Exhibit 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 1 day of
December, 2001 (the "Effective Date") by and between OAO TECHNOLOGY SOLUTIONS,
INC. (the "Company") and XXXXXXX XXXXX ("Executive").
WHEREAS, Executive serves the Company currently as its President, Chief
Executive Officer and a member of its Board of Directors; and
WHEREAS, the Company desires to continue to employ Executive and thereby
retain the continued benefit of Executive's knowledge and experience, and
Executive desires to accept such continued employment pursuant to the terms of
this Agreement.
NOW THEREFORE, in consideration of these premises and the mutual promises
contained herein, and intending to be legally bound hereby, the parties agree as
follows:
Definitions. Capitalized terms used herein will have the meanings set forth in
the preamble of this Agreement, or as set forth below:
"Annual Bonus" means, as to any fiscal year ending during the Term, the bonus
payable to Executive pursuant to Section 4.1 of this Agreement with respect to
that year.
"Annual Salary" means the base salary paid to Executive pursuant to Section 3 of
this Agreement, as the same may be increased from time to time.
"Average Annual Bonus" means, as of any given date, the average of the Annual
Bonus paid by the Company to Executive (whether pursuant to this Agreement or
prior to the execution of this Agreement) for the three fiscal years preceding
that date.
"Benefits" means the employee benefits described in Section 4.2 of this
Agreement.
"Board" means the Board of Directors of the Company.
"Cause" exists when Executive (a) is convicted in a court of law of a felony
involving moral turpitude, or enters a plea of guilty or nolo contendere to such
crime; (b) is dishonest or engages in willful misconduct which materially,
adversely affects the reputation or business activities of the Company; (c)
engages in alcohol abuse or use of controlled drugs (other than in accordance
with a physician's prescription); (d) fails or refuses to perform his material
duties in accordance with the terms of this Agreement or to carry out in all
material respects the reasonable and lawful directives of the Board; provided,
however, that termination pursuant to this subsection (d) will constitute
termination for Cause only if Executive has first received written notice from
the Board stating with specificity the nature of such failure or refusal and, if
requested by Executive within 10 days thereafter, Executive is afforded a
reasonable opportunity to be heard before the Board; or (e) engages in any act
of fraud, embezzlement or similar misconduct involving the Company or any of its
affiliates.
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"Change of Control" means the earliest to occur of the following: the approval
by the shareholders of the Company (or, if shareholder approval is not required,
the approval by the Board of) an agreement providing for (i) the merger or
consolidation of the Company with another corporation where the shareholders of
the Company, immediately prior to the merger or consolidation, will not
beneficially own, immediately after the merger or consolidation, shares
entitling such shareholders to more than 50% of all votes to which all
shareholders of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote), (ii) the sale or other disposition of all
or substantially all of the assets of the Company, or (iii) a liquidation or
dissolution of the Company; or the replacement of a majority of the members of
the Board during any 12 month period by directors whose appointment or election
is not endorsed or approved by a majority of the incumbent directors.
"COBRA" means 29 U.S.C.ss.ss.1161 - 1169.
"Code" means the Internal Revenue Code of 1986, as amended.
"Expiration Date" means the second anniversary of the Effective Date; provided,
however, that unless either party provides written notice of non-renewal of this
Agreement at least three months prior to the second anniversary of the Effective
Date (or any subsequent anniversary of the Effective Date, if this agreement is
extended pursuant to this Section 1.10), then the Expiration Date will be
extended automatically for an additional year.
"Good Reason" means (a) a material, adverse change in Executive's title,
authority or duties (including the assignment to Executive of duties materially
inconsistent with his position as Chief Executive Officer of the Company); (b)
any encouragement, request or demand by any member of the Board that Executive
engage in acts that, in the reasonable judgment of Executive, are illegal or
unethical; (c) a reduction or other material adverse change in Executive's
Annual Salary or the percentage of Annual Salary eligible for an Annual Bonus or
Benefits that is not cured within 15 days after delivery to the Company of
written notice thereof; (d) any other material breach by the Company of this
Agreement or any other agreement between the Company and Executive that is not
cured within 15 days after delivery to the Company of written notice thereof;
(e) a failure to reelect Executive to the Board; (f) a relocation of the
Company's principal executive offices in Greenbelt, Maryland by more than 25
miles; and (g) notice by the Company of non-renewal of the Agreement as
described in Section 1.10.
