EXHIBIT No. 10(00)
Employment Agreement
THIS AGREEMENT is made as of the 27th day of August, 1998, by and between
ICF Xxxxxx International, Inc., a Delaware corporation (the "Corporation"), and
Xxxxx X. Xxxxx, presently a resident of Boise, Idaho (the "Executive").
WHEREAS, the Corporation desires to employ the Executive, and the Executive
desires to become an employee of the Corporation, on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, the Corporation and the
Executive agree as follows:
1. Employment Duties.
(a) Employment and Employment Period. The Corporation shall employ
the Executive to serve as President and Chief Operating Officer of ICF Xxxxxx
International, Inc., as set forth below for a continuous period of one (1) year
commencing August 5, 1998 (the "Employment Period"). The Employment Period may
be extended by mutual agreement of the parties.
(b) Offices, Duties and Responsibilities. As soon as the Executive
commences employment with the Corporation, he shall be elected President and
Chief Operating Officer of ICF Xxxxxx International, Inc. The Executive shall
report to the Chairman and Chief Executive Officer of the Corporation and shall
be a member of all senior management groups of the Corporation. The Executive
will have full authority over all line operations including business
development, marketing, sales organizational structure and strategy. The
Executive's offices shall be located at the Corporation's headquarters building
in Fairfax, Virginia.
(c) Devotion to Interests of the Corporation. Except as expressly
authorized by the Corporation's Board of Directors, until the effective date of
notice of termination of this Agreement by either the Executive or the
Corporation, with or without cause, the Executive shall render his business
services solely in the performance of his duties hereunder. The Executive shall
use his best efforts to promote the interests and welfare of the Corporation.
(d) Service as a Director of the Corporation. Executive is currently
serving as a director of the Corporation with a term ending at the Annual
Meeting of Shareholders in the year 2001 and until his successor is duly
elected. As soon as Executive commences employment with the Corporation, he
shall no longer be compensated as a non-employee director for his continuing
service as a director of the Corporation.
2. Compensation and Fringe Benefits.
(a) Base Compensation. The Corporation shall pay the Executive a base
salary at the rate of $375,000 per year through August 4, 1999, in installments
in accordance with the Corporation's regular practice for compensating executive
personnel. The amount of the Executive's base compensation on and after August
4, 1999 shall be subject to adjustment as recommended by the Compensation
Committee of the Corporation's Board of Directors ("Compensation Committee"),
but any adjustment shall not be less than the rate of $375,000 per year.
(b) Bonus Compensation. The Executive shall be paid a signing bonus
of $100,000, which shall be deemed earned and vested, $50,000 of which will be
paid upon commencement of employment (payable with Executive's first paycheck)
for calendar year 1998 and the other $50,000 of which will be paid on January 1,
1999. In addition, Executive shall be provided a bonus opportunity of not less
than fifty percent (50%) of the Executive's base salary based on the performance
of the Corporation for the period of August 5, 1998 to August 4,
1999. The terms of such bonus opportunity shall be set by the Compensation
Committee within sixty (60) days after the Executive commences employment with
the Corporation.
(c) Fringe Benefits. The Executive shall be entitled to such fringe
benefits during the term of his employment as are generally made available by
the Corporation to executive personnel. Such benefits shall include
participation in the Corporation's defined contribution retirement plan, 401 (k)
Plan, and health, term life and disability insurance programs. The Executive
shall also be reimbursed for reasonable expenses incurred in connection with
travel and entertainment related to the Corporation's business and affairs and
will be paid by the Corporation in a manner consistent with past practice and as
amended by any subsequent changes of Corporate Policy.
3. Stock Options. Within thirty (30) days after the Executive commences
employment with the Corporation, the Corporation shall grant to the Executive
incentive stock options and non-qualified options under the Company's Stock
Incentive Plan to purchase an aggregate of 150,000 shares of the Company's
common stock, par value $0.01 per share ("Common Stock"), at a purchase price
equal to the average of the closing prices of the Common Stock on the New York
Stock Exchange on each of the twenty (20) days ending the day immediately
preceding the date of such grant. Such options shall consist of non-qualified
options only to the extent required under the Corporation's Stock Incentive
Plan, or as required by law. In addition to the customary terms, such Options
will be subject to the following provisions:
(a) Option Term. The options expire three (3) years from the date of
grant.
