EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of January 1,
1998, by and between Government Technology Services, Inc., a Delaware
corporation ("Employer"), and X. Xxxxx Xxxxx ("Employee");
WHEREAS, Employer desires to employ Employee as Employer's president and
chief executive officer and to have Employee as member of Employer's board of
directors (the "Board");
WHEREAS, Employer desires to ensure that, if a Change of Control (as
defined below) appears possible, Employee will be in a secure position from
which he can objectively engage in any potential deliberations or
negotiations respecting such Change of Control without fear of any direct or
implied threat to his employment, status and responsibilities; and
WHEREAS, Employee desires to be employed by Employer and to have the
foregoing assurances;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the adequacy of which
is hereby acknowledged, Employer and Employee, each intending to be legally
bound, agree as follows:
1. Term. The term of Employee's employment hereunder shall commence
on January 1, 1998 and shall continue until December 31, 2000, except as
otherwise provided in Section 6 (the "Term").
2. Duties
(a) Offices. During the Term, Employer shall serve as a member of
Employer's Board, and as Employer's president and chief executive officer,
and the Board shall re-nominate Employee as a director of Employer and
reappoint Employee as Employer's president and chief executive officer, and
Employee shall perform the duties of those positions, as assigned to him by
the Board. Employer agrees, however, that Employee will be assigned only
duties of the type, nature and dignity normally assigned to the president and
chief executive officer of a corporation of the size, stature and nature of
Employer. During the Term, Employee shall report directly to the Board.
(b) Full-Time Basis. During the Term, Employee shall devote, on
a full-time basis, his services, skills and abilities to his employment
hereunder, excepting periods of vacation, illness or Disability (as defined
below).
3. Compensation
(a) Salary. During the Term, as compensation for services
rendered by Employee hereunder, Employer shall pay to Employee not less than
$300,000 per year, reviewed annually by the Board of Directors, payable
biweekly in accordance with Employer's standard payroll schedule, plus a
$150,000 annual bonus, payable quarterly, within 30 days after the end of
each fiscal quarter. Eligibility for the bonus payment shall be determined
as follows: 50% upon attainment of earnings before interest and taxes
("EBIT") (adjusted for Board-approved one-time charges (e.g. acquisition
costs)) to be determined annually by the Board (provided, however, that for
1998 the EBIT target shall be 1%); and 50% upon attainment of a return on
assets to be determined annually by the Board. Return on assets shall be
defined as annualized net income divided by average assets calculated on a
12-month rolling average. Bonus payments shall be paid in ratio to the
percentage of the goal achieved contingent upon achievement of at least 80%
of the target. Examples of the quarterly bonus payments are included as
Attachment A to this Agreement.
(b) Tax Withholdings. Employer shall withhold from Employee's
compensation hereunder and pay to the appropriate governmental agencies
payroll taxes, including income, social security, and unemployment
compensation taxes, required by the federal, state and local governments with
jurisdiction over Employer.
4. Benefits. During the Term, Employee shall be entitled to such
comparable fringe benefits and perquisites as may be provided to any or all
of Employer's senior officers pursuant to policies established from time to
time by the Board. These fringe benefits and perquisites shall include
Employee's participation in compensatory, benefit and incentive plans and
arrangements, including stock option and stock purchase plans, deferred
compensation and profit participation plans, as well as holidays, group
health insurance, short term and long term disability insurance and life
insurance, and supplemental executive health care benefits. Also, during the
Term, Employee shall be entitled to 20 business days paid leave per annum and
to accrue unused leave from year to year and to be reimbursed for the costs
of physical examinations up to $500 per annum.
5. Expenses and Other Perquisites. Employer shall reimburse Employee
for all reasonable and proper business expenses incurred by him in the
performance during the Term of his duties hereunder, in accordance with
Employer's customary practices for senior officers, and provided such
business expenses are reasonably documented. Further, Employer shall
reimburse Employee for the monthly dues to the Tower Club. In addition,
during the Term, Employer shall continue to provide Employee with an office
and suitable office fixtures, telephone services, and secretarial assistance
of a nature appropriate to Employee's position and status.
