EXHIBIT 10(iii) 22
------------------
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 20, 1996, is made by and
between International Technology Corporation, a Delaware corporation
(together with any successor thereto and with its wholly-owned subsidiary,
IT Corporation, a California corporation, the "Company"), and Xxxxxxx X.
XxXxxx (the "Executive").
RECITALS:
A. It is the desire of the Company to assure itself of the
services of the Executive by engaging the Executive to perform such
services under the terms hereof.
B. The Executive desires to commit himself to serve the Company
on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements set forth below the parties hereto
agree as follows:
1. Certain Definitions.
(a) "Base Management Forecasts" shall mean the forecasts
of both EBITDA and Net Income as described in Schedule I, for each of
the four fiscal years in the period ended March 31, 2000, as
initially identified in Schedule I attached hereto, subject to
automatic adjustment from time to time to take account of the effect
of changes in accounting principles, income tax rates or other
similar factors beyond the control of management or the Board that
shall have positive or negative impact on the Company's reported Net
Income for the year in question relative to the manner in which Net
Income was computed for the year ended March 31, 1996. "Base
Management Forecasts" for fiscal years beginning on and after
April 1, 2000, shall be such forecasts as determined by the
Compensation Committee. In addition, the Company and the Executive
shall negotiate in good faith to make reasonable adjustments to the
Base Management Forecasts to give effect to changes in business
strategy, changes in research and development budgets, acquisitions
(to the extent not taken into account in specifying the Base
Management Forecasts attached hereto), and the like that have been
approved by the Board and which have the effect of increasing or
reducing the short-term Net Income but which are intended to enhance
long-term shareholder value.
(b) "Base Salary" shall have the meaning set forth in
Section 4(a).
(c) "Board" shall mean the Board of Directors of the
Company.
1
(d) "Cause" the Executive shall have "Cause" to resign his
employment hereunder upon
(i) the Company's assignment to the Executive of
duties materially inconsistent with his position as President,
or
(ii) the Company's failure to make any payment or
provide any benefit hereunder or the Company's material breach
of this Agreement, which failure or breach is not cured within
30 days after written notice from the Executive thereof.
(e) "Change of Control" shall mean the consummation of the
first to occur of (i) the sale, lease or other transfer of all or
substantially all of the assets of the Company to any person or group
(as such term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended); (ii) the adoption by the stockholders of
the Company of a plan relating to the liquidation or dissolution of
the Company; (iii) the merger or consolidation of the Company with or
into another entity or the merger of another entity into the Company
or any subsidiary thereof with the effect that immediately after such
transaction the stockholders of the Company immediately prior to such
transaction (or their Related Parties) hold less than 50% of the
total voting power of all securities generally entitled to vote in
the election of directors, managers or trustees of the entity
surviving such merger of consolidation; or (iv) the acquisition by
any person or group of more than 50% of the voting power of all
securities of the Company generally entitled to vote in the election
of directors of the Company.
(f) "Common Stock" shall mean the $0.01 par value common
stock of the Company.
(g) "Company" shall have the meaning set forth in the
preamble hereto.
(h) "Compensation Committee" shall mean the compensation
committee of the Board.
(i) "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his
death, (ii) if the Executive's employment is terminated pursuant to
Section 5(a)(ii) - (vii) the date specified in the Notice of
Termination.
(j) "Disability" shall mean the absence of the Executive
from the Executive's duties to the Company on a full-time basis for
a period of 90 consecutive days or a total of six months during any
24 month period as a result of incapacity due to mental or physical
illness.
(k) "Executive" shall have the meaning set forth in the
preamble hereto.
2
(l) "Loan Documents" shall mean the Promissory Note
pursuant to which the Executive shall borrow from the Company the
Purchase Price for the shares of Common Stock purchased by the
Executive pursuant to Section 4(f). The Company agrees to consider
in good faith providing forgiveness of a certain portion of the loan
principal and interest if previously agreed to targets are met or
exceeded.
(m) "Long-Term Incentive Plan" or "LTIP" shall mean any
long-term incentive plan, including options to purchase Common Stock,
instituted to promote the Company's long-term goals.
(n) "Notice of Termination" shall have the meaning set
forth in Section 5(b).
(o) "Options" shall have the meaning set forth in Section
4(b).