"Indemnification Agreement" means any obligation of the Company to indemnify
Executive for his acts performed as an officer or director of the Company,
whether pursuant to this Agreement, a separate indemnification agreement by and
between Executive and the Company, the by-laws of the Company or otherwise.
"Information Technology Solutions" means (a) application software development
and maintenance, (b) claims processing software development for the healthcare
industry, and (c) fixed price, multiple year infrastructure management that is
sold on a prime or subcontractor basis.
"Non-Qualified Plan" means any non-qualified deferred compensation plan
maintained by the Company from time to time.
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"Parachute Excise Tax" means the federal excise tax levied on certain "excess
parachute payments" under Section 4999 of the Code (or any successor provision
thereto).
"Restrictive Covenants" means the provisions contained in Section 5.1 of this
Agreement.
"Severance Period" means, as of any given date, a period equal to 15 months.
"Term" means the period beginning on the Effective Date and ending on the
earlier of: (a) the Expiration Date, or (b) the date that Executive's employment
with the Company is terminated for any reason.
"Total Payments" means the total of all payments made to Executive pursuant to
this Agreement (other than payments made pursuant to Section 6.2(b)(ii)),
together with any other payments that Executive has a right to receive from the
Company or any of its affiliates.
Duration of Agreement; Duties. Executive's employment by the Company may be
terminated at any time; provided, however, that during the Term, the terms and
conditions of Executive's employment by the Company will be as herein set forth.
During the Term, Executive will serve as the Company's President and Chief
Executive Officer and will devote his best efforts and substantially all of his
business time and services to the Company to perform such duties as may be
customarily incident to such position and as may reasonably be assigned from
time to time by the Board. Executive will render his services hereunder to the
Company and its affiliates and will use his best efforts, judgment and energy in
the performance of the duties assigned to him. Executive will perform his duties
primarily at the Company's principal executive offices in Greenbelt, Maryland,
provided that Executive's duties may require him to travel and to perform
services at other locations from time to time.
Annual Salary. Executive hereby agrees to accept, as compensation for all
services rendered by Executive in any capacity hereunder, an initial base salary
at an annual rate of $335,000 commencing on the Effective Date and continuing
until expiration or termination of the Term. This Annual Salary and all other
cash payments made under this Agreement will be inclusive of all applicable
income, social security and other taxes and charges which are required by law to
be withheld from Executive's wages by the Company, and which will be withheld
and paid in accordance with the Company's normal payroll practices from time to
time in effect. The Annual Salary will be reviewed on an annual basis by the
Compensation Committee of the Board and may be increased from time to time with
the approval of the Board; provided, however, that the Annual Salary will be
increased by not less than five percent (5%) as of the first day of each fiscal
year of the Company.
Bonus and Benefits.
Annual Bonus. With respect to each fiscal year of the Company ending during the
Term, Executive will be eligible to receive an Annual Bonus to the extent
Executive meets or exceeds specified personal performance goals and/or the
Company meets or exceeds specified corporate performance goals. Year One. With
respect to the current fiscal year of the Company, Executive's Annual Bonus will
be paid in accordance with the bonus plan previously approved by the Board.
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Subsequent Years.
In General. For each fiscal year of the Company after the current fiscal year,
Executive will be eligible to receive an Annual Bonus of up to 100% of his
Annual Salary based on the achievement of corporate and personal performance
goals. The Annual Bonus will be payable in two parts: (A) 20% of Annual Salary
will be payable upon fulfillment of personal performance goals ("Individual
Annual Bonus") and (B) 80% of Annual Salary will be payable upon achievement of
corporate performance goals ("Corporate Annual Bonus").