6. Termination
(a) By Employer
(i) Termination for Cause. Employer may, for Cause (as
defined below), terminate the Term at any time upon 10 business days' prior
notice to Employee. In any event, as of the termination date, Employee shall
be relieved of all of his duties hereunder and Employee shall not be entitled
to the accrual or provision of any compensation or benefit, after the
termination date but Employee shall be entitled to the provision of all
compensation and other benefits that shall have accrued as of the termination
date, including all vested Options, paid leave benefits, and reimbursement of
incurred business expenses.
(ii) Termination Without Cause. Employer may, in its sole
discretion, without Cause, terminate the Term at any time by providing
Employee with 60 days' prior notice thereof and by paying, on or before the
Termination Date, a lump sum equal to 12 months salary plus accrued bonus to
date. Employee shall be entitled to the provision of all compensation and
other benefits that shall have accrued as of the termination date, including
all vested Options, paid leave benefits, and reimbursement of incurred
business expenses.
(iii) Definition of Cause. Termination by Employer of
Employee's employment for "Cause" means termination as a result of: (1)
deliberate and premeditated acts against the Employer's best interests; or
(2) acts or omissions involving unacceptable performance or conduct (examples
of which include, but are not limited to: failure or refusal to perform
assigned duties or to follow Employer's policies, as determined in the sole
discretion of Employer; commission of sexual harassment or other employment
practice liabilities; excessive absenteeism; unlawful use or possession of
drugs or misuse of legal drugs or alcohol; misappropriation of an Employer
asset or opportunity; the offer, payment, solicitation or acceptance of any
bribe or kickback with respect to Employer's business; the assertion,
representation or certification of any false claim or statement to a customer
of Employer; or indictment or conviction for any felony whatsoever or for any
misdemeanor involving moral turpitude); or (3) inability for any reason to
perform the essential functions of the position; or (4) other conduct deemed
by Employer to be inappropriate for an officer or harmful to Employer's
interests or reputation. In the event of (4), above, Employee shall be given
10 days after receipt of written notice to cure such inappropriate or harmful
activity.
(b) Death or Disability. The Term shall be terminated immediately
and automatically upon Employee's death or "Disability." The term
"Disability" shall mean Employee's inability to perform all of the essential
functions of his position hereunder for a period of 26 consecutive weeks or
for an aggregate of 150 work days during any 12-month period by reason of
illness, accident or any other physical or mental incapacity, as may be
permitted by applicable law. Employee's capability to continue performance
of Employee's duties hereunder shall be determined by a panel composed of two
independent medical doctors appointed by the Board and one appointed by
Employee or his designated representative.
(c) By Employee
(i) Employee may, in his sole discretion, without cause,
terminate the Term at any time by providing Employer with 60 days' written
notice. If Employee exercises such termination right, Employer may, at its
option, at any time after receiving such notice from Employee, relieve him of
his duties and terminate the Term at any time prior to the expiration of said
notice period. If the Term is terminated by Employee pursuant to this
Section 6(c)(i), Employee shall be entitled to the provision of all
compensation and other benefits that shall have accrued as of the termination
date, including all vested Options, paid leave benefits, and reimbursement of
incurred business expenses, but shall not be entitled to any further accrual
or provision of any other compensation or benefits after the termination
date.
(ii) If, during the Term, a Change of Control (as defined
below) occurs and, without his consent, Employee is assigned duties
materially inconsistent with his position and status with Employer hereunder,
Employee may, in his sole discretion, terminate the Term upon 5 days' notice
to Employer. If Employee exercises such termination right, Employer may, at
its Option, at any time after receiving such notice from Employee, relieve
him of his duties hereunder and terminate the Term at any time prior to the
expiration of said notice period. If this Agreement is terminated by
Employee or Employer pursuant to this Section 6(c)(ii), Employee shall
receive, on or before the Termination Date, a lump sum equal to one year's
salary plus Employee shall be entitled to the provision of all compensation
and other benefits that shall have accrued as of the termination date,
including all vested Options, paid leave benefits, and reimbursement of
incurred business expenses.