(p) "Prorated Short-Term Bonus" for any given fiscal year
shall mean the product of
(i) the Short-Term Bonus amount, if any, that would
have been payable to the Executive for the fiscal year in which
occurs his Date of Termination, based upon the Company's
performance for the entire fiscal year projected in good faith
by the Compensation Committee on the basis of the Company's
performance for such fiscal year through the Date of
Termination,
and
(ii) the ratio of (A) the number of days elapsed in
such fiscal year through the Date of Termination, to (B) 365.
(q) "Severance Period" shall mean,
(i) with respect to
(A) Termination without Reason (pursuant to
Section 5(a)(v)) at any time;
(B) Termination for Reason of Company
Performance(pursuant to Section 5(a)(iv)) within 24 months
after a Change of Control; or
(C) the Executive's resignation for Cause
(pursuant to Section 5(a)(vi)) at any time,
the period beginning on the Date of Termination and ending 24
months thereafter;
3
and,
(ii) with respect to Termination for Reason of Company
Performance not within 24 months after a Change of Control, the
period beginning on the Date of Termination and ending 12
months thereafter.
(r) "Short-Term Bonus" shall mean the bonus, if any,
payable to the Executive pursuant to the Company's short-term
incentive compensation plan. The target amount of the Short-Term
Bonus shall be 50% of the Executive's Base Salary and the maximum
amount shall be 75% of the Executive's Base Salary.
(s) "Term" shall have the meaning set forth in Section
2(b).
(t) "Termination for Reason of Cause" shall mean the
termination of the Executive's employment hereunder at the initiative
of the Company upon the Executive's
(i) habitual neglect of, or failure substantially to
perform, his duties hereunder, other than any such failure
resulting from the Executive's Disability, after written notice
and reasonable opportunity for cure, all as determined by the
Board;
(ii) final conviction of a felony or of any crime
involving moral turpitude, fraud or misrepresentation;
(iii) fraud or personal dishonesty involving the
Company's assets;
(iv) willful failure to follow any lawful directive of
the Company consistent with the Executive's position and duties,
after written notice and reasonable opportunity for cure, all as
determined by the Board;
(v) use of alcohol or illegal drugs interfering with
the performance of the Executive's responsibilities relating to
his or her employment with the Company; or
(vi) commission of any willful or intentional act
which could reasonably be expected to injure materially the
reputation, business or business relationships of the Company or
its clients.
(u) "Termination for Reason of Company Performance" shall
mean termination of the Executive's employment hereunder at the
initiative of the Company, at the discretion of the Board of
Directors upon the Company's satisfaction of less than all Base
Management Forecasts during two or more consecutive fiscal years.
4
(v) "Termination without Reason" shall mean any
termination (other than upon the Executive's Disability) of the
Executive's employment hereunder at the initiative of the Company
other than a Termination for Reason of Company Performance or a
Termination for Reason of Cause.
2. Employment.
(a) The Company shall employ the Executive and the
Executive shall enter the employ of the Company, for the period set
forth in this Section 2, in the positions set forth in Section 3 and
upon the other terms and conditions herein provided. The initial
term of employment under this Agreement (the "Initial Term") shall be
for the period beginning on the effective date of this Agreement and
ending on November 19, 1999, unless earlier terminated as provided in
Section 5.
(b) After the Initial Term, the employment term hereunder
shall automatically be extended day by day (collectively with the
Initial Term, the "Term") unless either party gives written notice of
non-extension to the other, in which case the employment term shall
expire no earlier than the date that is six months after the date
such notice is received.
3. Position and Duties.
(a) During the Term, the Executive shall serve as President of
the Company with such customary responsibilities, duties and
authority as may from time to time be assigned to the Executive by
the Board. If appointed thereto, the Executive agrees to serve as
Chief Executive Officer of the Company and from the date hereof until
otherwise notified by the Board, the Executive shall serve as Acting
Chief Executive Officer of the Company with such customary
responsibilities, duties and authority as may be assigned to a chief
executive officer. The Executive shall assume such additional or
different duties and/or title as may from time-to-time be assigned to
the Executive by the Board, provided, however, that such duties
and/or title shall not be lower in responsibility and level within
the Company than that of President. The Executive shall devote
substantially all his working time and efforts to the business and
affairs of the Company and shall not receive compensation in excess
of one percent (1%) of his Base Salary for services rendered to any
other persons.
(b) The Executive will be nominated as a Director of the
Company no later than the first meeting of the Board coincident with
or following the Effective Date. The Executive shall resign from the
Board as of the Date of Termination, regardless of the reason for
such termination.