(b) Vesting. Fifty percent (50%) of the options shall vest on
February 5, 1999, and fifty percent (50%) shall vest on August 4, 1999.
(c) Exercise. Subject to applicable securities laws and regulations,
all vested options are exercisable at any time prior to expiration of their
exercise period.
4. Payment of Certain Expenses.
(a) Payment of Temporary Living Expenses. In connection with the
Executive's temporary stay in the Washington, DC area for a period of up to one
(1) year and pending the relocation of his household from the Boise, Idaho area
to the Washington, DC area, he will be reimbursed for the following costs and
expenses, provided, in each case, that such costs are reasonable and
documentation is provided:
(i) The cost of travel (up to two [2] round trips per month)
between Boise, Idaho and the Washington, DC area incurred by the Executive or
Xxxxxxxxx Xxxxx; and
(ii) Furnished, short-term housing expenses for the Executive
in the Washington, DC area; and
(iii) All cost of moving the Executive's family and household
goods from the Boise, Idaho area to the Washington, DC area; and
(iv) The costs or otherwise make arrangements for an
appropriate standard rental car provided in Fairfax, Virginia.
(b) Payment of Other Expenses.
(i) The Corporation shall pay Executive the costs of legal
expenses related to the negotiation and execution of this Agreement; and
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(c) Gross-up of Expenses. The Temporary Living Expenses reimbursements
set forth in subsection (a) above shall, to the extent appropriate, be "grossed
up." For this purpose, "grossed-up" means in case of a reimbursed expense that
is taxable to the Executive and is not deductible for Federal income tax
purposes, that the Executive will be paid an amount which, after Federal income
taxes on such amount, will equal the amount of the non-deductible reimbursable
expense.
5. Trade Secrets. The Executive shall not use or disclose any of the
Corporation's trade secrets or other confidential information. The term "trade
secrets or other confidential information" includes, by way of example, matters
of a technical nature, such as scientific, trade and engineering secrets, "know-
how", formulae, secret processes or machines, inventions, computer programs
(including documentation of such programs) and research projects, and matters of
a business nature, such as proprietary information about costs, profits,
markets, sales, lists of customers, and other information of a similar nature to
the extent not available to the public, and plans for future development. After
termination of this Agreement, the Executive shall not use or disclose trade
secrets or other confidential information unless such information becomes a part
of the public domain other than through a breach of this Agreement or is
disclosed to the Executive by a third party who is entitled to receive and
disclose such information.
6. Return of Documents and Property. Upon the effective date of notice of
the Executive's or the Corporation's election to terminate this Agreement, or at
any time upon the request of the Corporation, the Executive (or his heirs or
personal representatives) shall deliver to the Corporation (a) all documents and
materials containing trade secrets or other confidential information relating to
the Corporation's business and affairs, and (b) all documents, materials and
other property belonging to the Corporation, which in either case are in the
possession or under the control of the Executive (or his heirs or personal
representatives).
7. Discoveries and Works. All discoveries and works made or conceived by
the Executive during his employment by the Corporation, jointly or with others,
that relate to the Corporation's activities shall be owned by the Corporation.
The term "discoveries and works" includes, by way of example, inventions,
computer programs (including documentation of such programs), technical
improvements, processes, drawings and works of authorship. The Executive shall
(a) promptly notify, make full disclosure to, and execute and deliver any
documents requested by, the Corporation to evidence or better assure title to
such discoveries and works in the Corporation, (b) assist the Corporation in
obtaining or maintaining for itself at its own expense United States and foreign
patents, copyrights, trade secret protection or other protection of any and all
such discoveries and works, and (c) promptly execute, whether during Executive's
employment by the Corporation or thereafter, all applications or other
endorsements necessary or appropriate to maintain patents and other rights for
the Corporation and to protect its title thereto. Any discoveries and works
which, within six months after the termination of the Executive's employment by
the Corporation, are made, disclosed, reduced to a tangible or written form or
description, or are reduced to practice by the Executive and which pertain to
the business carried on or products or services being sold or developed by the
Corporation at the time of such termination shall, as between the Executive and
the Corporation, be presumed to have been made during the Executive's employment
by the Corporation. Set forth on Schedule 7 attached hereto is a list of
inventions, patented or unpatented, including a brief description thereof, which
are owned by the Executive, which the Executive conceived or made prior to
Executive's employment by the Corporation and which are excluded from this
Agreement.
