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EXHIBIT 10-Q EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into by
and between Veritas DGC Inc., a Delaware corporation (hereinafter referred to as
"Employer"), and Xxxxxxx X. Xxxxx, an individual currently resident in Xxxxxx
County, Texas (hereinafter referred to as "Employee") effective as of
January 24, 2000.
Attendant to Employee's employment by Employer, Employer and Employee wish
for there to be a complete understanding and agreement between Employer and
Employee with respect to, among other terms, Employee's duties and
responsibilities to Employer; the compensation and benefits owed to Employee;
the fiduciary duties owed by Employee to Employer; Employee's obligation to
avoid conflicts of interest, disclose pertinent information to Employer, and
refrain from using or disclosing Employer's information; and the term of
employment.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Employer and Employee agree as follows:
Section 1. General Duties of Employer and Employee.
a. Employer agrees to employ Employee, and Employee agrees to accept employment
by Employer and to serve Employer in an executive capacity as its Chief
Executive Officer. At the commencement of this Agreement, Employee shall report
to the Chairman of the Board of Employer. The powers, duties and
responsibilities of Employee as Chief Executive Officer include those duties
that are the usual and customary powers, duties and responsibilities of such
office and such other and further duties appropriate to such position as may
from time to time be assigned to Employee by the Chairman or the Board of
Directors of Employer (hereinafter referred to as the "Board").
b. Employer agrees that Employee shall be nominated as a candidate for election
to the Board at the next annual meeting of stockholders of Employer (such annual
meeting is expected to be held in December 2000). If elected, Employee shall
have all powers and obligations associated with such position as a director,
subject to all policies and guidelines as may be established by the Board,
Employers certificate of incorporation and By-laws and applicable law.
c. While employed hereunder, Employee shall devote substantially all reasonable
and necessary time, efforts, skills and attention for the benefit of and with
his primary attention to the affairs of Employer in order that he shall
faithfully perform his duties and obligations. The preceding sentence shall not,
however, be deemed to restrict Employee from attending to matters or engaging in
activities not directly related to the business of Employer, provided that (i)
such activities or matters are reasonable in scope and time commitment and not
otherwise in violation of this Agreement, and (ii) Employee shall not become a
director of any corporation or other entity (excluding charitable or other
non-profit organizations) without prior written disclosure to, and consent of,
Employer.
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d. At the commencement of Employee's employment by Employer, Employee shall be
based at Employer's headquarters located at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxx and
upon relocation of Employer's headquarters to western Xxxxxx County, Texas,
currently scheduled for October or November, 2000, Employee shall be based at
such relocated headquarters (Employer's Xxxxx Drive headquarters and after
relocation its western Xxxxxx County headquarters are referred to herein as the
"Place of Employment).
e. Employee agrees and acknowledges that during the term of this Agreement, he
owes a fiduciary duty of loyalty, fidelity and allegiance to act at all times in
the best interests of Employer and to do no act knowingly which would injure
Employer's business, its interests or its reputation.
Section 2. Compensation and Benefits.
a. Employer shall pay to Employee during the term of this Agreement a base
salary of $27,500 per month. The Compensation Committee of the Board will review
Employee's base salary at least once each fiscal year and, during the term of
this Agreement, may increase, but may not decrease Employee's base salary. The
base salary, including any increase thereof, shall be paid to Employee in equal
installments every two weeks or on such other schedule as Employer may establish
from time to time for its management personnel.
b. Employee will be eligible to participate in the fiscal year 2000 (8/01/99
through 7/31/99) Key Contributor Incentive Compensation Plan with a target of
50% of Employee's annual base salary. Any incentive earned in fiscal year 2000
will be prorated based on Employee's actual period of employment during the
fiscal year. During each subsequent fiscal year during the term of this
Agreement, Employee shall be eligible to participate in that year's Key
Contributor Incentive Plan or other replacement incentive or bonus plan Employer
establishes for its key executives with at least a target of 50% of Employee's
annual base salary, but in no event less than other key executives of Employer.
c. Employer shall grant to Employee effective March 11, 2000, an option (the
"Stock Option") to purchase such number of shares of Employer's common stock,
$.01 par value ("Common Stock") equal to 1.0 times Employee's annual base salary
divided by the market price as of the date of grant pursuant to Employer's
Non-qualified Employee's Stock Option Plan and the Stock Option Agreements in
the form attached hereto as Exhibit A. Employee will be eligible for future
option grants under Employer's Key Contributor Incentive Compensation Plan (or
other replacement incentive or bonus plan Employer establishes for its key
executives) on a basis at least as favorable as grants made to other key
executives of Employer. In the event that Employee's employment is terminated at
any time prior to January 23, 2002 for any reason other than for Cause (as
hereinafter defined), all Stock Options held by Employee on the date of such
termination shall automatically be fully vested.
d. Employer shall award to Employee, effective as of the date of this Agreement,
25,000 shares of restricted Common Stock of Employer in accordance with the
terms of the Restricted Stock Agreement attached hereto as Exhibit B and made a
part hereof.
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e. Employee will be entitled to paid vacation of not less than four weeks each
year. Vacation may be taken by Employee at the time and for the periods as may
be mutually agreed upon between Employer and Employee.
f. Employer will pay or reimburse Employee for all membership fees (other than
initiation fees), dues, assessments and expenses relating to Employee's current
golf club membership at Willow Fork Country Club, Katy, Texas.
g. Employee shall be reimbursed in accordance with Employer's normal expense
reimbursement policy for all of the actual and reasonable costs and expenses
incurred by him in the performance of his services and duties hereunder,
including, but not limited to, travel and entertainment expenses. Employee shall
furnish Employer with all invoices and vouchers reflecting amounts for which
Employee seeks Employer's reimbursement.
h. Employee shall be entitled to participate in all insurance and retirement
plans, incentive compensation plans (at a level appropriate to his position) and
such other benefit plans or programs as may be in effect from time-to-time for
the key management employees of Employer including, without limitation, those
related to savings and thrift, retirement, welfare, medical, dental, disability,
salary continuance, accidental death, travel accident, life insurance, incentive
bonus, membership in business and professional organizations, and reimbursement
of business and entertainment expenses.
i. In addition to those benefit plans and programs referred to in Section 2.h.
above, Employer shall, in the event of Employee's Short-Term Disability, pay to
Employee an amount equal to the following: (i) for the first three months of
such Short-Term Disability, 100% of the amount Employee would have received as
base salary had he been able to work; and (ii) for the next three months of such
Short-Term Disability, 66 2/3 % of the amount Employee would have received as
base salary had he been able to work. Such payments shall be made to Employee in
equal installments every two weeks or on such other schedule as Employer may
establish from time to time for payment of salaries to its management personnel.
A "Short-Term Disability" as used in this Section 2.i. shall mean any continuous
period longer than one day and continuing for a period of up to and including
180 days during which time Employee is unable to perform, due to physical or
mental illness, injury or incapacity, the duties assigned to him under this
Agreement.
j. Employer, during the term of this Agreement and thereafter without limit of
time, shall indemnify Employee for claims and expenses to the extent provided in
Employer's Certificate of Incorporation and Bylaws. Employer shall also provide
Employee coverage under Employer's policies of directors' and officers'
liability insurance to the same extent as other executive officers of the
Company during the term of this Agreement and for a period of six years
thereafter, so long as such coverage is available on a commercially reasonable
basis. Employer shall In addition, effective as of the effective date of this
Agreement, Employer agrees to enter into that one certain Indemnity Agreement
with Employee, a copy of which is attached hereto as Exhibit C.
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k. All salary, bonus and other payments made by Employer to Employee pursuant to
this Agreement shall be subject to such payroll and withholding deductions as
may be required by law and other deductions applied generally to employees of
Employer for insurance and other employee benefit plans in which Employee
participates.
