EXHIBIT 10.15
VERIDIAN CORPORATION
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
THIS EMPLOYMENT AND CONFIDENTIALITY AGREEMENT ("Agreement") is entered
into effective as of the 1st day of January 2001 by and between VERIDIAN
CORPORATION, a Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX
("Executive"). The Company and Executive do hereby agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined shall
have the meanings set forth for such terms in Exhibit A attached hereto and
incorporated herein for all purposes. A defined term has its defined meaning
throughout this Agreement and in each exhibit, attachment and schedule attached
to the Agreement regardless of whether it appears before or after the place
where it is defined.
SECTION 2. EMPLOYMENT; TERM.
2.1 Employment. The Company (or an Affiliate of the Company) shall
employ Executive during the Period of Employment in accordance with the terms of
this Agreement.
2.2 Initial Term. The "Initial Term" begins on the Effective Date
and ends on the last day of the sixth calendar month thereafter.
2.3 Renewals. At the expiration of the Initial Term and on each
semi-annual anniversary of such date thereafter (such date and each annual
anniversary thereafter being referred to herein as a "Renewal Date"), this
Agreement shall be automatically renewed for a term of six (6) months from such
Renewal Date (a "Renewal Term"), unless, not less than sixty (60) days prior to
such Renewal Date, written notice is given by either the Company or Executive
that this Agreement shall not be renewed.
SECTION 3. EXECUTIVE'S DUTIES AND OBLIGATIONS.
3.1 Duties. During the Period of Employment, Executive agrees to (i)
serve as Senior Vice President & Division President-Information Solutions of the
Company and to perform such duties and exercise such power and authority as are
normal and customary to such position and that are consistent with the
responsibilities set forth in the bylaws of the Company and (ii) hold such other
corporate offices to which the Board of Directors may appoint him and perform
such other duties not materially inconsistent with such position as the Board of
Directors may assign to Executive from time to time.
3.2 Devotion of Time. Executive shall devote substantially all of
Executive's business time and attention and dedicate Executive's reasonable best
efforts toward the fulfillment and
execution, including performance criteria, of Executive's duties pursuant to
this Agreement; provided, however, Executive may on Executive's own time (i)
engage in such charitable and civic matters and (ii) manage his personal affairs
and investments, so long as they do not, in the good faith determination of the
Board of Directors, interfere in any material respect with the performance of
his duties hereunder.
SECTION 4. COMPENSATION
4.1 Base Salary. For the services to be rendered by Executive
hereunder during the Period of Employment, the Company shall pay Executive a
base salary ("Salary") in the amount stated in Exhibit B, such Salary to be
payable in bi-weekly installments. From time to time, the Company may conduct a
review of Executive's Salary, giving attention to all pertinent factors
including, without limitation, the performance and financial condition of the
Company and the performance of Executive; and the Company shall, following such
review, determine any adjustments in Executive's Salary.
4.2 Incentive Compensation. Provided that Executive has remained
continuously employed by the Company or an Affiliate of the Company from the
date hereof through the end of each fiscal year of the Company during the Period
of Employment, Executive shall be eligible to receive the performance-based
incentive compensation initially specified in Exhibit B and, thereafter, as
established by the Company at the same time and in the same manner as the
Company shall establish performance objectives for its senior executives, at all
times to be administered by the Company using its sound business discretion.
SECTION 5. STOCK PURCHASE AND STOCK OPTIONS
The Company and Executive have previously executed: (a) a Stock Purchase
Agreement providing for the purchase by Executive of shares of Class B common
stock of the Company and a loan from the Company for that purpose on the terms
and conditions specified therein; and (b) a Stock Option Award Agreement
providing for the grant to Executive of options to acquire shares of Class B
common stock of the Company on the terms and conditions specified therein.
Executive expressly acknowledges that these are multi-year stock purchase and
stock option arrangements, not to be reproduced on an annual basis. Those
Agreements are incorporated by reference and made a part hereof.
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SECTION 6. EMPLOYEE BENEFIT PLANS
Executive shall, on terms no less favorable to Executive than any other
senior executive of the Company, have the right to become a participant or
beneficiary under or pursuant to any and all Employment Benefit Plans now in
force or later adopted for which Executive is eligible under the respective
provisions thereof. Nothing in this Agreement shall require the Company or any
Affiliate of the Company to adopt any Employee Benefit Plan and nothing in this
Agreement shall prevent the Company or any Affiliate of the Company from
amending, modifying or terminating any or all Employee Benefit Plans now or
hereafter in force. Executive's rights under any Employee Benefit Plans now in
force or later adopted shall be governed solely by its terms.