Establishment of Performance Goals. Prior to the first quarter of each fiscal
year, Executive and the Compensation Committee of the Board will agree on the
following items with respect to that year: (A) all Corporate Annual Bonus
performance goals (which will be based on achieving the Company's annual
budget), and (B) with respect to the Individual Annual Bonus (1) the methodology
for measuring individual performance, (2) the threshold(s) at which a partial
Individual Annual Bonus will be payable, and (3) the amount of any partial
Individual Annual Bonus payable at each such threshold.
Partial Achievement of Goals. If performance goals are substantially (but not
fully) achieved, Executive will be entitled to receive a partial Annual Bonus,
as follows:
Partial Achievement of Corporate Goals. If less than 85% of the corporate goals
are achieved, no Corporate Annual Bonus will be paid. If 85% of the corporate
goals are achieved, a Corporate Annual Bonus equal to 35% of Annual Salary will
be payable to Executive. If the portion of the corporate goals achieved is more
than eighty-five percent (85%) and less than one hundred twelve percent (112%),
the amount of the Corporate Annual Bonus payable to Executive will equal a
percentage of Annual Salary determined in accordance with the following formula,
where "x" is the percentage of the corporate goals achieved:
35 + [(x - 85) * 1.67]
Partial Achievement of Personal Goals. A partial Individual Annual Bonus will be
determined in accordance with the methodology developed under Section
4.1(b)(ii), above.
Superior Performance. If greater than one hundred twelve (112%) of the corporate
goals are achieved, Executive will be entitled to receive an incremental annual
bonus (the "Superior Performance Bonus") up to an additional 50% of Executive's
Annual Salary based on a formula to be established by the Compensation
Committee. Any amounts paid as a Superior Performance Bonus will be included as
Annual Bonus for purposes of this agreement.
Measurement of Performance and Adjustment of Goals. The determination of whether
corporate performance goals have been achieved for any fiscal year will be made
with reference to the Company's audited financial statements for that fiscal
year. From time to time, the Board, with the consent of Executive (which consent
will not be unreasonably withheld), may make adjustments to the personal or
corporate performance goals so that required departures from the Company's
operating budget, changes in accounting principles, acquisitions, dispositions,
mergers, consolidations and other corporate transactions, and other factors
influencing the achievement or calculation of those goals do not affect the
operation of this Section 4.1 in a manner inconsistent with the achievement of
its intended purposes.
Payment Timing. Any amount payable pursuant to this Section 4.1 will be paid as
soon as practicable following the Board's approval of the Company's audited
financial statements for the relevant fiscal year.
Benefits.
Generally. Executive will be entitled to participate in all benefit plans,
policies or arrangements sponsored or maintained by the Company from time to
time for its senior executive officers.
Non-Qualified Plans.
Throughout the Term, the Company will continue to maintain a Non-Qualified Plan.
For each year ending during the Term, Executive's account in the Non-Qualified
Plan will be credited with an employer contribution at least equal (measured as
a percent of Annual Salary) to the employer contribution that was credited under
the OAO Technology Solutions, Inc. Executive and Director Deferred Compensation
Plan with respect to 2000 and such contribution will vest at least as
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rapidly as the vesting schedule contained in the OAO Technology Solutions, Inc.
Executive and Director Deferred Compensation Plan as of the date of this
Agreement and, once vested, will not be divested for any reason.
Each Non-Qualified Plan will provide that the commencement of the distribution
of Executive's account therein will not be required to commence earlier than
five (5) years following his termination of employment; provided, however, that
each Non-Qualified Plan will also permit Executive to elect to receive a lump
sum distribution of any portions of his vested account at any time upon payment
of a 10% early distribution penalty.
Other Benefits. Executive will be entitled to the benefits specified in the
attached Exhibit A.
Vacation. Executive will be entitled to paid vacation during each fiscal year
(taken consecutively or in segments) in an amount that is (i) reasonable given
Executive's position, duties and responsibilities hereunder and (ii) reasonably
consistent with proper performance by Executive of his duties and
responsibilities hereunder. Such vacation will accrue and be scheduled in
accordance with the Company's standard policies and practices as in effect from
time to time. Any accrued but unused vacation may be carried over to subsequent
years or, at Executive's elective, cashed out annually.