Section 3. Fiduciary Duty; Confidentiality.
a. In keeping with Employee's fiduciary duties to Employer, Employee agrees that
he shall not knowingly take any action which would create a conflict of interest
with Employer, or upon discovery thereof, allow such a conflict to continue. In
the event that Employee discovers that such a conflict exists, Employee agrees
that he shall disclose to the Board any facts which might involve a conflict of
interest that has not been approved by the Board.
b. As part of Employee's fiduciary duties to Employer, Employee agrees to
protect and safeguard Employer's information, ideas, concepts, improvements,
discoveries, and inventions and any proprietary, confidential and other
information relating to Employer or its business (collectively, "Confidential
Information") and, except as may be required by Employer, Employee shall not
knowingly, either during his employment by Employer or thereafter, directly or
indirectly, use for his own benefit or for the benefit of another, or disclose
to another, any Confidential Information, except (i) with the prior written
consent of the Employer; (ii) in the course of the proper performance of the
Employee's duties under this Agreement; (iii) for information that becomes
generally available to the public other than as a result of the unauthorized
disclosure by the Employee; (iv) for information that becomes available to
Employee on a nonconfidential basis from a source other than Employer or its
affiliated companies who is not bound by a duty of confidentiality to Employer;
or (v) as may be required by any applicable law, rule, regulation or order.
c. Upon termination of his employment with Employer, Employee shall immediately
deliver to Employer all documents in the possession or under the control of
Employee embodying any of Employer's Confidential Information.
Section 4. Term and Termination.
a. The term of Employee's employment hereunder shall be for a period of two
years, commencing January 24, 2000 and ending January 23, 2002, unless earlier
terminated in accordance with the terms of this Agreement; provided, that
beginning January 24, 2002 and on each January 24th thereafter, such term of
employment shall be extended automatically for an additional one-year period
unless Employer or Employee gives the other written notice of intent to
terminate this Agreement at least thirty days prior to such January 24th.
b. Employee's employment under this Agreement shall terminate upon Employee's
death.
c. Employer may terminate this Agreement by reason of Employee's Disability (as
hereinafter defined) after such condition of Disability has existed for at least
180 consecutive days. Employer shall give Employee sixty days notice of its
intention to effect such termination pursuant to this Section 4.c. As used in
this Agreement, except for Section 2.i., "Disability" shall
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mean a physical or mental illness, injury or incapacity lasting longer than 180
consecutive days which renders Employee unable to perform the duties assigned to
him under this Agreement.
d. Employer may terminate this Agreement upon the determination by a majority of
the entire Board that Cause (as hereinafter defined) exists therefor. As used in
this Agreement, "Cause" means (i) the willful and continued failure by Employee
substantially to perform his obligations under this Agreement (other than any
such failure resulting from his Short Term Disability, as defined in Section
2.i. or his Disability) after a demand for substantial performance has been
delivered to him by the Board which specifically identifies the manner in which
the Board believes Employee has not substantially performed such provisions,
(ii) Employee's willfully engaging in conduct materially and demonstrably
injurious to the property or business of Employer, including without limitation,
fraud, misappropriation of funds or other property of Employer, other willful
misconduct, gross negligence or conviction of a felony or other crime of moral
turpitude, or (iii) Employee's material breach of this Agreement which breach
has not been remedied by Employee within ten (10) days after receipt by Employee
of written notice from Employer that he is in material breach of the Agreement,
specifying the particulars of such breach. If the Board determines that Cause
exists, Employer may (A) terminate this Agreement effective immediately or at a
subsequent date or (B) condition Employee's continued employment upon such
considerations or requirements as may be reasonable under the circumstances and
place a reasonable limitation upon the time within which Employee shall comply
with such considerations or requirements.
e. Employee shall have the right to terminate this Agreement and his employment
hereunder for "Good Reason," which for purposes of this Agreement means (i)
Employer's failure to comply with any of the provisions of Section 2 of this
Agreement and which failure is not remedied within ten (10) days after receipt
of written notice from Employee specifying the particulars of such breach; (ii)
Employer's breach of any other material provision of this Agreement which is not
remedied within ten (10) days after receipt by Employer of written notice from
Employee specifying the particulars of such breach; (iii) the assignment to
Employee of any duties inconsistent with Employee's position (including status,
offices, titles, and reporting requirement), duties, functions responsibilities,
or authority as contemplated by Section 1 of this Agreement or other action by
the Employer that results in a diminution (other than an isolated,
inconsequential or insubstantial diminution which is remedied by Employer
promptly after receipt of written notice thereof given by Employee) in such
position, functions, responsibilities or authority; or (iv) the relocation of
the Place of Employment to a location more than fifty miles (50) miles from the
Place of Employment.
f. Employee shall also have the right to terminate his employment and this
Agreement in the event that the stockholders of Employer fail to elect Employee
to the Board at the next annual meeting of stockholders of Employer (currently
expected to be held in December 2000) or any adjournment thereof. In the event
Employee fails to exercise such right to terminate within sixty (60) calendar
days after the date such election is held, such right is waived. Any such
termination by Employee under this Section 4.f. shall be deemed a termination by
Employee for "Good Reason."
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Section 5. Effect of Termination.
a. Upon termination of this Agreement by Employer for Cause; or by Employee
other than for Good Reason, all compensation and benefits shall cease upon the
date of termination other than: (i) those benefits that are provided by
retirement and benefit plans and programs specifically adopted and approved by
Employer for Employee that are earned and vested by the date of termination,
(ii) the pro rata annual salary through the date of termination; (ii) any
incentive compensation due Employee if, under the terms of the relevant
incentive compensation arrangement, such incentive compensation was due and
payable to Employee on or before the date of termination; and (iii) medical and
similar benefits the continuation of which is required by applicable law or
provided by the applicable benefit plan.
b. Upon termination of this Agreement by Employer due to the death or Disability
of Employee, all compensation and benefits shall cease upon the date of
termination other than: (i) those benefits that are provided by retirement and
benefit plans and programs specifically adopted and approved by Employer for
Employee that are earned and vested by the date of termination, (ii) the pro
rata annual salary through the date of termination; (ii) any incentive
compensation due Employee if, under the terms of the relevant incentive
compensation arrangement, such incentive compensation was due and payable to
Employee on or before the date of termination; and (iii) medical and similar
benefits the continuation of which is required by applicable law or provided by
the applicable benefit plan. In addition, Employer shall pay to Employee or, in
the event of Employee's death, his surviving spouse or minor child or children,
or their legal representative, on a monthly basis an amount equal to the premium
payable by Employee, such spouse and/or child or children for health and dental
insurance offered by Employer or on its behalf under COBRA. Such payments shall
continue for a period of eighteen months.
c. Upon termination of (i) this Agreement by Employer by not extending the term
of this Agreement upon giving notice to Employee to terminate this Agreement in
accordance with Section 4.a.; (ii) Employee's employment by Employer at any time
for any reason other than for Cause or due to Employee's death or Disability; or
(iii) this Agreement by Employee for Good Reason during the term hereof, the
obligations of Employer and Employee under Sections 1 and 2 shall terminate as
of the date this Agreement is terminated, and Employer shall pay or provide to
Employee:
i. Employee's pro rata annual salary through the date of termination;
ii. incentive compensation due Employee, if any, under the terms of the
relevant incentive compensation arrangement; and
iii. within thirty days of said termination, a severance benefit equal to
two years of Employee's annual base salary.
All other compensation and benefits shall cease upon the date of termination
other than the following: (i) those benefits that are provided by retirement and
benefit plans and programs specifically adopted and approved by Employer for
Employee that are earned and vested by the
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date of termination, (ii) any rights Employee or his survivors may have under
the Restricted Stock Agreement or under any grants of options to purchase
Employer's Common Stock made in accordance with Section 2.c. hereof; and (iii)
medical and similar benefits the continuation of which is required by applicable
law or as provided by the applicable benefit plan.
The payments and benefits provided under this Section 5 shall be payable without
regard to Employee's other income or his ability to obtain other employment and
Employee shall be under not duty to mitigate the amount payable under this
section.
As a condition to making the payments and providing the benefits specified in
Section 5.c., Employer will require that Employee execute a release of certain
contractual and statutory claims Employee may have against Employer at the time
of Employee's termination. Such release shall be in substantially the same form
as Exhibit D attached hereto.