4. Compensation and Related Matters.
(a) Base Salary. During the Term the Executive shall
receive a base salary at a rate of $320,000.00 per annum,
subject to increase as determined by the Compensation
5
Committee and subject to reduction only in connection with an
across the board reduction applicable to senior management of
the Company generally.
(b) LTIPS. From time to time during the Term the
Executive may be eligible to participate in one or more LTIPs,
including the grant of Options pursuant to the Company's 1996
Stock Incentive Plan (if approved by the Company's stockholders)
and/or pursuant to similar plans adopted in the future, with
option exercise price, vesting criteria and expiration terms
under any such stock plan generally consistent with the
Company's practice under its 1991 Stock Incentive Plan (unless
different terms are mandated under the 1996 Stock Incentive
Plan); provided, however, if insufficient numbers of Options are
available to provide adequate incentive to other levels of
management, alternative arrangements may be made. Awards (if
made) under such LTIPs shall be at the discretion of the
Compensation Committee and based on appropriate Executive and
Company performance criteria and will generally approximate
(assuming performance criteria are achieved) 75% to 100% of the
Executive's Base Salary.
(c) Short-Term Bonuses. For each fiscal year of the
Company ending within the Term, the Executive shall be eligible
to receive a Short-Term Bonus.
(d) Benefits. The Executive shall be entitled to
participate in the other employee benefit plans, programs and
arrangements of the Company (including vacation) now (or, to the
extent determined by the Board, hereafter) in effect which are
applicable to the senior officers of the Company, subject to and
on a basis consistent with the terms, conditions and overall
administration thereof.
(e) Expenses. The Company shall reimburse the Executive
for all reasonable travel and other business expenses incurred
by him in the performance of his duties to the Company, in
accordance with the Company's documentation and other policies
with respect thereto.
(f) Stock Purchase. The Executive hereby agrees that on
or before February 20, 1997, he will purchase, in the open
market or through a Company arranged open market share
repurchase program, Common Stock at an aggregate purchase price
of not less than $100,000. The Company hereby agrees to lend to
the Executive the aggregate purchase price of such stock (but
not more than $125,000) in accordance with the Loan Documents.
The Company agrees to consider providing forgiveness of a
certain portion of the loan principal and interest if previously
agreed upon performance targets (Executive and/or Company) are
met or exceeded.
5. Termination. The Executive's employment hereunder may be
terminated by the Company or the Executive, as applicable, without
any breach of this Agreement only under the following circumstances:
(a) (i) Death. The Executive's employment hereunder
6
shall terminate upon his death.
(ii) Disability. The Executive's employment hereunder
shall terminate in the event of his Disability.
(iii) Termination for Reason of Cause.
(iv) Termination for Reason of Company Performance.
(v) Termination Without Reason.
(vi) Resignation for Cause. The Executive may resign
his employment hereunder for Cause at any time.
(vii) Resignation without Cause. The Executive may
resign his employment without Cause upon 6 months advance
written notice to the Company; provided that the Company may
waive the notice period.
(b) Notice of Termination. Any termination of the
Executive's employment by the Company or by the Executive under this
Section 5 (other than termination pursuant to paragraph (a)(i)) shall
be communicated by a written notice to the other party hereto
indicating the specific termination provision in this Agreement
relied upon, setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and
specifying a Date of Termination (a "Notice of Termination").
6. Severance Payments and Benefits.
(a) Upon termination of the Executive's employment with
the Company for any reason, the Company shall provide the Executive
(or, in the event of his death, his estate or other legal
representative) benefits due him under the Company's benefits plans
and policies for services rendered to the Company prior to such
termination (pursuant to the terms of such plans and policies) and,
in accordance with applicable law and in any event not later than 90
days after the Date of Termination, the Company shall pay the
Executive all unpaid Base Salary earned through such date. The
Executive shall be entitled to the payments described below only as
each is applicable to such termination of employment.
(b) The following payments and benefits described in this
subsection (b) shall be in addition to the payments and benefits
described in subsection (a) above.
(i) Termination upon Death or Disability. If the
Executive's employment shall terminate by reason of his death or
Disability, the Company shall pay to the Executive (or his
estate or representative), in a lump sum within 90 days
7
increase as determined by the Compensation after the Date of
Termination, the Prorated Short-Term Bonus for the fiscal year
in which such termination occurs.