Expenses. The Company will pay or reimburse Executive for all reasonable
business, entertainment and travel expenses incurred in the course of his
employment in accordance with the Company's standard policies and practices as
in effect from time to time.
Non-Compete; Confidentiality; Intellectual Property. Executive agrees to be
bound by the Restrictive Covenants set forth in this Section 5.
Restrictive Covenants.
Non-Compete.
Executive agrees that during the Term and for a period of 15 months thereafter,
or such lesser term, but not less than 6 months, as the Board may determine
within 60 days of any such termination, Executive will not, without prior
written approval of the Board, directly or indirectly through any other person,
firm, company or entity, whether individually or in conjunction with any other
person, or as an employee, agent, consultant, representative, partner or holder
of any interest in any other person, firm, company or other association: (A)
engage, participate or become interested in any other business engaged in the
provision of Information Technology Solutions; (B) solicit, entice or induce any
Customer (as defined below) to engage any other person, firm or company to
provide them with Information Technology Solutions or to cease doing business
with the Company, and Executive will not approach any such person, firm or
company for such purpose or authorize or knowingly approve the taking of such
actions by any other person; or (C) solicit, entice or induce any person who
presently is or at any time during the Term is an employee of the Company to
become employed by any other person, firm or company or to leave their
employment with the Company, and Executive will not approach any such employee
for such purpose or authorize or knowingly approve the taking of such actions by
any other person. For purposes of this Section 5, a "Customer" means any person
or entity which at the time of determination shall be, or shall have been within
two years prior to such time, a client, customer, distributor or reseller of the
Company.
Nothing in the foregoing will prohibit Executive from investing in the
securities of any company having securities listed on a national securities
exchange, provided that such investment does not exceed 5% of any class of
securities of any company, and provided that such ownership represents a passive
investment and that neither Executive nor any group of persons including him, in
any way, either directly or indirectly, manages or exercises control of any such
company, guarantees any of its financial obligations, otherwise takes any part
in its business, other than exercising his rights as a shareholder, or seeks to
do any of the foregoing.
Confidentiality. Executive acknowledges that during the term of his employment,
he will have access to confidential information of the Company, including
information about "Developments" (as defined in Section 5.1(c)), business plans,
costs, customers, profits, markets, sales, products, key personnel, pricing
policies, operational methods and other business affairs and methods and other
information not available to the public or in the public domain (hereinafter
referred to as "Confidential Information"). In recognition of the foregoing,
Executive covenants and agrees that, except as required by his duties to the
Company, Executive will keep secret all Confidential Information of the Company
and will not, directly or indirectly, either during the Term or at any time
thereafter while such Confidential Information remains confidential, disclose or
disseminate to anyone or make use of, for any purpose whatsoever except for the
benefit of the Company in the course of his
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employment, any Confidential Information, and upon termination of this
employment, Executive will promptly deliver to the Company all tangible
materials and objects containing Confidential Information (including all copies
thereof, whether prepared by Executive or others) which he may possess or have
under his control. The term "Confidential Information" will not include any
information which can be demonstrated to be generally known in the industry or
to the public other than through breach of Executive's obligations hereunder.
Ownership of Inventions and Ideas. Executive acknowledges that the Company will
be the sole owner of all the results and proceeds of Executive's service
hereunder, including but not limited to, all patents, patent applications,
patent rights, formulas, copyrights, inventions, developments, discoveries,
other improvements, data, documentation, drawings, charts, and other written,
audio and/or visual materials relating to equipment, methods, products,
processes, or programs in connection with or useful to the Company's business
(collectively, the "Developments") which Executive, by himself or in conjunction
with any other person, may conceive, make, acquire, acquire knowledge of,
develop or create during the term of Executive's employment hereunder, free and
clear of any claims by Executive (or any assignee of him) of any kind or
character whatsoever other than Executive's right to compensation hereunder.