Section 6. Miscellaneous.
a. For a period of one year after the termination of Employee's employment with
Employer, Employee shall not, either on his own account or for any person, firm,
partnership, corporation, or other entity (i) solicit any employee of Employer
or its affiliates to leave his or her employment; or (ii) induce or attempt to
induce any such employee to breach her or his employment agreement with
Employer; provided, however, that these restrictions shall not apply with
respect to any such employee who (i) was personally recruited to the Employer or
its affiliate by Employee and (ii) became an employee of Employer or its
affiliate on or before January 23, 2001.
b. All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
delivered by hand or by registered or certified mail, return receipt requested
to the addresses set forth below in this Section 6.
If to Employer, to:
Veritas DGC Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
If to Employee, to:
Xx. Xxxxxxx X. Xxxxx
19822 Timberwind
Xxxxxxx, Xxxxx 00000
or to such other names or addresses as Employer or Employee, as the case may be,
shall designate by notice to the other party hereto in the manner specified in
this Section.
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c. This Agreement shall be binding upon and inure to the benefit of Employer,
its successors, legal representatives and permitted assigns, and upon Employee,
his heirs, executors, administrators, representatives and permitted assigns.
Neither Party may assign its or his rights, duties and obligations hereunder
without the express written consent of Employer, which consent may be withheld
for any or no reason; provided, however, that Employer may assign this Agreement
without Employee's consent in the event of a bona fide corporate reorganization
of Employer in which Employer transfers all or substantially all of its assets
to a corporation owned by substantially the same shareholders as owned Employer
immediately prior to the transaction.
d. This Agreement supersedes, replaces and merges all previous agreements and
discussions relating to the same or similar subject matters between Employee and
Employer and constitutes the entire agreement between Employee and Employer with
respect to the subject matter of this Agreement. This Agreement may not be
modified in any respect by any verbal statement, representation or agreement
made by any employee, officer, or representative of Employer or by any written
agreement unless signed by an officer of Employer who is expressly authorized by
the Board to execute such document.
e. Except as expressly provided herein, the provisions of this Agreement, and
any payment or benefits provided for under this Agreement, shall not reduce any
amounts or benefits otherwise payable to or due Employee, or exclude or limit
Employee's participation in other benefits available to the Employer's executive
personnel generally, or in any way diminish the Employee's rights as an
employee, whether existing as of the date of this Agreement or thereafter, under
any employee benefit plan, program or arrangement or other contract or agreement
of the Employer providing benefits to the Employee.
f. If any provision of this Agreement or application thereof to anyone or under
any circumstances shall be determined to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provisions or
applications of this Agreement which can be given effect without the invalid or
unenforceable provision or application. In addition, if any provision of this
Agreement is held by an arbitration panel or a court of competent jurisdiction
to be invalid, unenforceable, unreasonable, unduly restrictive or overly broad,
the parties intend that such arbitration panel or court modify said provision so
as to render it valid, enforceable, reasonable and not unduly restrictive or
overly broad.
g. The internal laws of the State of Texas will govern the interpretation,
validity, enforcement and effect of this Agreement without regard to the place
of execution or the place for performance thereof.
Section 7. Arbitration.
a. Employer and Employee agree to submit to final and binding arbitration any
and all disputes or disagreements concerning the interpretation or application
of this Agreement. Any such dispute or disagreement shall be resolved by
arbitration in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (the "AAA Rules").
Arbitration shall take place in Houston, Texas, unless the parties mutually
agree to a different location. Within 30 calendar days of the initiation of
arbitration hereunder, each
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party shall designate an arbitrator. The appointed arbitrators shall then
appoint a third arbitrator. Employee and Employer agree that the decision of the
arbitrators shall be final and binding on both parties. Any court having
jurisdiction may enter a judgment upon the award rendered by the arbitrators. In
the event the arbitration is decided in whole or in part in favor of Employee,
Employer shall reimburse Employee for his reasonable costs and expenses of
arbitration, including reasonable attorneys' fees. Regardless of the outcome of
the arbitration, Employer shall pay all fees and expenses of the arbitrators and
all of Employer's costs of arbitration.
b. Notwithstanding the provisions of Section 7.a., Employer may, if it so
chooses, bring an action in any court of competent jurisdiction for injunctive
relief to enforce Employee's obligations under Sections 3.b., 3.c., or 6.a.
hereof.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
EMPLOYER:
VERITAS DGC INC.
By:
----------------------------------------
Xxxxx X. Xxxxxx
Chairman
EMPLOYEE:
-------------------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
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March 12, 2000
Xxxxxxx X. Xxxxx
00000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Dear Xxxxxxx:
Pursuant to the terms and conditions of the company's 1992 Employee Nonqualified
(the "Plan"), you have been granted a Non-Qualified Stock Option to purchase
______ shares (the "Option") of stock as outlined below.
Granted To: Xxxxxxx X. Xxxxx
SSN: _____________
Grant Date: March 12, 2000
Options Granted: _____________
Option Price per Share: $____________
Expiration Date: March 12, 2010
Vesting Schedule:
25% on 3/12/2000 (25% vested upon grant)
25% on 3/12/2001
25% on 3/12/2002
25% on 3/12/2003
By my signature below, I hereby acknowledge receipt of this Option granted on
the date shown above, which has been issued to me under the terms and conditions
of the Plan. I further acknowledge receipt of the copy of the Plan and agree to
conform to all of the terms and conditions of the Option and the Plan.
Signature:________________________________ Date:__________________
Xxxxxxx X. Xxxxx
Note: If there are any discrepancies in the name or address shown above, please
make the appropriate corrections on this form.
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VERITAS DGC INC.
FIFTH AMENDED AND RESTATED
1992 EMPLOYEE NONQUALIFIED STOCK OPTION PLAN
(AS AMENDED AND RESTATED SEPTEMBER 30, 1999)
1. PURPOSE.
The purpose of this 1992 Employee Nonqualified Stock Option Plan (the
"Plan") of Veritas DGC Inc. (the "Company") (formerly known as Digicon Inc.) is
to provide officers and other key employees with a continuing proprietary
interest in the Company. The Plan is intended to advance the interests of the
Company by enabling it (i) to increase the interest in the Company's welfare of
those employees who share the primary responsibility for the management, growth,
and protection of the business of the Company, (ii) to furnish an incentive to
such persons to continue their services to the Company, (iii) to provide a means
through which the Company may continue to induce able management and operating
personnel to enter its employ, and (iv) to provide a means through which the
Company may effectively compete with other organizations offering similar
incentive benefits in obtaining and retaining the services of competent
management and operating personnel.
2. STOCK SUBJECT TO THE PLAN.
The Company may grant from time to time options to purchase shares of the
Company's authorized but unissued common stock, par value $.01 per share, or
treasury shares of the common stock. Subject to adjustment as provided in
Section 11 hereof, the aggregate number of shares which may be issued or covered
by options pursuant to the Plan is 3,954,550 shares, as adjusted for the one for
three reverse stock split effective January 17, 1995. Shares of common stock
applicable to options which have expired unexercised or terminated for any
reason may again be subject to an option or options under the Plan.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Compensation Committee of the
Company's board of directors (the "Committee"). The board of directors may, from
time to time, remove members from or add members to the Committee. Vacancies in
the Committee, however caused, shall be filled by the board of directors. No
member of the Committee shall be eligible to receive options under the Plan. The
Committee shall select one of its members chairman and shall hold meetings at
such times and places as it may determine. The Committee may appoint a secretary
and, subject to the provisions of the Plan and to policies determined by the
board of directors, may make such rules and regulations for the conduct of its
business as it shall deem advisable. A majority of the Committee shall
constitute a quorum. All action of the Committee shall be taken by a majority of
its members. Any action may be taken by a written instrument signed by a
majority of the members, and action so taken shall be fully as effective as if
it had been taken by a vote of the majority of the members at a meeting duly
called and held.
(b) Subject to the express terms and conditions of the Plan, the Committee
shall have
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full power to construe or interpret the Plan, to prescribe, amend, and rescind
rules and regulations relating to it and to make all other determinations
necessary or advisable for its administration.