8. Termination.
(a) Either the Corporation or the Executive can terminate this
Agreement, with or without "cause," upon thirty (30) days' prior written notice.
(b) In the event the Corporation elects to terminate this Agreement
without "cause", or the Executive elects to terminate this Agreement for "good
reason", subject to the provisions of Section 9, the
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Corporation shall pay to the Executive, in addition to any amounts paid or
payable under other provisions of this Agreement or any other agreements between
the Corporation and the Executive, a severance payment equal to the balance of
the base compensation for the Employment Period. Such severance will be paid in
cash (with deduction of such amount as may be required to be withheld under
applicable law and regulations) within ten (10) working days of termination. In
such event, all unvested options will vest in full on the effective date of
termination and all options may be exercised any time within the term set forth
in Section3(a). All other compensation and benefits provided for in this
Agreement shall cease upon such termination to the extent allowable by law.
(c) For purposes of this Agreement, the Executive shall be considered
to have "good reason" to terminate this Agreement if (i) without his express
written consent, the liabilities of the Executive are substantially reduced
(except in connection with the termination of his employment voluntarily by the
Executive, by the Company for "cause", or under the circumstances described in
Section 9 hereof), or (ii) a majority of the Board of Directors of the Company
is not comprised of "Continuing Directors," where a "Continuing Director" of the
Company as of any date means a member of the Board of Directors of the Company
who (x) was a member of the Board of Directors of the Company on the effective
date of this Agreement or (y) was nominated for election or elected to the Board
of Directors of the Company with the a vote of at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election.
(d) In the event the Corporation terminates this Agreement for "cause"
or the Executive terminates this Agreement without "good reason", the
Executive's rights hereunder shall cease as of the effective date of such
termination, except as otherwise provided herein. In such event, all unvested
options shall be terminated and all vested options may be exercised anytime
within the term set forth in Section 3(a). For purposes of this Agreement, the
Corporation shall have "cause" to terminate the Executive's employment
hereunder upon (i) the continued, wilful and deliberate failure of the
Executive to perform his duties, in a manner substantially consistent with the
manner prescribed by the Board of Directors or the Chief Executive Officer of
the Corporation (other than any such failure resulting from his incapacity due
to physical or mental illness), (ii) the engaging by the Executive in
misconduct materially and demonstrably injurious to the Corporation, (iii) the
conviction of the Executive of commission of a felony, whether or not such
felony was committed in connection with the Corporation's business, or (iv) the
circumstances described in Section 9 hereof, in which case the provisions of
Section 9 shall govern the rights and obligations of the parties.
9. Disability; Death.
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform his duties by reason of
disability or impairment of health for at least six consecutive calendar
months, the Corporation shall have the right to terminate this Agreement by
giving written notice to the Executive to that effect, but only if at the time
such notice is given such disability or impairment is still continuing. After
giving such notice, the Employment Period shall terminate with the payment of
the Executive's base compensation for the month in which notice is given. All
other compensation and benefits provided for in this Agreement shall cease upon
such termination to the extent allowable by law.
(b) In the event of a dispute as to whether the Executive is disabled
within the meaning of this Section 9, either party may from time to time
request a medical examination of the Executive by a doctor appointed by the
Chief of Staff of a hospital selected by mutual agreement of the parties, or as
the parties may otherwise agree, and the written medical opinion of such doctor
shall be conclusive and binding upon the parties as to whether the Executive
has become disabled and the date when such disability arose. The cost of any
such medical examinations shall be borne by the Corporation.
(c) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, the Corporation shall pay to the Executive's
estate his base compensation through the end of the month in
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which the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and the Corporation shall have no further
obligations hereunder.
(d) Nothing contained in this Section 9 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of the Corporation which may be adopted by the Board of Directors
of the Corporation.