Executive acknowledges that all copyrightable Developments will be considered
works made for hire under the Federal Copyright Act. Executive hereby assigns
and transfers his right, title and interest in and to all such Developments, and
agrees that he will, at the request of the Company, execute or cooperate with
the Company in any patent applications, execute such assignments, certificates
or other instruments, and do any and all other acts, as the Board from time to
time reasonably deems necessary or desirable to evidence, establish, maintain,
perfect, protect, enforce or defend the Company's right, title and interest in
or to any such Developments.
Rights and Remedies Upon Breach. Executive acknowledges that the Restrictive
Covenants are reasonable and necessary to protect the legitimate interests of
the Company and that the Company would not have entered into this Agreement in
the absence of the Restrictive Covenants. Executive also acknowledges that any
breach by him, willfully or otherwise, of the Restrictive Covenants will cause
continuing and irreparable injury to the Company for which monetary damages
would not be an adequate remedy. Executive will not, in any action or proceeding
to enforce any of the provisions of this Agreement, assert the claim or defense
that such an adequate remedy at law exists. In the event of any such breach by
Executive, the Company will have the right to enforce the Restrictive Covenants
by seeking injunctive or other relief in any court, without any requirement that
a bond or other security be posted, and this Agreement will not in any way limit
remedies of law or in equity otherwise available to the Company.
Extension of Restricted Period. If Executive is determined to have been in
breach of Section 5.1(a) by a court or arbitrator of competent jurisdiction,
then the duration of the restrictions contained in that section will be extended
for a period equal to the period that Executive is determined to have been in
breach of those restrictions.
Judicial Modification. If any court determines that any of the Restrictive
Covenants, or any part thereof, is unenforceable because of the duration or
geographical scope of such provision, such court will have the power to modify
such provision and, in its modified form, such provision will then be
enforceable.
Disclosure of Restrictive Covenants. The Company may disclose the existence and
terms of the Restrictive Covenants set forth in this Section 5 to any employer
that Executive may work for during the Restricted Period. Upon request of the
Company, Executive will provide the name and address of any such employer.
Termination. Executive's employment hereunder may be terminated by the Company
or Executive at any time. Upon such termination, Executive will be entitled to
the compensation and benefits as described in this Section 6.
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Termination Without Cause or for Good Reason. If Executive's employment is
terminated by the Company without Cause or by Executive for Good Reason,
Executive will be entitled to:
payment of all accrued and unpaid Annual Salary and accrued but unused
vacation days through the date of such termination;
payment of any Annual Bonus payable with respect to a fiscal year of the
Company ending prior to such termination;
continuation of health care coverage for Executive (and, to the extent
covered immediately prior to the date of the termination, his spouse and
dependents), at the same cost charged to Executive for such coverage
immediately prior to Executive's termination, until the earlier of (i) the
end of the Severance Period, or (ii) Executive's eligibility for coverage
under another employer's group health plan;
payment for reasonable executive outplacement services;
payment of monthly severance payments for the duration of the Severance
Period in an amount equal to (i) one-twelfth of his Annual Salary as of the
date of such termination, plus (ii) one-twelfth the Average Annual Bonus,
plus (iii) the monthly car allowance specified in Exhibit A;
payment of a pro-rata Annual Bonus for the fiscal year of termination,
which bonus will be determined by multiplying the Annual Bonus opportunity
for that fiscal year times (i) the formula set forth in Section 4.1
(b)(iii)(A) by annualizing the Company's earnings through the date of
termination, times (ii) a fraction, the numerator of which will be the
number of days elapsed in the fiscal year preceding Executive's
termination, and the denominator of which will 365. Such pro-rata Annual
Bonus will be paid within thirty (30) days following Executive's
termination;
accelerated vesting of equity and equity-based incentives and Non-Qualified
Plan benefits by crediting Executive, as of the termination date, with
additional service credit for purposes of vesting under each equity and
equity-based incentive held by Executive immediately prior to his
termination and under each Non-Qualified Plan for a period equal to the
greater of (i) the time remaining until the Expiration Date, or (ii) the
remainder of the fiscal year in which such termination occurs; and
with respect to any options then held by Executive to purchase capital
stock of the Company, extension of the post-termination exercise period of
such options to 90 days following the end of the Severance Period. The
severance benefits described in this Section 6.1 will be paid in lieu of
and not in addition to any other severance arrangement maintained by the
Company.