(c) Subject to the provisions of Sections 4 and 5 hereof, the Committee
may, from time to time, determine which employees of the Company or subsidiary
corporations shall be granted options under the Plan, the number of shares
subject to each option, and the time or times at which options shall be granted.
(d) The Committee shall report to the board of directors the names of
employees granted options, and the number of option shares subject to, and the
terms and conditions of, each option; provided, however that no option may be
granted to an otherwise eligible employee if, after giving effect to the
proposed grant, such employee would then hold options covering more than 500,000
shares of common stock under the Plan.
(e) No member of the board of directors or of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any option.
4. ELIGIBILITY.
All full-time salaried employees of the Company and of its majority-owned
subsidiaries shall be eligible to participate in the Plan, and options may be
granted by the Committee to eligible employees designated by the Committee,
either at the Committee's own initiative or upon the recommendation of
management. In determining the employees to whom options shall be granted and
the number of shares to be covered by each option, the Committee may take into
account the nature of the services rendered by the respective employees, their
present and potential contributions to the success of the Company, and such
other factors as the Committee in its discretion shall deem relevant. The
Company shall effect the granting of options under the Plan in accordance with
the determination made by the Committee.
5. PRICE OF OPTIONS.
The option price per share shall be not less than the lesser of (i) fair
market value of the common stock on the date the option is granted or (ii) the
average fair market value for the common stock during the thirty trading days
ending on the trading day next preceding the date the option is granted. Fair
market value on any day shall be deemed to be the last reported sale price of
the common stock on the principal stock exchange on which the Company's common
stock is traded on that date. If no trading occurred on such date, or, if at the
time the common stock shall not be listed for trading, fair market value shall
be deemed to be the mean between the quoted bid and asked prices for the common
stock on such exchange or in the over-the-counter market, as the case may be, on
that date.
6. TERM OF OPTION.
No option shall be exercisable after the expiration of ten years from the
date the option is granted.
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7. EXERCISE OF OPTIONS.
(a) General. Except as provided below, each option may be exercised at such
times and in such amounts as the Committee in its discretion may provide.
(b) Manner of Exercising Options. Shares of common stock purchased under
options shall at the time of purchase be paid for in full. To the extent that
the right to purchase shares has accrued hereunder, options may be exercised
from time to time by written notice to the Company stating the full number of
shares with respect to which the option is being exercised, and the time of
delivery thereof, which shall be at least 15 days after the giving of such
notice unless an earlier date shall have been mutually agreed upon. At such
time, the Company shall, without transfer or issue tax to the optionee (or other
person entitled to exercise the option) deliver to the optionee (or to such
other person) at the principal office of the Company, or such other place as
shall be mutually acceptable, a certificate or certificates for such shares
against prior payment of the option price in full on the date of notice of
exercise for the number of shares to be delivered by certified or official bank
check or the equivalent thereof acceptable to the Company; provided, however,
that the time of such issuance and delivery may be postponed by the Company for
such period as may be required for it with reasonable diligence to comply with
any requirements of law, the listing requirements of the New York Stock Exchange
or any other exchange on which the common stock may then be listed. If the
optionee (or other person entitled to exercise the option) fails to pay for all
or any part of the number of shares specified in such notice or to accept
delivery of such shares upon tender of delivery thereof, the right to exercise
the option with respect to such undelivered shares shall be terminated.
8. NON-ASSIGNABILITY OF OPTION RIGHTS.
No option granted under the Plan shall be assignable or transferable
otherwise than by will or by the laws of descent and distribution. During the
lifetime of an optionee, the option shall be exercisable only by him.
9. TERMINATION OF EMPLOYMENT.
Except as otherwise provided in this paragraph, options shall terminate 90
days following the termination of the optionee's employment with the Company for
any reason, but shall be exercisable following termination only to the extent
that the option had become vested on the termination date. In the event that the
optionee retires from the Company (at or after age 65) the optionee shall have
the right, subject to the provisions of Section 6, to exercise his option at any
time within one year after such termination, to the extent that such option had
become vested on the termination date. If, however, the optionee shall die in
the employment of the Company, then for the lesser of the maximum period during
which such option might have been exercisable or one year after the date of
death, his estate, personal representative, or beneficiary shall have the same
right to exercise the option of such employee as he would have had if he had
survived and remained in the employment of the Company. For purposes of this
Section 9, employment by any majority-owned subsidiary corporation of the
Company shall be deemed employment by the Company.
In the discretion of the Committee, a leave of absence approved in writing
by the board of
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directors of the Company shall not be deemed a termination of employment;
however, no option may be exercised during such leave of absence.
10. CHANGE OF CONTROL.
If, at any time, a person, entity or group (including, in each case, all
other persons, entities or groups controlling, controlled by, or under common
control with or acting in concert or concurrently with, such person, entity or
group) shall hold, purchase or acquire beneficial ownership (including without
limitation power to vote) of 50% or more of the then outstanding shares of the
Company's common stock, then any portion of the Options which have not yet
become exercisable shall thereupon become immediately exercisable.
11. ADJUSTMENT OF OPTIONS ON RECAPITALIZATION OR REORGANIZATION.
The aggregate number of shares of common stock on which options may be
granted to persons participating under the Plan, the aggregate number of shares
of common stock on which options may be granted to any one such person, the
number of shares thereof covered by each outstanding option, and the price per
share thereof in each such option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of common stock of the
Company resulting from the subdivision or combination of shares or other capital
adjustments, or the payment of a stock dividend after the effective date of this
Plan, or other increase or decrease in such shares effected without receipt of
consideration by the Company; provided, however, that no adjustment shall be
made unless the aggregate effect of all such increases and decreases occurring
in any one fiscal year after the effective date of this Plan will increase or
decrease the number of issued shares of common stock of the Company by 5% or
more; and, provided, further, that any options to purchase fractional shares
resulting from any such adjustment shall be eliminated.
Subject to any required action by the stockholders and to Section 10
hereof, if the Company shall be the surviving or resulting corporation in any
merger or consolidation, any option granted hereunder shall pertain to and apply
to the securities to which a holder of the number of shares of common stock
subject to option would have been entitled had such option been exercised
immediately preceding such merger or consolidation; but a dissolution or
liquidation of the Company, or a merger or consolidation in which the Company is
not the surviving or resulting corporation (except for a change in Control as
defined in Section 10 hereof in which case Section 10 shall govern then
outstanding options) shall cause every option outstanding hereunder to
terminate, except that the surviving or resulting corporation may, in its
absolute and uncontrolled discretion, tender an option or options to purchase
its shares on its terms and conditions, both as to the number of shares and
otherwise.
Adjustments under this Section shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
12. AGREEMENTS BY OPTIONEE.
Each individual optionee shall agree:
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(a) If requested by the Company, at the time of exercise of any option, to
execute an agreement stating that he is purchasing the shares subject to option
for investment purposes and not with a view to the resale or distribution
thereof;
(b) To authorize the Company to withhold from his gross pay any tax which
it believes is required to be withheld with respect to any benefit under the
Plan, and to hold as security for the amount to be withheld any property
otherwise distributable to the optionee under the Plan until the amounts
required to be withheld have been so withheld.
13. RIGHTS AS A SHAREHOLDER.
The optionee shall have no rights as a stockholder with respect to any
shares of common stock of the Company held under option until the date of
issuance of the stock certificates to him for such shares.
14. EFFECTIVE DATE.
The Plan was effective as of September 1, 1992, upon approval by the
holders of a majority of the shares of outstanding capital stock present at the
December 17, 1992 annual meeting of the Company's stockholders. The Plan was
amended by the board of directors on August 29, 1997, amended and restated by
the board of directors on March 10, 1997, and December 9, 1998, and amended by
the board of directors on March 9, 1999.
15. AMENDMENTS.
(a) The board of directors may, from time to time, alter, suspend or
terminate the Plan, or alter or amend any and all option agreements granted
thereunder but only for one or more of the following purposes:
(1) To modify the administrative provisions of the Plan or options;
(2) To make any other amendment which does not materially alter the
intent or benefits of the Plan; or
(3) Increase the maximum number of shares as to which options may be
granted under the Plan either to all persons participating in the Plan or
to any one such person.
