands and agrees that nothing contained in this Release is to be
considered an admission by Xxxxxxx of any wrongdoing under any Federal, state,
or local statute, public policy, tort law, contract law, or common law.
ICF acknowledges that this Release can be altered, revoked or rescinded
only with the express written permission of Xxxxxxx.
This Release is executed in connection with, and is subject to the terms
of, the Agreement.
ICF XXXXXX INTERNATIONAL, INC.
Date: November 6, 1998 By:
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Its Duly Authorized Representative
Subscribed and sworn to before me this ______ day of November, 1998.
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Notary
My commission expires:
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EXHIBIT D
PRESS RELEASE