Change of Control Terminations.
If Executive's employment with the Company is terminated without Cause or
Executive resigns for any reason within six (6) months following a Change in
Control, Executive will be entitled to all payments, rights and benefits
provided pursuant to Section 6.1, except that (i) the Severance Period will be
extended by nine (9) months; and (ii) all periodic payments will be converted to
an undiscounted lump sum, payable immediately following upon termination.
Subject to Section 6.2(b)(i), the amount payable under Section 6.2(a) will be
made without regard to whether the deductibility of such payments (considered
together with any other entitlements or payments otherwise paid or due to
Executive) would be limited or precluded by Section 280G of the Code and without
regard to whether such payments would subject Executive to a Parachute Excise
Tax.
Notwithstanding the foregoing, if the Total Payments would, in the absence of
this Section 6.2(b)(i), result in the imposition of a Parachute Excise Tax on
Executive, then the Total Payments will be reduced to the extent necessary to
eliminate the imposition of a Parachute Excise Tax; provided, however, that if
the amount by which the Total Payments would be reduced pursuant to this Section
6.2(b)(i) exceeds 10% of the amount of the Total Payments, then the Total
Payments will not be reduced and Section 6.2(b)(ii) will apply.
Subject to Section 6.2(b)(i), if payment of the Total Payments result in the
imposition of a Parachute Excise Tax, Executive will be entitled to an
additional payment in an amount such that, after the payment of the Parachute
Excise Tax with respect to the Total Payments and the payment of all federal and
state income, employment and excise taxes on additional payment made pursuant to
this Section 6.2(b)(ii), Executive will be in the same after-tax position as if
no Parachute Excise Tax had been imposed.
The determination of the amount of the Total Payments and whether and to what
extent reductions or payments under Sections 6.2(b) are required to be made will
be made at the Company's expense by an independent auditor selected by mutual
agreement of the Company and Executive. In the event of any underpayment or
overpayment to Executive (determined after the application of Sections 6.2(b)(i)
and (ii)), the amount of such underpayment or overpayment will be, as promptly
as practicable, paid
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by the Company to Executive or refunded by Executive to the Company, as the case
may be, with interest at the applicable federal rate specified in Section
7872(f)(2) of the Code.
Other Terminations. If Executive's employment with the Company is terminated by
the Company for Cause, as a result of Executive's death, as a result of
Executive's disability, or by Executive without Good Reason, then the Company's
obligation to Executive will be limited solely to the payment of accrued and
unpaid Annual Salary and accrued but unused vacation days through the date of
such termination and the payment of any unpaid Annual Bonus payable with respect
to a fiscal year of the Company ending prior to such termination. All Annual
Salary and Benefits will cease at the time of such termination and, except as
otherwise provided in this Section 6.3, in any Indemnification Agreement or
pursuant to COBRA, the Company will have no further liability or obligation to
Executive following such termination. The foregoing will not be construed to
limit Executive's rights under any employee benefit plan, policy or arrangement
of the Company.
Miscellaneous
Successors and Assigns. This Agreement will inure to the benefit of and be
binding upon the Company and Executive and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Executive nor the Company may make any assignments of this
Agreement or any interest herein, by operation of law or otherwise, without the
prior written consent of the other party, except that, without such consent, the
Company may assign this Agreement to any successor to all or substantially all
of its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise.
Indemnification. The Company hereby agrees to indemnify Executive for acts
performed in his capacity as an officer and director of the Company to the
maximum extent permit by Delaware law, and to maintain in full force and effect
directors' and officers' liability insurance to fund that indemnity in amounts
and on terms at least equal to those in effect on the date of this Agreement.
Notice. Any notice or communication required or permitted under this Agreement
will be made in writing and (a) sent by overnight courier, (b) mailed by
certified or registered mail, return receipt requested or (c) sent by
telecopier, addressed as follows:
If to Executive: Xx. Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx Xxxxxxxxx
Xxx. Xx. 0000
Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
If to Company: OAO Technology Solutions, Inc.