SECTION 7. NON-COMPETITION AND CONFIDENTIALITY
As additional consideration for the employment of Executive by the
Company and in order to ensure the preservation and protection of Company good
will, trade secrets, and confidential information entrusted to Executive,
Executive agrees, during the Period of Employment and for a period of six (6)
months after Executive's voluntary termination of employment from the Company or
termination for Cause ("Six-Month Term"), to forbear from engaging in any of the
activities specifically enumerated in subparagraphs 7.1 through 7.6 below, ,
without first obtaining the written consent of Company. More specifically:
7.1 Executive agrees to forbear during the Six-Month Term from
serving as an officer or director of any Competing Enterprise,
except serving as a director of a corporation with a class of
equity securities registered under Section 12(b) or Section
12(g) of the Securities Exchange Act of 1934;
7.2 Executive agrees to forbear during the Six-Month Term from
serving, as an individual or through an Affiliate of Executive,
as a partner in a partnership or joint venture of any kind with
any Competing Enterprise;
7.3 Executive agrees to forbear during the Six-Month Term from
owning, directly or indirectly, any equity or beneficial
interest in any Competing Enterprise, except ownership of less
than five percent (5%) of the outstanding voting interests of an
Entity with a class of equity interests registered under Section
12(b) or Section 12(g) of the Securities Exchange Act of 1934;
7.4 To the extent that Executive's duties and assignments with the
Company or any Affiliate of the Company involved confidential
applied research, design, or development of any product,
technology, software, process, or
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service of the Company or any Affiliate of the Company,
Executive agrees to forbear from any employment, assistance,
consultation or other active participation with any Competing
Enterprise during the Six-Month Term that would involve any
applied research, design, or development of any similar or
competing product, technology, software, process, or service for
a Competing Enterprise;
7.5 To the extent that Executive's duties and assignments with the
Company or any Affiliate of the Company involved confidential
strategic planning, business partnering, business development,
marketing, or bid/proposal activities, Executive agrees to
forbear from any employment, assistance, consultation or other
active participation with any Competing Enterprise during the
Six-Month Term that would involve or directly or indirectly
assist (including "behind the scenes") any solicitation,
business development, marketing, or bid/proposal activities with
respect to any present or foreseeable prospective customer or
business partner of the Company or any Affiliate of the Company
as of the date of Executive's termination of employment; and
7.6 Executive agrees to forbear, during the Six-Month Term and for
an additional six (6) months thereafter, from engaging in, or
directly or indirectly assisting any Competing Enterprise in,
any activity to hire away any then-current employee, officer, or
agent of the Company or any Affiliate of the Company.
7.7 Executive further agrees that: (i) the aforementioned
restrictions are reasonable in both scope and duration, in view
of the nature and geographic reach of the business of the
Company and its Affiliates, the state of the technical and
commercial development of the products and services of the
Company and its Affiliates, the nature of the work that
Executive performs for the Company or any Affiliate of the
Company, Executive's knowledge of the business, of the Company
and its Affiliates and the Company's interests in preserving and
protecting its goodwill, trade secrets, and confidential
information; (ii) if any provision of this Section 7 shall be
held or deemed to be invalid, inoperative, or unenforceable for
any reason, the remaining provisions of this Section 7 shall be
reformed and construed as if such invalid, inoperative, or
unenforceable provision had never been contained herein, and
such invalid, inoperative, or unenforceable provision shall be
reformed so that it would be valid, operative, and enforceable
to the maximum extent permitted; (iii) money damages would not
be a sufficient remedy for any
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breach of this Section 7, and the Company shall be entitled to
enforce the provisions of this Section 7 by specific performance
and injunctive relief as remedies for such breach or any
threatened breach and any such remedies shall not be deemed the
exclusive remedies for a breach of this Section 7 but shall be
in addition to all other remedies available at law or in equity
against Executive and any other party involved in such breach;
and (iv) the obligations of Executive under this Section 7 are
in addition to all other obligations of Executive, by contract
and under law, to protect and refrain from using or disclosing
to others the trade secrets and confidential information of the
Company and its Affiliates. Executive waives any requirement for
the Company to post a bond or provide any other security in
connection with its pursuit of any remedies hereunder.