(d) Change of Control. For purposes of this Section 6, a "Change
of Control" shall be deemed to have occurred upon the happening of any of the
following events: (i) any "person," including a "group," as such terms are
defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended, and the rules promulgated thereunder (collectively the "Exchange
Act"), other than a trustee or other fiduciary holding voting securities of
Employer ("Voting Securities") under any employment benefit plan, becomes the
beneficial owner, as defined under the Exchange Act, directly or indirectly,
whether by purchase or acquisition or agreement to act in concert or
otherwise, of 35% or more of the outstanding Voting Securities; (ii) the
stockholders of Employer approve a merger or consolidation of Employer with
any other corporation, other than a merger or consolidation which would
result in the Voting Securities of Employer outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
the surviving entity) more than 50% of the combined voting power of the
Voting Securities of Employer or such surviving entity outstanding
immediately after such merger or consolidation; (iii) Employer's stockholders
approve an agreement to merge, consolidate, liquidate, or sell all or
substantially all of Employer's assets.
7. Non-Waiver. It is understood and agreed that one party's failure
at any time to require the performance by the other party of any of the
terms, provisions, covenants or conditions hereof shall in no way affect the
first party's right thereafter to enforce the same, nor shall the waiver by
either party of the breach of any term, provision, covenant or condition
hereof be taken or held to be a waiver of any succeeding breach.
8. Severability. If any provision of this Agreement conflicts with
the law under which this Agreement is to be construed, or if any such
provision is held invalid or unenforceable by a court of competent
jurisdiction or any arbitrator, such provision shall be deleted from this
Agreement and the Agreement shall be construed to give full effect to the
remaining provisions thereof.
9. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the Commonwealth of Virginia, without
regard to the conflict of law provisions thereof.
10. Construction. Both Employee and Employer have received independent
legal advice with respect to the advisability of entering into this Agreement
and neither has been entitled to rely upon nor has in fact relied upon the
advice of the other party or such other party's counsel in entering into this
Agreement. The paragraph headings and captions contained in this Agreement
are for convenience only and shall not be construed to define, limit or
affect the scope or meaning of the provisions hereof. All references herein
to Sections shall be deemed to refer to Sections of this Agreement.
11. Entire Agreement. This Agreement contains and represents the
entire agreement of Employer and Employee and supersedes all prior
agreements, representations or understandings, oral or written, express or
implied with respect to the subject matter hereof. Notwithstanding this
provision, however, nothing in this Agreement shall affect Employee's stock
option rights provided in the December 18, 1995 agreement between Employer
and Employee, nor shall it affect the stock option rights nor the payments
due under the Non-Competition and Consulting Agreement dated August 16, 1994.
This Agreement may not be modified or amended in any way unless in writing
signed by each of Employer and Employee.
12. Assignability. Neither this Agreement nor any rights or
obligations of Employer or Employee hereunder may be assigned by Employer or
Employee without the other party's prior written consent. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
Employer and Employee and their heirs, successors and assigns.
13. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered personally or sent by
certified or registered mall, postage prepaid, return receipt requested, or
sent by telegram, telex, fax or similar form of telecommunication, and shall
be deemed to have been given when received. Any such notice or communication
shall be addressed: (a) if to Employer, to General Counsel, 0000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000; or (b) if to Employee, to his
last known home address on file with Employer; or to such other address as
Employer or Employee shall have furnished to the other in writing.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the date first above-written.
Government Technology Services, Inc.
X. Xxxxx Xxxxx
By: /s/ Xxxxx X. Xxxx Signature: /s/ X. Xxxxx Xxxxx
Print Name: Xxxxx X. Xxxx
Print Title: Director
Attachment A
Examples of Calculation of Quarterly Bonus