(b) It is expressly provided that no such action of the board of directors
may, without the approval of the stockholders, alter the provisions of the Plan
or option agreements granted thereunder so as to:
(1) Decrease the option price applicable to any options granted under
the Plan, provided, however, that the provisions of this clause (1) shall
not prevent the granting, to any person holding an option under the Plan,
of additional options under the Plan
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exercisable at a lower option price; or
(2) Alter any outstanding option agreement to the detriment of the
optionee, without his consent.
16. EMPLOYMENT OBLIGATION.
The granting of any option under this Plan shall not impose upon the
Company any obligation whatsoever to employ or to continue to employ any
optionee, and the right of the Company to terminate the employment of any
officer or other employee shall not be diminished or affected by reason of the
fact that an option has been granted to him under the Plan.
17. VES OPTIONS.
In order to carry out the terms of (i) the Combination Agreement dated May
10, 1996, between the Company and Veritas Energy Services Inc. ("VES") which was
approved by the Company's stockholders at a special meeting held on August 20,
1996 and (ii) the Plan of Arrangement under Part 15 of the Business Corporations
Act (Alberta) relating to the combination of the Company and VES which, pursuant
to an interim order of the Court of Queen's Bench of Alberta date July 18, 1996,
was approved at special meetings of VES optionholders and shareholders held
August 20, 1996, this Plan shall include under its terms each of the options
(the "VES Options") outstanding on the Effective Date (as defined in the
Combination Agreement) (which includes all outstanding options granted under
VES' Stock Option Plan for Directors, Officers and Key Employees (the "VES
Option Plan")) without any further action on the part of any holder thereof
(each a "VES Optionholder"). Effective as of the Effective Time, each VES Option
will be exercisable to purchase that number of shares of the Company's common
stock determined by multiplying the number of VES common shares (the "VES Common
Shares") subject to such VES Option at the Effective Time by the Exchange Ratio
(as defined in the Combination Agreement), at an exercise price per share of
such VES Option immediately prior to the Effective Time, divided by the Exchange
Ratio. On the Effective Date (as defined in the Combination Agreement), such
option price shall be converted into a United States dollar equivalent based on
the noon spot rate of exchange of the Bank of Canada on such date. If the
foregoing calculation results in an exchanged VES Option being exercisable for a
fractional share of the Company's common stock, then the number of shares of the
Company's common stock subject to such option will be rounded down to the
nearest whole number of shares and the total exercise price for the option will
be reduced by the exercise price of the fractional share. The term,
exercisability, vesting schedule and all other terms and conditions of the VES
Options will otherwise be unchanged and shall operate in accordance with their
terms, notwithstanding anything to the contrary contained herein.
18. ENERTEC OPTIONS
In order to carry out the terms of (i) the Combination Agreement dated as
of March 30, 1999, which was approved by the Company's stockholders at a special
meeting held on September 21, 1999, and (ii) the Plan of Arrangement under Part
15 of the Business Corporations Act (Alberta) relating to the combination of the
Company and Enertec Resource Services Inc.,
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which, pursuant to an amended interim order of the Court of Queen's Bench of
Alberta dated August 11, 1999, was approved at special meetings of Enertec
option holders and shareholders held September 22, 1999, this Plan shall include
under its terms each of the options (the "Enertec Options") outstanding on the
Effective Date (as defined in the Combination Agreement)(which includes all
outstanding options granted under Enertec's stock option plans for directors,
officers and employees (collectively, the "Enertec Option Plan")) without any
further action on the part of any holder thereof (each a "Enertec
Optionholder"). Effective as of the Effective Time, each Enertec Option will be
exercisable to purchase that number of shares of the Company's common stock
determined by multiplying the number of Enertec common shares (the "Enertec
Common Shares") subject to such Enertec Option at the Effective Time by the
Exchange Ratio (as defined in the Combination Agreement), at an exercise price
per share of the Company's common stock equal to the exercise price per share of
such Enertec Option immediately prior the Effective Time, divided by the
Exchange Ratio. On the Effective Date (as defined in the Combination Agreement),
such option price shall be converted into a United States dollar equivalent
based on the rate of exchange as stated in The Wall Street Journal next
published after the Effective Time. If the foregoing calculation results in an
exchanged Enertec Option being exercisable for a fractional share of the
Company's common stock, then the number of shares of the Company's common stock
subject to such option will be rounded down to the nearest whole number of
shares and the total exercise price for the option will be reduced by the
exercise price of the fractional share. Each exchanged Enertec Option shall be:
(a) fully vested immediately after the Effective Time; and
(b) for a term commencing at the Effective Time and ending as follows:
(1) for each optionholder who:
(i) is an Enertec director, officer or employee as at the
Effective Time (a "Current Optionholder"); and
(ii) after the Effective Time is employed or retained by the
Company, Enertec or one of their Subsidiaries, on the date
as set forth in subsections 5(b) and (d) of the Enertec
Option Plan;
(2) for each Current Optionholder who at the Effective Time is not
retained as a director, officer or employee of the Company,
Enertec or one of their subsidiaries, on the date that is the
first business day on or immediately after the date that is 90
days after the later of the Effective Date and the date such
director, officer or employee is terminated; or
(3) notwithstanding the provisions of (1) and (2) above, the Enertec
Option Plan or the Plan, for each Current Optionholder with an
Executive Termination Contract (as defined in the Combination
Agreement), on the current expiry date of such option (the sixth
anniversary date).
The term, exerciseability, and all other terms and conditions of the
Enertec Options will otherwise be unchanged and shall operate in accordance with
their terms, notwithstanding anything to the contrary contained herein."
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EXHIBIT B
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RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "AGREEMENT") is made and entered into by
and between Veritas DGC Inc., a Delaware corporation (the "COMPANY") and Xxxxxxx
X. Xxxxx, an employee of the Company ("EMPLOYEE") on this 24th day of January,
2000 pursuant to the Company's Restricted Stock Plan (the "PLAN"), which is
incorporated by reference herein in its entirety.
WHEREAS, Employee is employed by Veritas DGC Inc., and in connection with such
employment as part of Employee's compensation, the Company desires to grant to
Employee twenty-five thousand (25,000) shares of the Company's common stock, par
value $.01 per share (the "COMMON STOCK"), subject to the terms and conditions
of this Agreement, with a view to increasing Employee's equity interest in the
Company and
WHEREAS, Employee desires to have the opportunity to hold shares of Common Stock
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings indicated:
a. "Forfeiture Restrictions" shall mean any prohibitions and
restrictions set forth herein with respect to the sale or other
disposition of shares of Common Stock issued to Employee
hereunder and the obligation to forfeit and surrender such shares
to the Company.
b. "Restricted Shares" shall mean shares of Common Stock that are
subject to the Forfeiture Restrictions under this Agreement.
Capitalized terms not otherwise defined in this Agreement shall
have the meanings given to such terms in the Plan.
2. GRANT OF RESTRICTED SHARES. On the date of this Agreement, the Company
shall cause to be issued in Employee's name twenty-five thousand
(25,000) shares of Common Stock as Restricted Shares. A certificate
evidencing the Restricted Shares shall be issued by Company in
Employee's name, pursuant to which Employee shall have, except for the
Forfeiture Restrictions, all of the rights of a stockholder of Company
with respect to such Restricted Shares, including, without limitation,
the right to receive any dividends or distributions allocable thereto.
The certificate shall be delivered upon issuance to the Secretary of
Company or to such other depository as may be designated by the
Committee under the Plan as a depository for safekeeping until the
forfeiture of such Restricted Shares occurs or the Forfeiture
Restrictions lapse. On the date of this Agreement, Employee shall
deliver to the Company all stock powers, endorsed in blank, relating
to the Restricted Shares. Upon the lapse of the Forfeiture
Restrictions
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without forfeiture, the Company shall cause a new certificate or
certificates to be issued without legend in the name of Employee in
exchange for the certificate evidencing the Restricted Shares.