SECTION 8. INFORMATION DISCLOSED REMAINS PROPERTY OF THE COMPANY
All ideas, concepts, information, and written material disclosed to
Executive by the Company or any Affiliate of the Company, or acquired from a
customer or prospective customer of the Company or any Affiliate of the Company,
are and shall remain the sole and exclusive property and proprietary information
of the Company, such Affiliate of the Company or such customers, and are
disclosed in confidence by the Company or such Affiliate of the Company or
permitted to be acquired from such customers in reliance on Executive's
agreement to maintain them in confidence and not to use or disclose them to any
other Person except in furtherance of the business of the Company or any
Affiliate of the Company. The ideas, concepts, information, and written material
covered by this Agreement do not include such ideas, concepts, information or
written material which (i) becomes or has been generally available to the public
other than as a result of a disclosure by Executive or any other Person bound by
a confidentiality agreement with the Company or any Affiliate of the Company,
(ii) was available to Executive on a nonconfidential basis prior to its
disclosure to Executive by the Company or any Affiliate of the Company, or (iii)
becomes available to Executive on a nonconfidential basis from a source other
than the Company or any Affiliate of the Company; provided, however, that such
source is not bound by a confidentiality agreement with the Company or any
Affiliate of the Company.
SECTION 9. RETURN OF MATERIAL
Executive agrees that, at any time upon the request of the Company and
in any event upon termination of employment, Executive shall turn over to the
Company, and not retain any copies of, all documents, disks or other computer
media, or other material in his possession or under his control that (i) may
contain or be derived from ideas, concepts, inventions, discoveries,
improvements, creations, or trade secrets and other proprietary and confidential
information as set forth in Section 7 and Section 8 above, or (ii) are connected
with or derived from Executive's services to the Company.
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SECTION 10. ENFORCEMENT OF COVENANTS.
It is expressly understood and agreed by Executive that the covenants
contained in Section 7, Section 8 and Section 9 of this Agreement represent a
reasonable and necessary protection of the legitimate interests of the Company
and that Executive's failure to observe and comply with his covenants and
agreements therein may cause irreparable harm to the Company. It is expressly
understood and agreed by Executive that it is and will continue to be difficult
to ascertain the nature, scope and extent of the harm resulting from breach of
these covenants and that a remedy at law for such breach by Executive will be
inadequate. Accordingly, it is the intention of the parties that, in addition to
any other rights and remedies which the Company may have in the event of any
breach of this Agreement, the Company shall be entitled, and is authorized by
Executive, to demand and obtain specific performance, including without
limitation all appropriate injunctive and other equitable relief against
Executive in order to enforce against Executive, or to prevent any breach or any
threatened breach by Executive of the covenants and agreements contained in this
Agreement. Executive agrees to pay all costs and reasonable attorneys' fees
incurred by the Company to enforce its rights under this Agreement, if and to
the extent the Company prevails.
SECTION 11. INDEMNIFICATION
With respect to his services during the Period of Employment as a
director, officer, employee, or agent of the Company or any Affiliate of the
Company, the Company shall indemnify Executive, whether during or after the
Period of Employment, to the fullest extent authorized under the Delaware
General Corporation Law. If requested by Executive and subject to receipt by the
Company of an undertaking by or on behalf of Executive to repay such expenses if
it is ultimately determined that Executive is not entitled to be indemnified by
the Company as authorized in this Section, the Company shall advance to
Executive all reasonable expenses incurred by Executive in connection with any
claim for indemnification hereunder to the fullest extent permitted by law (or,
if applicable, reimburse Executive for any and all reasonable expenses incurred
by Executive and previously paid by Executive) within ten (10) business days
after such request. The Company shall be obligated from time to time at the
request of Executive to make or pay such advancement or reimbursement of
expenses in advance of the final disposition or conclusion of any action, suit
or proceeding. Notwithstanding anything to the contrary in this Agreement, the
Company's obligations under this Section shall never cease or terminate.
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SECTION 12. TERMINATION OF EMPLOYMENT
12.1 Termination by Company for Cause. The Company shall at all times
have the right to terminate this Agreement for Cause effective immediately and
without notice to Executive. The Period of Employment shall end upon such
termination.
12.2 Total Disability of Executive. The Company, by written notice to
Executive, shall at all times have the right to terminate this Agreement if
Executive shall experience a Total Disability. The Period of Employment shall
end on the date the Total Disability is deemed to occur or on such later date as
the Company, in its sole discretion, shall determine.
12.3 Death of Executive. This Agreement shall terminate automatically
upon the date of the death of Executive. The Period of Employment shall end upon
such termination.
12.4 No Renewal. This Agreement shall terminate at the end of the
Initial Term or any applicable Renewal Term if either Company or Executive shall
notify the other as provided in Section 2.3 that this Agreement shall not be
renewed.