(ii) Termination without Reason or Resignation for
Cause. Except as provided by subsection (b)(iv), in the event of
the Executive's Termination without Reason (pursuant to Section
5(a)(v)) or his resignation for Cause (pursuant to Section
5(a)(vi)),
(A) the Company shall pay to the Executive, in
accordance with its regular payroll practice, his Base
Salary for the Severance Period;
(B) the Company shall continue for the Severance
Period Executive's coverage under all Company welfare
benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of
Termination, to the extent permitted thereunder. In
the event that the Executive's participation in any such
plan or program is not permitted, the Company shall
arrange to provide the Executive with benefits
substantially similar to those which the Executive would
otherwise have been entitled to receive under such plans
and programs;
(C) the Company shall pay to the Executive, in
a lump sum within 90 days after his Date of Termination,
the Prorated Short-Term Bonus for the fiscal year in which
such Date of Termination occurs; and
(D) the Executive's Options, if any, shall
continue to vest during the Severance Period and shall
remain exercisable until the earlier of (1) the date such
Option would otherwise expire without regard to this
Agreement or (2) the expiration of the Severance Period.
(iii) Termination for Reason of Company
Performance. Except as provided by subsection (b)(iv), in the
event of the Executive's Termination for Reason of Company
Performance (pursuant to Section 5(a)(iv)),
(A) the Company shall pay to the Executive, in
accordance with its regular payroll practice, his Base
Salary for the Severance Period; and
(B) the Company shall continue for the Severance
Period Executive's coverage under all Company welfare
benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of
Termination, to the extent permitted thereunder. In
the event that the Executive's participation in any such
plan or program is not permitted, the Company shall
arrange to provide the Executive with benefits
8
substantially similar to those which the Executive would
otherwise have been entitled to receive under such plans
and programs.
(iv) Termination following a Change in Control. If,
within the 24 month period following a Change of Control, the
Executive's employment is terminated pursuant to a Termination
without Reason (pursuant to Section 5(a)(v)), Termination for
Reason of Company Performance (pursuant to Section 5(a)(iv)), or
his resignation for Cause (pursuant to Section 5(a)(vi)),
(A) the Company shall pay to the Executive, in
accordance with its regular payroll practice, his Base
Salary for the Severance Period;
(B) the Company shall continue for the Severance
Period Executive's coverage under all Company welfare
benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of
Termination, to the extent permitted thereunder. In
the event that the Executive's participation in any such
plan or program is not permitted, the Company shall arrange
to provide the Executive with benefits substantially
similar to those which the Executive would otherwise
have been entitled to receive under such plans and
programs;
(C) the Company shall pay to the Executive, in
a lump sum within 90 days after his Date of Termination, an
amount equal to the greater of (x) the Executive's targeted
Short-Term Bonus for the fiscal year in which occurs the
Date of Termination or (y) the greatest Short-Term
Bonus paid to the Executive in respect of the two fiscal
years ending prior to the fiscal year in which occurs the
Date of Termination; and
(D) the Executive's Options, if any, shall
become 100% vested as of the Date of Termination and shall
remain exercisable until the earlier of (1) the date such
Option would otherwise expire without regard to this
Agreement or (2) the expiration of the Severance Period.
(c) Survival. The expiration or termination of the Term
shall not impair the rights or obligations of any party hereto which
shall have accrued hereunder prior to such expiration.
(d) Mitigation Not Required. The Executive shall not be
required to seek other employment to mitigate damages, and the
Executive's payments and benefits hereunder during the Severance
Period shall not be subject to offset by the amount of income earned
by the Executive from other employment or self-employment during the
Severance Period.
9
(e) Reduction in Payments. Notwithstanding anything
contained in this Agreement to the contrary, in the event that the
payments to the Executive under Section 6 of this Agreement, either
alone or together with other payments the Executive has a right to
receive from the Company, would not be deductible (in whole or in
part) by the Company as a result of such payments constituting a
"parachute payment" (as defined in Section 280G of the Internal
Revenue Code, as amended (the "Code")), such payments shall be
reduced to the largest amount as will result in no portion of the
payments under Section 6 not being fully deductible by the Company as
the result of Section 280G of the Code. The determination of any
reduction in the payments under Section 6 pursuant to the foregoing
sentence shall be made exclusively by Ernst & Young, or such other
firm of independent public accountants as may be serving as the
Company's principal auditors immediately prior to the Date of
Termination (whose fees and expenses shall be borne by the Company),
and such determination shall be conclusive and binding on the Company
and the Executive.