3. TRANSFER RESTRICTIONS. The Restricted Shares may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise transferred,
encumbered or disposed of to the extent then subject to the Forfeiture
Restrictions. Further, the Restricted Shares may not be sold or
otherwise disposed of in any manner which would constitute a violation
of any applicable federal or state securities laws. Employee also
agrees (i) that Company may refuse to register the transfer of the
Restricted Shares on the stock transfer records of Company if such
proposed transfer would in the opinion of counsel satisfactory to the
Company constitute a violation of any applicable securities law and
(ii) that the Company may give related instructions to its transfer
agent, if any, to stop registration of the transfer of the Restricted
Shares. The Forfeiture Restrictions shall be binding upon and
enforceable against any transferee of the Restricted Shares.
Certificates representing the Restricted Shares shall be legended as
follows to reflect the Forfeiture Restrictions and to assure
compliance with any applicable federal or state securities laws:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE
SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
RESTRICTIONS, TERMS AND CONDITIONS (INCLUDING
FORFEITURE AND RESTRICTIONS AGAINST TRANSFER)
CONTAINED IN THE VERITAS DGC INC. RESTRICTED STOCK
PLAN AND A RESTRICTED STOCK AGREEMENT DATED
JANUARY 24, 2000 BETWEEN THE REGISTERED OWNER OF
SUCH SHARES AND VERITAS DGC INC. RESTRICTIONS ON
THE RIGHT TO OWN OR TRANSFER THE SHARES OF STOCK
REPRESENTED BY THIS CERTIFICATE HAVE BEEN IMPOSED
PURSUANT TO SAID RESTRICTED STOCK AGREEMENT. A
COPY OF THE RESTRICTED STOCK AGREEMENT IS ON FILE
AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED WITHOUT CHARGE TO THE HOLDER OF THIS
CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE
OF A WRITTEN REQUEST FROM THE HOLDER REQUESTING
SUCH COPY.
4. VESTING. The Forfeiture Restrictions shall lapse as to the Restricted
Shares in accordance with the following schedule provided that
Employee has been employed, as defined in the plan, from the date of
this Agreement through the lapse date:
NUMBER OF
RESTRICTED SHARES AS TO
WHICH FORFEITURE
LAPSE DATE RESTRICTIONS LAPSE
---------- -------------------------
January 24, 2001 8,333
January 24, 2002 8,333
January 24, 2003 8,334
Notwithstanding the foregoing provisions of this Section 4, in the
event Employee's employment with Company is terminated prior to the
lapse dates (i) by Company without Cause, as defined in the employment
agreement dated January 24, 2000 between Employee and the Company (the
"Employee Agreement"), (ii) due to the death or Disability, as defined
in the Employment Agreement, of Employee, or (iii) due to a Change in
Control of the Company, as defined in Section 3.7 of the Plan, then,
in any such event, all remaining Forfeiture Restrictions shall
immediately lapse and the Restricted Shares shall then be transferable
free of restrictions.
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5. CAPITAL ADJUSTMENTS AND REORGANIZATIONS. The existence of the
Restricted Shares shall not affect in any way the right or power of
Company to make or authorize any adjustment, recapitalization,
reorganization or other change in Company's capital structure or its
business, any merger or consolidation of Company, any issue of debt or
equity securities, the dissolution or liquidation of Company, or any
sale, lease, exchange or other disposition of all or any part of its
assets or business, or any other corporate act or proceeding. The
prohibitions of this Section 5 shall not apply to the transfer of
Restricted Shares pursuant to a plan of reorganization of Company, but
the stock, securities or other property received in exchange therefor
shall also become subject to the Forfeiture Restrictions and
provisions governing the lapsing of such Forfeiture Restrictions
applicable to the original Restricted Shares for all purposes of this
Agreement and the certificates representing such stock, securities or
other property shall be legended to show such restrictions.
6. TAX WITHHOLDING. To the extent that the receipt of the Restricted
Shares or the lapse of any Forfeiture Restrictions results in
compensation income to Employee for federal, state or local income tax
purposes, Employee shall deliver to Company at the time of such
receipt or lapse, as the case may be, such amount of money as Company
may require to meet its obligation under applicable tax laws or
regulations, and, if such Employee fails to do so, Company is
authorized to withhold from any cash or stock remuneration then or
thereafter payable to Employee any tax required to be withheld by
reason of such resulting compensation income.
7. CONSIDERATION PAID FOR SHARES. As consideration for the issuance of
the Restricted Shares, Employee shall pay Company the par value of
such Restricted Shares.
8. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee
shall be considered to be in the employment of Company as long as
Employee remains in Employment (as defined in the Plan). The Committee
shall determine any questions as to whether and when there has been a
termination of such Employment, and the cause of such termination,
under the Plan and its determination shall be final. In each case,
however, the cause of termination shall be treated the same under the
Plan and under the Employment Agreement.
9. CERTAIN TRANSFERS VOID. Any purported transfer of shares of Restricted
Shares in breach of any provision of this Agreement shall be void and
ineffectual, and shall not operate to transfer any interest or title
in the purported transferee.
10. NO FRACTIONAL SHARES. All provisions of this Agreement concern whole
shares of Common Stock. If the application of any provision hereunder
would yield a fractional share, such fractional share shall be rounded
down to the next whole share if it is less than 0.5 and rounded up to
the next whole share if it is 0.5 or more.
11. NOT AN EMPLOYMENT AGREEMENT. This Agreement is not an employment
agreement, and no provision of this Agreement shall be construed or
interpreted to create an employment relationship between Employee and
the Company, or otherwise effect any at-will employment relationship
between Employee and the Company or guarantee the right to Employment
for any specified term.
12. NOTICES. Any notice, instruction, authorization, request or demand
required hereunder shall be in writing, and shall be delivered either
by personal delivery, by telegram, telex, telecopy or similar
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facsimile means, by certified or registered mail, return receipt
requested, or by courier or delivery service, addressed to the Company
at the address indicated beneath its signature on the execution page
of this Agreement, and to Employee at Employee's address indicated on
the Company's stock records, or at such other address and number as a
party shall have previously designated by written notice given to the
other party in the manner hereinabove set forth. Notices shall be
deemed given when received.
13. AMENDMENT AND WAIVER. This Agreement may be amended, modified or
superseded only by written instrument executed by the Company and
Employee. Only a written instrument executed and delivered by the
party waiving compliance hereof shall make any waiver of the terms or
conditions. Any waiver granted by the Company shall be effective only
if executed and delivered by a duly authorized executive officer of
the Company other than Employee. The failure of any party at any time
or times to require performance of any provisions hereof shall in no
manner effect the right to enforce the same. No waiver by any party of
any term or condition, or the breach of any term or condition
contained in this Agreement, in one or more instances, shall be
construed as a continuing waiver of any such condition or breach, a
waiver of any other condition, or the breach of any other term or
condition.
14. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of Texas without regard to its conflicts of law
provisions. The invalidity of any provision of this Agreement shall
not affect any other provision of this Agreement, which shall remain
in full force and effect.
15. SUCCESSORS AND ASSIGNS. Subject to the limitations which this
Agreement imposes upon transferability of shares of Common Stock, this
Agreement shall bind, be enforceable by and inure to the benefit of
the Company and its successors and assigns, and to Employee, his
permitted assigns and upon his death, his estate and beneficiaries
thereof (whether by will or the laws of descent and distribution),
executors, administrators, agents, legal and personal representatives.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original for all purposes but
all of which taken together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, Company has caused this Agreement to be duly executed by an
officer thereunto duly authorized, and the Employee has executed this Agreement,
all as of the date first above written.
COMPANY:
VERITAS DGC INC.