12.5 Termination by Company Without Cause. The Company may, upon
thirty (30) days prior written notice to Executive, terminate this Agreement
without Cause.
12.6 Termination by Executive for Good Reason. Executive may, upon
thirty (30) days prior written notice to the Company, terminate this Agreement
with Good Reason.
12.7 Payments Upon Termination.
12.7.1 If this Agreement is terminated by the Company pursuant
to Section 12.1 or by Executive pursuant to Section 12.4, then the
Company shall have no obligation to pay to Executive the Salary or any
other compensation or benefits provided under this Agreement for any
period after the date of such termination; including any bonus for the
year in which such termination occurs; provided, however, that the
Company shall pay to Executive, within thirty (30) days of the date of
such termination, all Salary and other compensation and vested benefits
accrued but unpaid as of the date of such termination.
12.7.2 If this Agreement is terminated pursuant to Section 12.2
or Section 12.3, then the Company shall have no obligation to pay to
Executive the Salary or any other compensation or benefits provided
under this Agreement for any period after the date of such termination;
provided, however, that the Company shall pay to Executive, within
thirty (30) days of the date of such termination, (a) all Salary and
other compensation and vested benefits accrued but unpaid as of the date
of such termination; and (b) an allocable
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portion of any incentive compensation that the Company, using its
reasonable business discretion, determines would have been earned had
Executive remained employed through the end of the year in which such
termination occurs.
12.7.3 If this Agreement is terminated by the Company pursuant
to Section 12.4 or pursuant to Section 12.5, then, in addition to the
Salary earned by Executive prior to the date of such termination, the
Company shall (a) pay Executive, within thirty (30) days of the date of
such termination, all Salary and other compensation and vested benefits
accrued but unpaid as of the date of termination, and (b) make severance
payments in amounts and forms determined in accordance with the
Company's severance policy for senior corporate executives then in
effect, if any.
12.7.4 If this Agreement is terminated pursuant to Section 12.6,
then, in addition to the Salary earned by Executive prior to the date of
such termination, the Company shall pay Executive, within thirty (30)
days of the date of such termination, (a) all Salary and other
compensation and vested benefits accrued but unpaid as of the date of
termination, (b) an allocable portion of any incentive compensation that
the Company, using its reasonable business discretion, determines would
have been earned had Executive remained employed through the end of the
year in which such termination occurs, plus one-third of one full year,
determined pro rata based on target bonus, and (c) a lump-sum severance
payment in an amount equal to Executive's annual Salary then in effect.
In addition: (d) the Company shall provide continuation of medical
benefits, or a cash equivalent, for a period of one year or until
Executive obtains new employment, whichever is the shorter period, (e)
the Company shall pay for outplacement services for Executive for a
period of one year following the date of such termination or until
Executive obtains a comparable position, whichever occurs first, and (f)
on the date of such termination, all rights of the Company under the
Stock Purchase Agreement to repurchase ownership interests of Executive
in the Company at less than Fair Market Value (as such terms is defined
in the Stock Purchase Agreement) shall expire and all unvested options
to acquire stock of the Company then outstanding and held by Executive
shall fully vest.
12.8 Obligations Surviving Termination. Upon the termination of this
Agreement, all of the Company's obligations under this Agreement shall cease,
except for (i) the obligation to pay the amounts provided in Section 12.7, (ii)
any obligations under any Employee Benefit Plans that by their terms are payable
after the date of such termination and (iii) the obligation to provide
indemnification under Section 11. Upon the termination of this Agreement, all of
Executive's obligations under this Agreement shall cease except for the
obligations set forth in Section 7, Section 8, Section 9 and Section 10, which
shall survive. The termination of this Agreement shall not increase or decrease
Executive's rights under any Employee Benefit Plan
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SECTION 13. GOVERNING LAW; CONSENT TO JURISDICTION
THE VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE, AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF VIRGINIA WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. EACH PARTY HERETO
CONSENTS TO AND HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
VIRGINIA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE
NORTHERN DISTRICT OF VIRGINIA IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT IS NOT OTHERWISE ARBITRATED
ACCORDING TO SECTION 14 OF THIS AGREEMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM; PROVIDED, HOWEVER, THAT NOTHING
HEREIN SHALL PRECLUDE THE COMPANY FROM BRINGING ANY ACTION OR PROCEEDING IN ANY
OTHER FORUM FOR THE PURPOSE OF ENFORCING THE PROVISIONS OF SECTION 7, SECTION 8,
SECTION 9 AND SECTION 10.