7. Non-Interference; Non-Competition.
(a) The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be
held by the Executive hereunder, that during the Term and during any
Severance Period, and in the event of the Executive's
resignation without Cause, during the 12 month period beginning on
the Date of Termination, the Executive will not directly or
indirectly, by or for himself, or as the agent of another, or through
others as an agent,
(i) in any way solicit or induce or attempt to
solicit or induce any employee, officer, representative,
consultant, or other agent of the Company (whether such person
is presently employed by the Company or may hereinafter be
so employed), to leave the Company's employ or otherwise
interfere with the employment relationship between any such
person and the Company; or
(ii) take any action to purchase or obtain goods or
services, from any of the Company's proprietary suppliers or
other supplier with whom the Company has developed a unique or
exclusive relationship; or
(iii) in any way solicit, or attempt to divert,
take away or call on, any customers or potential customers of
the Company.
(b) The Executive hereby agrees, in consideration of his
employment hereunder and in view of the confidential position to be
held by the Executive hereunder, that during the Term and, in the
event of his resignation without Cause, during the 12 month period
beginning on the Date of Termination, the Executive will not, without
the prior written consent of the Board, directly or indirectly engage
in, or have any interest in, or manage or operate any person, firm,
corporation, partnership or business (whether as director, officer,
employee, agent, representative, partner, security holder, consultant
10
or otherwise) that engages in any business which competes with any
business of the Company or any subsidiary anywhere in the world;
provided, however, that Executive shall be permitted to acquire a
stock interest in such a corporation provided such stock is
publicly traded and the stock so acquired is not more than one
percent of the outstanding shares of such corporation.
(c) In the event the agreement in this Section 7 shall be
determined by any court of competent jurisdiction to be unenforceable
by reason of its extending for too great a period of time or over too
great a geographical area or by reason of its being too extensive in
any other respect, it will be interpreted to extend only over the
maximum period of time for which it may be enforceable, and/or over
the maximum geographical area as to which it may be enforceable
and/or to the maximum extent in all other respects as to which it may
be enforceable, all as determined by such court in such action.
8. Nondisclosure of Proprietary Information.
(a) Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to subsection (c), Executive
shall, in perpetuity, maintain in confidence and shall not directly,
indirectly or otherwise, use, disseminate, disclose or publish, or
use for his benefit or the benefit of any person, firm, corporation
or other entity any confidential or proprietary information or trade
secrets of or relating to the Company, including, without limitation,
information with respect to the Company's operations, processes,
products, inventions, business practices, finances, principals,
vendors, suppliers, customers, potential customers, marketing
methods, costs, prices, contractual relationships, regulatory status,
compensation paid to employees or other terms of employment, or
deliver to any person, firm, corporation or other entity any
document, record, notebook, computer program or similar repository
of or containing any such confidential or proprietary information or
trade secrets; provided, however, that no information otherwise in
the public domain (other than by an act of Executive in violation
hereof) shall be considered confidential. The parties hereby
stipulate and agree that as between them the foregoing matters are
important, material and confidential proprietary information and
trade secrets and affect the successful conduct of the businesses of
the Company (and any successor or assignee of the Company).
(b) Upon termination of Executive's employment with
Company for any reason, the Executive will promptly deliver to the
Company all correspondence, drawings, manuals, letters, notes,
notebooks, reports, programs, plans, proposals, financial documents,
or any other documents concerning the Company's customers, business
plans, marketing strategies, products or processes which are Company
property, or which are non-public or which contain proprietary
information or trade secrets.
(c) Executive may respond to a lawful and valid subpoena
or other legal process but shall give the Company the earliest
possible notice thereof, shall, as much in advance of the return date
as possible, make available to the Company and its counsel the
11
documents and other information sought and shall assist such counsel
in resisting or otherwise responding to such process.
9. Injunctive Relief. It is recognized and acknowledged by
Executive that a breach of the covenants contained in Sections 7 and 8
will cause irreparable damage to Company and its goodwill, the exact
amount of which will be difficult or impossible to ascertain, and that
the remedies at law for any such breach will be inadequate. Accordingly,
Executive agrees that in the event of a breach of any of the covenants
contained in Sections 7 and 8, in addition to any other remedy which may
be available at law or in equity, the Company will be entitled to specific
performance and injunctive relief.