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Chairman of the Board
Fax: 000-000-0000
Copy to General Counsel:
Fax: 000-000-0000
or to such other address as either party may from time to time duly specify by
notice given to the other party in the manner specified above.
Acknowledgement of Review. Each party expressly acknowledges and recites that
he/ it, as applicable, (a) has read and understands this Agreement in its
entirety, and (b) had a meaningful opportunity to consult with an attorney with
respect to this Agreement before signing.
Entire Agreement; Amendments. This Agreement contains the entire agreement and
understanding of the parties hereto relating to the subject matter hereof, and
merges and supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature relating to the employment of Executive by the
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Company, including (without limitation) the Employment Agreement between
Executive and the Company dated June 25, 1998. This Agreement may not be changed
or modified, except by an Agreement in writing signed by each of the parties
hereto.
Waiver. Any waiver by either party of any breach of any term or condition in
this Agreement will not operate as a waiver of any other breach of such term or
condition or of any other term or condition, nor will any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof or constitute or be deemed a waiver or release of any other rights, in
law or in equity.
Governing Law. This Agreement will be governed by, and enforced in accordance
with, the laws of the State of Delaware, without regard to the application of
the principles of conflicts of laws.
Dispute Resolution.
Good-Faith Negotiations. If any dispute arises under this Agreement that is not
settled promptly in the ordinary course of business, the parties will seek to
resolve any such dispute between them, first, by negotiating promptly with each
other in good faith in face-to-face negotiations. If the parties are unable to
resolve the dispute between them within 20 business days (or such period as the
parties otherwise agree) through these face-to-face negotiations, then the
controversy or claim will be settled by arbitration conducted on a confidential
basis, under the U.S. Arbitration Act, if applicable, and the then current
Commercial Arbitration Rules of the American Arbitration Association (the
"Association") strictly in accordance with the terms of this Agreement and the
substantive law of the State of Delaware. The arbitration will be conducted at
the Association's regional office located closest to Company's principal place
of business by one arbitrator experienced in employment matters selected by
mutual agreement of Executive and the Company. Judgment upon the arbitrator's
award may be entered and enforced in any court of competent jurisdiction.
Neither party will institute a proceeding hereunder unless at least 10 days
prior thereto, such party provided written notice to the other party of its
intent to do so.
Notwithstanding the foregoing, the Company will not be precluded hereby from
securing equitable remedies in courts of any jurisdiction including, but not
limited to, temporary restraining orders and preliminary injunctions to protect
its rights and interests but will not be sought as a means to avoid or stay
arbitration.
Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
Section Headings. The section headings in this Agreement are for convenience
only; they form no part of this Agreement and will not affect its
interpretation.
Counterparts and Facsimiles. This Agreement may be executed, including execution
by facsimile signature, in one or more counterparts, each of which will be
deemed an original, and all of which together will be deemed to be one and the
same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and Executive has executed this Agreement, in each
case as of the date first above written.
OAO TECHNOLOGY SOLUTIONS, INC.
By: ____________________________________
Name & Title:___________________________
EXECUTIVE
________________________________________
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EXHIBIT A - BENEFITS
$800 per month car allowance
Reasonable annual dues in one country club and a one-time allowance for
initiation fees up to $25,000
Reasonable annual dues in one business eating club and a one-time allowance for
initiation fees up to $5,000
Payment of reasonable costs of annual tax and financial planning
Payment of reasonable attorney fees associated with negotiation of the Agreement
Provision of unused executive relocation benefits in accordance with the
Company's policies and practices in effect at the time of Executive's
commencement of employment with the Company, but without regard to any time
limit for the provision of such benefits.
At such time as all statutory restrictions and limitations are removed but no
sooner than Tuesday, April 23, 2002, Executive is hereby granted the right, to
purchase up to 750,000 shares of OAO Technology Solutions, Inc., common stock at
the price of $1.65, subject to a promissory note between Xx. Xxxxx and OAOT, the
terms, security and duration of which shall be substantially similar to those of
the final version of the previous instrument, as it was finally amended,
including all exhibits thereto.
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