By:
-------------------------------------
XXXXXX XXXXX XXXXX
Corporate Vice President of Human Resources
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
EMPLOYEE:
---------------------------------------------
Xxxxxxx X. Xxxxx
Address:
19822 Timberwind
Xxxxxxx, Xxxxx 00000
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IRREVOCABLE STOCK POWER
KNOW ALL MEN BY THESE PRESENTS, THAT the undersigned, FOR VALUE RECEIVED, has
bargained, sold, assigned and transferred and by these presents does bargain,
sell, assign and transfer unto Veritas DGC Inc., a Delaware Corporation (the
"Company"), twenty-five thousand (25,000) shares of common stock, $.01 par
value, of the Company, Standing in the undersigned's name on the books of the
Company represented by Certificate No. _____; AND subject to and in accordance
with The Restricted Stock Agreement dated January 24, 2000 between the
undersigned and the Company, the undersigned does hereby constitute and appoint
_____________________________________ its true and lawful attorney, IRREVOCABLY,
for the undersigned and in its name and stead, to sell assign, transfer,
hypothecate, pledge and make over all or any part of the said stock and for that
purpose to make and execute all necessary acts of assignment and transfer
thereof, and to substitute one or more persons with like full power, hereby
ratifying and confirming all that said Attorney or his substitutes shall
lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand on this 24th day
of January, 2000.
----------------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT C
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INDEMNITY AGREEMENT
THIS AGREEMENT made this 24th day of January, 2000, between Veritas DGC
Inc., a Delaware corporation ("Company"), and Xxxxxxx X. Xxxxx, ("Indemnitee")
WHEREAS, the Company and Indemnitee desire that Indemnitee continue to
serve as a director and/or executive officer of the Company; and
WHEREAS, the Company desires and intends hereby to provide
indemnification (including advancement of expenses) against any and all
liabilities asserted against Indemnitee to the fullest extent permitted by the
General Corporation Law of the State of Delaware,
NOW, THEREFORE,
W I T N E S S E T H:
THAT for and in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Continued Service. Indemnitee will continue to serve, at the will of
the Company and under separate contract, if such exists, as a director and/or
executive officer so long as he is duly elected and qualified in accordance with
the Bylaws of the Company or until he tenders his resignation.
2. Indemnification. The Company shall indemnify Indemnitee as follows:
(a) The Company shall indemnify Indemnitee when he is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that he is or was a director, executive officer, employee or
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agent of the Company, or is or was serving at the request of the Company as a
director, executive officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, executive officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee failed to act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Company shall indemnify Indemnitee when he is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, executive officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, executive officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and except that no indemnification shall be made
in
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respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) Any indemnification under paragraphs (a) and (b) of this Section
2 (unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination (in accordance with Section 3 hereof)
that indemnification of Indemnitee is proper in the circumstances because he has
met the applicable standard of conduct set forth in paragraphs (a) and (b) of
this Section 2. Such determination shall be made (1) by a majority vote of the
board of directors who were not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the stockholders.
(d) Expenses (including attorneys' fees) incurred by Indemnitee in
defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding as authorized (in accordance with Section 4
hereof) by the board of directors in the specific case upon receipt of an
undertaking by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the Company
under this Agreement or otherwise.
(e) The indemnification and advancement of expenses provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may be
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entitled under any statute, bylaw, insurance policy, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue after Indemnitee has ceased to be a director,
executive officer, employee or agent and shall inure to the benefit of his
heirs, executors and administrators.
3. Determination of Right to Indemnification. For purposes of making
the determination in a specific case under paragraph (c) of Section 2 hereof
whether to make indemnification, the board of directors, independent legal
counsel, or stockholders, as the case may be, shall make such determination in
accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a sworn
statement of request for indemnification substantially in the form of Exhibit 1
attached hereto and made a part hereof ("Indemnification Statement") averring
that he has met the applicable standard of conduct set forth in paragraphs (a)
and (b) of Section 2 hereof;
(b) Submission of the Indemnification Statement to the board of
directors shall create a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement, and the board of directors, independent
legal counsel, or stockholders, as the case may be, shall within 60 days after
submission of the Indemnification Statement specifically determine that
Indemnitee is so entitled, unless it or they shall possess sufficient evidence
to rebut the presumption that Indemnitee has met the applicable standard of
conduct set forth in paragraph (a) or (b) of Section 2 hereof, which evidence
shall be disclosed to Indemnitee with particularity in a sworn written statement
signed by all persons who participated in the determination and voted to deny
indemnification.
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4. Authorization of Advancement of Expenses. For purpose of determining
whether to authorize advancement of expenses in a specific case pursuant to
paragraph (d) of Section 2 hereof, the board of directors shall make such
determination in accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a sworn
statement of request for advancement of expenses substantially in the form of
Exhibit 2 attached hereto and made a part hereof ("Undertaking"), averring that
(i) he has reasonably incurred or will reasonably incur actual expenses in
defending a civil or criminal action, suit or proceedings, and (ii) he
undertakes to repay such amount if it is ultimately determined that he is not
entitled to be indemnified by the Company under this Agreement or otherwise;
(b) Upon receipt of the Undertaking the board of directors shall
within 14 days authorize immediate payment of the expenses stated in the
Undertaking.
5. Merger, Consolidation or Change in Control. In the event that the
Company shall be a constituent corporation in a consolidation or merger, whether
the Company is the resulting or surviving corporation or is absorbed, or if
there is a change in control of the Company as defined in Section 6 hereof,
Indemnitee shall stand in the same position under this Agreement with respect to
the resulting, surviving or changed corporation as he would have with respect to
the Company if its separate existence had continued or if there had been no
change in the control of the Company.
6. Certain Definitions. For purposes of this Agreement, the following
definitions apply herein:
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"other enterprises" shall include employee benefit plans, and civic,
non-profit, or charitable organizations, whether or not incorporated;
"fines" shall include any excise taxes assessed on Indemnitee with
respect to any employee benefit plan;
"serving at the request of the Company" shall include any service at
the request or with the express or implied authorization of the Company, as a
director, executive officer, employee or agent of the Company which imposes
duties on, or involves services by, Indemnitee with respect to a corporation or
"other enterprises," its participants or beneficiaries; and if Indemnitee acted
in good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of such "other enterprises," he shall be
deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to in this Agreement; and
"change of control" shall include any change in the ownership of a
majority of the capital stock of the Company or in the composition of a majority
of the members of the board of directors of the Company.
7. Attorneys' Fees. In the event that Indemnitee institutes any legal
action to enforce his rights under, or to recover damages for breach of this
Agreement, Indemnitee, if he prevails in whole or in part, shall be entitled to
recover from the Company all attorneys' fees and disbursements incurred by him.
8. Severability. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected.
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9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its conflict
of laws rules.
10. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the termination of Indemnitee's
service as a director and/or executive officer of the Company.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and the Company has set its seal as of the date first above written.
Veritas DGC Inc.
By:
------------------------
Xxxxx X. Xxxxxx
Chairman
(Corporate Seal)
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EXHIBIT 1
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
I, _________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement
dated ________________, between Veritas DGC Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting indemnification against expenses (including
attorneys' fees) and, with respect to any action not by or in the right of the
Company, judgments, fines and amounts paid in settlement, all of which have been
actually and reasonably incurred by me in connection with a certain action, suit
or proceeding to which I am a party or am threatened to be made a party by
reason of the fact that I am or was a director and/or executive officer of the
Company.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, I had no reason to believe that my conduct was
unlawful.
4. I am requesting indemnification against the following liabilities
________________________________________________________________________________
-----------------------------------
Subscribed and sworn to before me this ___ day of _____________, 20__.
-------------------------------------------
Notary Public in and for the State of Texas
My Commission expires:
---------------------
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EXHIBIT 0
XXXXXXXXX XX XXXXXXXXXXX
XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
I, _______________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement
dated ________________, between Veritas DGC Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting advancement of certain actual expenses which I have
reasonably incurred or will reasonably incur in defending a civil, criminal,
administrative or investigative action, suit or proceeding.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. The expenses for which advancement is requested are as follows:
___________________________________________________________________________.
-----------------------------------
Subscribed and sworn to before me this ___ day of _____________, 20__.
-------------------------------------------
Notary Public in and for the State of Texas
My Commission expires:
---------------------
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EXHIBIT D
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AGREEMENT AND RELEASE OF ALL CLAIMS
This Agreement, entered into as of the date written by Employee's
signature below, is by and between Veritas DGC Inc. ("Veritas"), a Delaware
corporation, and Xxxxxxx X. Xxxxx ("Employee"). (As used in this Agreement, the
term "Veritas" includes Veritas DGC Inc. and its subsidiaries).