10. Non-Competition.
(a) Except as provided in paragraph (d) below, the Executive agrees
that for a period commencing as of the date of employment of the Executive by
the Corporation and running through the earlier of (i) the end of the
Employment Period if the Executive remains employed by the Corporation for the
entire Employment Period or (ii) one year following termination of the
Executive's employment by the Corporation for any reason, whether by action of
the Executive or the Corporation (the "Non-Competition Period"), the Executive
will not, except as otherwise provided herein, engage or participate, directly
or indirectly, as principal, agent, employee, employer, consultant,
stockholder, partner or in any other individual capacity whatsoever, in the
conduct of, planning for, or management of, or own any stock or any other
equity investment in or debt of, any business which is directly in competition
with any business conducted by the Corporation.
For the purpose of this Agreement, a business shall be considered to
be directly in competition with the business of the Corporation only if such
business is engaged in providing services (i) similar to (x) any service
currently provided by the Corporation or provided by the Corporation during the
Employment Period; (y) any service in the ordinary course during the Non-
Competition Period which evolves from or results from enhancements to the
services provided by the Corporation as of the Effective Date hereof or during
the Non-Competition period; or (z) any future service of the Corporation as to
which the Executive materially and substantially participated in the design or
enhancement, and (ii) to customers and clients of the type served by the
Corporation during the Non-Competition Period.
(b) Non-Solicitation of Employees. During the Non-Competition Period,
the Executive will not (for Executive's own benefit or for the benefit of any
person or entity other than the Corporation) solicit, or assist any person or
entity other than the Corporation to solicit, any officer, director, executive
or employee of the Corporation or its affiliates to leave his or her employment.
(c) Reasonableness. Executive acknowledges that (i) the markets
served by the Corporation are national and international and are not dependent
on the geographic location of executive personnel or the businesses by which
they are employed, (ii) the length of the Non-Competition Period is related to
the length of the Employment Period and the Corporation's agreement to provide
severance benefits as set forth in Section 8(b); and (iii) the above covenants
are manifestly reasonable on their face, and the parties expressly agree that
such restrictions have been designed to be reasonable and no greater than is
required for the protection of the Corporation.
(d) Investments. Nothing in this Agreement shall be deemed to
prohibit Executive from owning equity or debt investments in any corporation,
partnership or other entity which is competitive with the Corporation, provided
that such investments (i) are passive investments and constitute five percent
(5%) or less of the outstanding equity securities of such an entity the equity
securities of which are traded on a national securities exchange of other public
market, or (ii) are approved by the Corporation.
11. Enforcement. The Executive agrees that the Corporation's remedies
at law for any breach or threat of breach by him of the provisions of Sections
5, 6, 7, and 10 hereof will be inadequate, and that the Corporation shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of Sections 5, 6,
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7, and 10 hereof and to enforce specifically the terms and provisions thereof,
in addition to any other remedy to which the Corporation may be entitled at law
or equity.
12. Severability. Should any provision of this Agreement be determined
to be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Assignment. The Executive's rights and obligations under this
Agreement shall not be assignable by the Executive. The Corporation's rights
and obligations under this Agreement shall not be assignable by the Corporation
except as incident to the transfer, by merger or otherwise, of all or
substantially all of the business of the Corporation. In the event of any such
assignment by the Corporation, all rights of the Corporation hereunder shall
inure to the benefit of the assignee.
14. Notices. Any notice required or permitted under this Agreement shall
be deemed to have been effectively made or given if in writing and personally
delivered or mailed properly addressed in a sealed envelope, postage prepaid by
certified or registered mail. Unless otherwise changed by notice, notice shall
be properly addressed to Executive if addressed to:
Xxxxx X. Xxxxx Xxxxx Xxxxx
0000 Xxxxx Xxxxx Xxxxx c/o ICF Xxxxxx International, Inc,
Xxxxx, Xxxxx 00000 0000 Xxx Xxxxxxx
Xxxxxxx, XX 00000-0000
and properly addressed to the Corporation if addressed to:
ICF Xxxxxx International, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
15. Miscellaneous. This Agreement constitutes the entire agreement, and
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. The validity, interpretation,
performance and enforcement of this Agreement shall be governed by the laws of
the Commonwealth of Virginia. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
/s/ ICF XXXXXX INTERNATIONAL
XXXXX X. XXXXX, Executive
By _________/s/_____________
Xxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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