SECTION 14. ARBITRATION
Except with respect to the enforcement of rights provided for in Section
7, Section 8, Section 9 or Section 10, any controversy or claim arising out of,
or relating to this Agreement, or the breach thereof, shall be settled by
arbitration to be held in Northern Virginia in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof. The Company agrees to advance
and bear all costs and reasonable attorneys' fees incurred by Executive in
connection with any claim or controversy arising out of, or relating to, Section
12 of this Agreement.
SECTION 15. ASSIGNMENT; MERGER OR REORGANIZATION
Executive may not assign any of his rights, duties or obligations
hereunder without prior written consent of the Company. The rights and
obligations of the Company under this Agreement may, without the consent of
Executive, be assigned by the Company to any Affiliate of the Company or to any
third party in connection with the merger or consolidation of the Company or any
transfer of substantially all of the assets of the Company. In the event of any
such assignment, this Agreement shall not be terminated but the provisions of
this Agreement shall inure to the benefit of, and shall be binding upon, the
assignee and the term "Company" as used herein shall thereafter refer to such
assignee.
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SECTION 16. AGREEMENT READ, UNDERSTOOD, AND FAIR
EXECUTIVE HAS CAREFULLY READ AND CONSIDERED ALL PROVISIONS OF THIS
AGREEMENT AND AGREES THAT ALL OF THE RESTRICTIONS SET FORTH ARE FAIR AND
REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTERESTS OF
THE COMPANY.
SECTION 17. GENERAL PROVISIONS
17.1 Notices. All notices, requests, demands and other communications
permitted or required hereunder shall be in writing and shall be deemed to have
been duly given if delivered or if mailed, registered or certified United States
mail, postage prepaid:
If to Executive, addressed to the address set forth below
Executive's name on the signature page of this Agreement.
If to the Company, addressed to:
Veridian Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: President
with copies to:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: General Counsel
and:
Xxxxxxx & Xxxxx L.L.P.
Chase Tower
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other address as either party hereto may request by
notice.
17.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the
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same instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than one counterpart.
17.3 Title and Headings. Titles and headings to Sections hereof are
for the purpose of reference only and shall in no way limit, define or otherwise
affect the provisions hereof.
17.4 Cumulative Rights. Each and all of the various rights, powers
and remedies of the Company in this Agreement shall be considered as cumulative
with and in addition to any other rights, powers or remedies of the Company, and
no one of them shall be considered as exclusive of the others or as exclusive of
any other rights, powers and remedies allowed by law. The exercise or partial
exercise of any right, power or remedy shall neither constitute the election
thereof nor the waiver of any other right, power or remedy.
17.5 Entire Agreement; Modification. This Agreement including its
Exhibits contains the entire agreement of the Company and Executive relating to
the employment of Executive and supersedes all prior agreements and
understandings between them relating to those matters addressed herein. This
Agreement may be amended or modified so long as such amendment or modification
is agreed to in writing and signed by Executive and a duly authorized officer of
the Company other than Executive.
17.6 Severability. Any provision hereof prohibited by or
unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be deemed ineffective and deleted herefrom without affecting any
other provision of this Agreement. It is the desire of the parties hereto that
this Agreement be enforced to the maximum extent permitted by law, and should
any provision contained herein be held unenforceable, the parties hereby agree
and consent that such provision shall be reformed to make it a valid and
enforceable provision to the maximum extent permitted by law.
17.7 Waiver. No provision of this Agreement shall be considered
waived unless such waiver is in writing and signed by Executive and a duly
authorized officer of the Company other than Executive. No waiver of any
provision of this Agreement, however, shall be deemed a waiver of a subsequent
breach of such provision or a waiver of a similar provision.
17.8 Withholding. All payments required to be made to Executive
pursuant to this Agreement shall be subject to the withholding of amounts
relating to tax and other customary employee deductions in conformity with the
Company's payroll policies in effect from time to time.
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IN WITNESS WHEREOF, this Agreement is EXECUTED and EFFECTIVE as of the
day and year set forth above.
"THE COMPANY"
VERIDIAN CORPORATION
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
-------------------------------------------
Title: President and CEO
-------------------------------------------
"EXECUTIVE"
/s/ XXXXXX X. XXXXXXX
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
EXECUTIVE'S ADDRESS FOR PURPOSES OF NOTICES:
----------------------------------------------------
----------------------------------------------------
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EXHIBIT A
DEFINITIONS
"Affiliate" means, when used with respect to any Person, any other
Person that directly or indirectly controls, is controlled by or is under common
control with the Person in question. As used in this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Board of Directors" means a majority of the then elected and serving
members of the Board of Directors of the Company.