Veritas and Employee agree as follows:
Section 1. On the Effective Date, as defined below, Veritas shall pay
Employee the following amounts:
o a lump sum equal to __________ (This amount represents two
years of Employee's annual base salary);
o a lump sum equal to ___________ [This amount represents the
incentive compensation due Employee, if any, in accordance
with Section 5.c.ii of the Employment Agreement between
Veritas and Employee effective January 24, 2000 (the
"Employment Agreement")] ;
o Employee's regular base salary prorated through the Effective
Date;
o Employee's vacation pay accrued as of the Effective Date; and
o any expense reimbursement owed to Employee under Section 2.g.
of the Employment Agreement.
All of the above amounts shall be REDUCED by applicable taxes and withholding.
Section 2. Employee's termination from employment shall be effective at
the close of business on the Effective Date. The EFFECTIVE DATE as used in this
Agreement means _________.
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Section 3. Employee agrees to release Veritas from certain claims he
has or may have against Veritas as of the date he signs this Agreement. The
claims he is releasing are the following:
o any claims under any bonus or incentive plans except as
otherwise provided in Section 1 of this Agreement;
o any claims arising under the Age Discrimination in Employment
Act of 1967 as amended (29 U.S.C. Section 621, et seq.) (the
Age Discrimination in Employment Act of 1967 prohibits, in
general, discrimination against employees on the basis of
age);
o any claims arising under Title VII of the Civil Rights Act of
1964 as amended (42 U.S.C. Section 2000e, et seq.), or the
Texas Commission on Human Rights Act (Texas Labor
Codess.21.001, et seq.) (both of these statutes, in general,
prohibit discrimination in employment on the basis of race,
religion, national origin or gender);
o any claims arising under the Americans with Disabilities Act
of 1990, as amended (42 U.S.C. Section 12101, et seq.) (the
Americans with Disabilities Act of 1990 prohibits, in general,
discrimination in employment on the basis of an employee's or
applicant's disability);
o any claims arising under Texas Labor Code Sections 451.001, et
seq. for retaliation or discrimination in connection with a
claim for workers' compensation benefits;
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o any claims for breach of contract by Veritas under the
Employment Agreement, wrongful discharge or constructive
discharge; and
o any claims under any other statutes prohibiting discrimination
on the basis of age, sex, national origin, citizenship,
religion, veteran status, or disability arising prior to the
Effective Date.
The release contained in this Section 3 SHALL NOT affect any of the following:
o Employee's rights or benefits under Veritas' 401(k) retirement
savings plan, Veritas' Employee Stock Purchase Plan, or any
pension or retirement plan in which Employee is a participant
on the Effective Date (Employee's rights and benefits shall be
determined by the applicable plan documents);
o Employee's right to elect continued health and/or dental
benefits under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA");
o Employee's rights to exercise any options to purchase Veritas
DGC Inc. common stock in accordance with the terms of the
applicable stock option grant;
o Employee's rights under the Restricted Stock Agreement (as
defined in the Employment Agreement) or any subsequent
agreement granting Employee restricted stock;
o Any other benefit to which Employee may be entitled under any
other health or benefit plan (in accordance with the
applicable plan documents);
o Employee's rights under any workers' compensation statue
(except as otherwise specifically provided in this Section 3);
under the Xxxxx Act, 46 U.S.C. Appx.
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Section 688, as amended; general maritime law or similar laws;
and any other right Employee may have with respect to personal
injury;
o Employee's rights with respect to any claims for tortious
action or inaction of any sort, including but not limited to,
negligence, fraud, libel or slander, except as specifically
provided in this Section 3; or
o Any rights to indemnity to which Employee, as a former
director, officer or employee of Veritas, may be entitled
under the Certificate of Incorporation or By-laws of Employer,
any policy of officers' and directors' liability insurance or
any contract with Veritas.
Section 4. Veritas and Employee agree that this Agreement is a binding
contract. The purpose of the Agreement is to compromise certain doubtful or
disputed claims, avoid litigation, and buy peace with respect to those claims.
Employee agrees that although Veritas is making payment to Employee in exchange
for a release of claims, Veritas does not admit any wrongdoing of any kind.
Section 5. Employee agrees to assist Veritas in defending any legal
proceedings against Veritas arising out of matters which occurred prior to the
Effective Date and Veritas agrees to reimburse Employee for his time and expense
or costs he may incur in that regard.
Section 6. Veritas agrees to release Employee from claims it has
against Employee as of the date of this Agreement in connection with his
Employment Agreement (other than any claims arising under Sections 3 and 6(a) of
such Agreement), or any other claim it may have against Employee in connection
with his employment by Veritas or his position with Veritas whether as a
director, officer, employee or agent.
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Section 7. This Agreement has been delivered to Employee on
_____________. Employee shall have twenty-one (21) calendar days from
___________ or until the close of business on ___________ to decide whether to
sign the Agreement and be bound by its terms. In the event Employee has not
signed and returned this Agreement to Veritas on or before that date, this
Agreement shall become null and void. In addition, the parties agree that even
after signing this Agreement, Employee shall have the right to revoke or cancel
it within seven (7) calendar days after signing it. In the event Employee
revokes his acceptance of this Agreement, this Agreement shall become null and
void.
Section 8. Employee acknowledges that he has read this Agreement. He
understands that, except for the exceptions enumerated in Section 3 above, this
Agreement will have the effect of waiving any contractual claim under his
Employment Agreement he may pursue against Veritas. This waiver also includes
claims for wrongful discharge, breach of the Employment Agreement, and statutory
claims (as set forth in Section 3 hereof) for discrimination on the basis of
age, race, sex, national origin, citizenship, religion, veteran status, or
disability or any other similar claims arising prior to the Effective Date.
Section 9. Employee acknowledges that he makes this Release knowingly
and voluntarily.
Section 10. This Agreement constitutes the entire understanding between
Veritas and Employee with respect to the subject matter hereof.
Section 11. This Agreement shall benefit and be binding upon Veritas
and its successors and assigns and Employee and his successors and legal
representatives. Employee shall not assign or attempt to assign any of his
rights under this Agreement.
Section 12. If a court determines that any provision of this Agreement
is invalid, the
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other provisions shall remain in effect.
Section 13. This Agreement shall be governed by, construed under, and
enforced in accordance with the laws of the State of Texas, not including,
however, its conflicts of law rules that might otherwise refer to the law of
another forum or jurisdiction.
THIS AGREEMENT IS SUBJECT TO ARBITRATION IN
ACCORDANCE WITH THE FOLLOWING SECTION
Section 14. Veritas and Employee agree to submit to final and binding
arbitration any and all disputes or disagreements concerning the interpretation
or application of this Agreement. Any such dispute or disagreement shall be
resolved by arbitration in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association (the "AAA
Rules"). Arbitration shall take place in Houston, Texas, unless the parties
mutually agree to a different location. Within 30 calendar days of the
initiation of arbitration hereunder, each party shall designate an arbitrator.
The appointed arbitrators shall then appoint a third arbitrator. Employee and
Veritas agree that the decision of the arbitrators shall be final and binding on
both parties. Any court having jurisdiction may enter a judgment upon the award
rendered by the arbitrators. In the event the arbitration is decided in whole or
in part in favor of Employee, Veritas shall reimburse Employee for his
reasonable costs and expenses of arbitration, including reasonable attorneys'
fees. Regardless of the outcome of the arbitration, Veritas shall pay all fees
and expenses of the arbitrators and all of Veritas' costs of arbitration.
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[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
VERITAS:
VERITAS DGC INC.
and subsidiaries
By:
----------------------------
NOTICE TO EMPLOYEE
BY SIGNING THIS DOCUMENT, YOU MAY BE GIVING UP IMPORTANT LEGAL RIGHTS. YOU ARE
ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING AND RETURNING THIS DOCUMENT
TO VERITAS.
EMPLOYEE:
-------------------------------
Xxxxxxx X. Xxxxx
Date:
--------------------------
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