10. Indemnification and Insurance; Legal Expenses.
Notwithstanding any other indemnification agreement between the Company
and the Executive that may be in effect from time to time, the Company
shall indemnify the Executive to the fullest extent permitted by
the laws of the State of Delaware, as in effect at the time of the subject
act or omission, and shall advance to the Executive reasonable attorney's
fees and expenses as such fees and expenses are incurred (subject to an
undertaking from the Executive to repay such advances if it shall be
finally determined by a judicial decision which is not subject to further
appeal that the Executive was not entitled to the reimbursement of such
fees and expenses) and he will be entitled to the protection of any
insurance policies the Company may elect to maintain generally for the
benefit of its directors and officers against all costs, charges and
expenses incurred or sustained by him in connection with any action, suit
or proceeding to which he may be made a party by reason of his being or
having been a director, officer or employee of the Company or any of its
subsidiaries or his serving or having served any other enterprise as a
director, officer or employee at the request of the Company (other than
any dispute, claim or controversy arising under or relating to this
Agreement). The Company covenants to maintain for the benefit of the
Executive (in his capacity as an officer and director of the Company)
directors and officers insurance with respect to acts or omissions during
the Term; provided that the Board may elect to terminate directors and
officers insurance for all officers and directors, including the
Executive, if a majority of the Board determines in good faith that such
insurance is not available or is available only at unreasonable expense.
11. Binding on Successors. This Agreement shall be binding
upon and inure to the benefit of the Company, the Executive and their
respective successors, assigns, personnel and legal representatives,
executors, administrators, heirs, distributees, devisees, and legatees, as
applicable.
12. Governing Law. This Agreement shall be governed,
construed, interpreted and enforced in accordance with the substantive
laws of the State of Delaware.
13. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
12
14. Notices. Any notice, request, claim, demand, document and
other communication hereunder to any party shall be effective upon receipt
(or refusal of receipt) and shall be in writing and delivered personally
or sent by telex, telecopy, or certified or registered mail, postage
prepaid, as follows:
(a) If to the Company,
International Technology Corporation
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
(b) If to the Executive, to him at the address set forth
below under his signature;
or at any other address as any party shall have specified by notice in
writing to the other parties.
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
16. Entire Agreement. The terms of this Agreement are intended
by the parties to be the final expression of their agreement with respect
to the employment of the Executive by the Company and may not be
contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Agreement shall constitute the complete
and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other
legal proceeding to vary the terms of this Agreement.
17. Amendments; Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, signed by the
Executive and the Chairman of the Board. By an instrument in writing
similarly executed, the Executive or the Company may waive compliance by
the other party or parties with any provision of this Agreement that such
other party was or is obligated to comply with or perform, provided,
however, that such waiver shall not operate as a waiver of, or estoppel
with respect to, any other or subsequent failure. No failure to exercise
and no delay in exercising any right, remedy, or power hereunder preclude
any other or further exercise of any other right, remedy, or power
provided herein or by law or in equity.
18. No Inconsistent Actions. The parties hereto shall not
voluntarily undertake or fail to undertake any action or course of action
inconsistent with the provisions or essential intent of this Agreement.
Furthermore, it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and application of
the provisions of this Agreement.
13
19. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in the city in
which the Executive is then based (or was last based during the Term if
the Executive has then terminated employment with the Company) in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction over the parties; provided however, that the Company
shall be entitled to seek a restraining order or injunction in any court
of competent jurisdiction to prevent any continuation of any violation of
the provisions of Sections 7 or 8 of the Employment Agreement and provided
further that the Executive shall be entitled to seek specific performance
of his right to be paid during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The fees and expense
of the arbitrator shall be borne by the Company.
20. Attorney's Fees. In the event of any arbitration or
litigation arising under this Agreement, the prevailing party shall be
entitled to recover his or its reasonable attorney's fees from the other
party.
[signature page follows]
14
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
INTERNATIONAL TECHNOLOGY CORPORATION
IT CORPORATION
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Corporate Counsel and
Assistant Secretary
/s/
-------------------------------------
Signature Xxxxxxx X. XxXxxx
00000 Xxxxxxxxx Xxxx.
-------------------------------------
Xxxxxxxx, XX 00000
-------------------------------------
Address
15
SCHEDULE I
Management Base Case
(adjusted for Special Charges)
Fiscal Year Ended
----------------------------------------------------
03/31/97 03/31/98 03/31/99 03/31/2000 03/31/2001
-------- -------- -------- ---------- ----------
Revs 392,416 586,000 760,000 835,000 na
EBITDA 24,529 49,483 68,858 79,594 na
Net Income 2,532 15,892 26,086 31,979 na
(B/f Pref Divs)
16