"Cause" means one or more of the following with respect to Executive (i)
an act of personal dishonesty, taken in connection with Executive's employment
responsibilities, intended to result in substantial personal enrichment or
material injury to the company or any Affiliate of the company or both; (ii)
conviction of a felony which is to Company's material economic detriment; or
(iii) a willful act, taken in connection with Executive's employment
responsibilities, which constitutes misconduct and results in material injury to
the Company or any Affiliate of the Company (other than in connection with the
death or Total Disability of Executive).
"Change of Control" shall be deemed to have occurred upon, and shall
mean:
Prior to an IPO:
(a) the acquisition by any Person of either (i) beneficial
ownership of (within the meaning of Rule 13d-3 promulgated under the
Securities Act) or more than fifty percent (50%) of each class of common
stock of the Company then outstanding or (ii) the right to control the
actions of the Company whether such right be in the form of a voting
agreement or otherwise;
(b) if during any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement),
individuals who, at the beginning of such period, constitute the Board,
and any new director (other than a director designated by a Person who
had entered into an agreement with the Company to effect a transaction
described in subclause (i) or (ii) clause (a) hereof) whose election by
the Board of Directors or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a
majority of the members of the Board of Directors; or
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(c) if the stockholders of the Company approve a merger or
consolidation, a sale or disposition of all or substantially all of the
Company's assets, or a plan of liquidation or dissolution of the
Company.
After an IPO:
(a) the acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Securities Act)
of twenty-percent (20%) or more of either (i) the combined voting power
of the then outstanding shares of all classes of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the
following acquisitions that would otherwise qualify under clause (i) or
(ii) shall not constitute a Change of Control:
(A) any acquisition by Executive or a group
constituting a Person that includes both Executive or the
President of the Company and at least twenty-five percent (25%)
in number of the total number of individuals covered by
agreements substantially similar to this Agreement before the
Change in Control (an "Executive Group"), or
(B) any acquisition by any Entity pursuant to a
reorganization, merger or consolidation, if, immediately
following such reorganization, merger or consolidation, the
conditions described in clause (i) or (ii) of clause (b) of this
paragraph are satisfied;
the approval by the stockholders of the Company of a
reorganization, merger or consolidation, unless immediately following
such reorganization, merger or consolidation (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation
and the combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by an
Executive Group in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, or (ii) no Person
(excluding the Company or an Executive Group) beneficially owns,
directly or indirectly, twenty percent (20%) or more of, respectively,
the then outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation or the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors; or
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(c) if during any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement), individuals who, at the
beginning of such period, constitute the Board, and any new director (other than
a director designated by a Person who had entered into an agreement with the
Company to effect a transaction described in clause (i) or (ii) of clause (b)
hereof) whose election by the Board of Directors or nomination for election by
the Company's stockholders was approved by a vote of a least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the members of the
Board of Directors.
"Company" means Veridian Corporation and any successor thereto.
"Competing Enterprise" means any Person that is engaged within the
United States in the manufacturing, producing, researching, licensing, and/or
selling of any product, technology, software, process, or service to or for any
customer of the Company or any Affiliate of the Company, in competition with any
product, technology, software, process, or service of the Company or any
Affiliate of the Company.
"Effective Date" means the date shown in the first sentence of this
Agreement.
"Employee Benefit Plan" means any accident insurance, accidental death
and dismemberment insurance, death benefit plan, dental insurance, disability
benefit plan, group term life insurance plan, health and welfare plan, hospital
insurance, medical insurance, relocation plan, salary continuation plan,
severance plan, savings plan, split dollar life insurance program, surgical
insurance, thrift plan, travel insurance, or similar plan or program of the
Company or any Affiliate of the Company for the benefit of its employees, its
employees' dependents and beneficiaries, or both.
"Entity" means an association, corporation, estate, joint stock company,
joint venture, limited partnership, limited liability company, partnership,
trust, business trust, cooperative or association or any other organization used
to carry on business or hold any equity interest in any organization used to
carry on business.
"Executive" is defined in the first paragraph.
"Good Reason" means the occurrence of one or more of the following
events:
(a) during the time period commencing six (6) months
preceding a Change of Control and ending two (2) years thereafter, any
diminution in Executive's Salary or
15
incentive compensation or any material diminution in employee benefits
for the then-current year or any future year;
(b) failure of the Company to offer Executive, on or before
three (3) months after a Change of Control, material participation in a
stock option or similar equity program of the Company (such material
participation to be determined without regard to Executive's
participation in any such program prior to such Change of Control);
(c) during the time period commencing six (6) months
preceding a Change of Control and ending two (2) years thereafter, any
material (taking into account changes in corporate structure) diminution
in any status, office, title, duty, authority, power or function of
Executive, or the assignment of any duties or responsibilities
materially inconsistent with Executive's prior position, except an
isolated and insubstantial diminution or assignment that is promptly
remedied following notice by the Executive to the Company;
(d) during the time period commencing six (6) months
preceding a Change of Control and ending two (2) years thereafter, any
required relocation of Executive outside the Washington, D.C.
metropolitan area, without Executive's consent;
(e) any breach by the Company of any of its other material
obligations under this Agreement, including but not limited to any
purported termination of Executive's employment in material breach of
this Agreement, except an isolated and insubstantial breach that is
promptly remedied following notice by Executive to the Company of the
breach; or
(f) the bankruptcy of the Company.
"Initial Term" is defined in Section 2.2.
"IPO" means the first underwritten offering after the date hereof,
whether primary or secondary, of common stock, options, warrants or securities
convertible into or exchangeable for shares of, or rights to acquire shares of,
common stock, which is registered pursuant to an effective registration
statement filed by the Company under the Securities Act of 1933, as amended, and
sold to an underwriter in a firm commitment underwriting for reoffering to the
public (other than (i) a registration statement filed on Form S-4 (or any
successor form), (ii) a registration statement filed on Form S-8 (or any
successor form), or any other applicable form with respect to the issuance of
common stock, or securities convertible into, or exchangeable for, common stock
or rights to acquire common stock or such securities, issued or to be issued or
granted to directors, officers or employees of the Company, and (iii) any
registration statement relating to an offering of debt securities of the Company
convertible or exchangeable into common stock).
16
"Period of Employment" means the Initial Term and all applicable Renewal
Terms, subject to an earlier termination pursuant to Section 12.
"Person" means any individual or Entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits, and, unless the context otherwise requires, the
singular shall include the plural, and the masculine gender shall include the
feminine and the neuter and vice versa; further, the term "Person" includes any
group of Persons within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Securities Act.
"Renewal Date" is defined in Section 2.3.
"Renewal Term" is defined in Section 2.3.
"Salary" is defined in Section 4.1.
"Securities Act" means the Securities Exchange Act of 1934, as amended.
"Six-Month Term" is defined in Section 7.1.
"Total Disability" means any mental or physical illness, condition,
disability or incapacity that (i) prevents Executive from reasonably discharging
required services and employment duties hereunder, (ii) is attested to in
writing by a physician or a group of physicians acceptable to the Company and
Executive; and (iii) continues without interruption during any period of three
consecutive months. A Total Disability shall be deemed to have occurred on the
last day of such applicable three-month period.
17
EXHIBIT B
TO
EMPLOYMENT & CONFIDENTIALITY
AGREEMENT
2002
[VERIDIAN LOGO]
CORPORATE HEADQUARTERS
MEMORANDUM
DATE: January 30, 2002
TO: Xxx Xxxxxxx
FROM: Xxxxx X. Xxxxxxxxx
RE: 2002 Compensation Plan
--------------------------------------------------------------------------------
COMPENSATION
Your annual base salary as of January 1, 2002 is $255,000. Your target bonus for
2002 is $127,500. Your actual bonus will be based on the performance metrics
described below, the ultimate size of the incentive compensation ("IC") pool,
your performance, and on the terms of the plan approved by the Board of
Directors for the year.
SIZING AND FUNDING THE CORPORATE IC POOL
The actual corporate IC pool will be created (i.e., funded) based upon three
factors reflecting our 2002 financial performance:
1. Meeting our budgeted division operating profit (EBIT) targets;
2. The absolute growth in division operating profit from 2001 to 2002;
3. The absolute growth in division revenues from 2001 to 2002; and
4. The absolute growth in consolidated operating profit from 2001 to
2002.
Specifically, the actual IC pool will be determined by adding the following
three percentages, and multiplying that sum by the budgeted incentive pool:
1. 40% multiplied by: the actual rate of growth in division operating
profit divided by the budgeted rate of growth in division operating
profit, subject to a ceiling of 40%;
2. One (1) times the actual percentage growth in division operating
profit from 2001 to 2002;
3. Two (2) times the actual percentage growth in division revenues from
2001 to 2002; and
4. Two (2) times the actual percentage growth in consolidated operating
profit from 2001 to 2002
Note that there is no ceiling on the amounts calculated in points 2, 3 and 4,
above.
INDIVIDUAL ALLOCATION METHODOLOGY
Given that the IC pool will be funded based on financial performance (as
described above) and our ability to accrue IC funds within our rate structure,
the ultimate size of the pool will be
determined by actual financial performance at year-end. Regardless as to the
ultimate size of the IC pool at year end, it will be segmented into two
components:
Participation Segment (25%)
Discretionary Segment (75%)
The participation segment reflects the fact that, while individual performance
is important, we succeed or fail as a team. Twenty-five percent of the IC pool
will be set aside and shared among the participants of the incentive
compensation pool on a pro-rata basis based on base salary. This component is
intended to underscore the fact that we must all assume responsibility for the
overall performance of the company, support each other wherever possible, and
work together in order to achieve success and therefore, maximize the size of
the incentive compensation pool.
The discretionary segment will consist of seventy-five percent of the total IC
pool, and will be based on an assessment of your contribution to the financial
performance of the company, any specific financial metrics discussed with you,
and your performance against your 2002 performance priorities (as previously
assigned).
Please recognize that, while the funding of the IC pool is calculated based on
performance, it is subject to final determination based on what can be accrued
within our rate structure. We may, on occasion, find that the funding
calculations suggest an IC pool that is greater than what we can accrue, due to
higher than expected indirect costs in other areas. To state the obvious, we
all share an objective of keeping our indirect costs within reason and budget.
The allocation of the IC pool to each individual will be done according to the
guidelines presented above, but nevertheless will remain subjective, with
judgments made that are not formulaic. The primary purpose of the 'Target
Bonus' amount identified for you is to determine your percentage of the IC
pool, assuming all performance targets (both corporate and individual) are
exactly met.
GENERAL RULES
Payment will be made to you during the first quarter of 2003, after
substantially final determination of the 2002 financial performance of the
company. Final year-end performance numbers may be adjusted by the CEO and the
Board of Directors, in their sole discretion.
All bonuses, despite metrics, remain subject to discretionary review,
adjustment, and approval of the CEO and the Veridian Board of Directors. In
particular, please note that:
1. An Executive Bonus may be reduced or eliminated for serious violations
by the participant of Company policy, government laws or regulations,
or as disciplinary action within the Company's Self-Governance program.
Such actions require the approval of the CEO and the General Counsel.
2. The Plan focuses on the operating performance of the business. In the
event significant consolidation or acquisition/divestiture activities
occur during the Plan year which were not figured into the performance
target, payments otherwise available under the Plan will be reviewed
and may be altered with the approval of the CEO and the Board of
Directors.
3. If your employment terminates during 2002 or before final calculation
of bonus payments in 2003, for any reason other than a Change of
Control (as defined in the Veridian Corporation 2000 Stock Incentive
Plan) you will not be entitled to any payment under this Plan.
4. All bonuses are subject to funds having been accrued during 2002 to pay
them. In the event that the bonus pool is insufficient to meet bonus
obligations, then bonuses shall be adjusted on a pro-rata or other
basis by the CEO.
2002 Performance Goals (Xxxxxxx)
1. Run the business of Veridian Information Solutions Division effectively,
meeting or exceeding financial performance goals; give particular focus to
a) direct labor productivity, b) indirect costs, and c) growth.
2. Ensure outstanding staffing, and retention of key employees, in all
leadership positions; pay particular attention to business development,
financial and sector president positions; coordinate with Executive Council
members as appropriate, and take action where we do not appear to have the
right people in the right job.
3. Continue to promote, pursue and support cross-divisional new business and
customer support initiatives; provide active support to the Xxxxxxx/Xxxxxx
capability, and to the efforts to strengthen business development
capabilities and processes across the company.
4. Assume a pro-active, anticipatory continuous process improvement approach
to VIS organization, operating systems and processes; emphasize scalability
and internal customer service in order to properly support anticipated VIS
growth; make appropriate changes in a timely manner.
5. Visibly assume a greater corporate SVP role, thereby facilitating your own
sense as part of the corporate executive team, and a greater sense of VIS
as part of the corporation rather than as an independent entity; assume
greater ownership of corporate priorities, including promoting them with
VIS staff.
6. Oversee and effectively manage the corporate VP, CIO role in accordance
with stated 2002 priorities.
7. Resolve cultural differences between heritage TDS and MRJ, and move to
firmly establish operating procedures and systems in accordance with the
Veridian culture.
8. Meet regularly with members of Executive Team; mentor sector and other
division leaders where possible.
9. Meet regularly with CEO and members of the Executive Team and engage them
to support you in meeting 2002 performance goals.
