1
EXHIBIT 10.12
EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY
EMPLOYMENT AGREEMENT entered into this 16th day of March, 1998 by and
between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive") and MAXIMUS, Inc., a Virginia
corporation with a usual place of business in McLean, Virginia (the
"Corporation").
WHEREAS, Executive is a key employee of the Corporation and a holder of
a substantial number of shares of the issued and outstanding capital stock of
the Corporation.
NOW, THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Employment.
1.1. Duties. The Corporation hereby employs the Executive, and the
Executive hereby accepts such employment, to serve during the term of this
Agreement as Division President of the Spectrum Consulting Group Division of the
Corporation reporting directly to the President of the Consulting Group of the
Corporation. The Executive hereby represents and warrants that he is in good
health and capable of performing the services required hereunder. The Executive
shall perform such services and duties as are appropriate to such office or
delegated to the Executive by the President of the Consulting Group or the Board
of Directors of the Corporation. During the term of this Agreement, the
Executive shall be a full time employee of the Corporation and shall devote such
time and attention to the discharge of his duties as may be necessary and
appropriate to accomplish and complete such duties. The Executive may not be
transferred from the Spectrum Consulting Group Division during the term of this
Agreement without his prior written consent. The Executive shall be entitled to
live in any U.S. city of his choice convenient to major transportation
facilities, and the Corporation shall reimburse the Executive's travel and
living expenses for travel to and from work locations. The Executive understands
that his job requires extensive travel and is willing to travel extensively.
1.2. Compensation.
(a) Salary and Regular Year-End Bonus. As compensation for
performance of his obligations hereunder, the Corporation shall pay the
Executive a salary of not less than $300,000 and regular year-end bonus
consistent with the Corporation's past practices.
(b) Option Agreement. As a signing bonus for joining the
Corporation and not in lieu of bonus or incentive compensation, Executive shall
also receive a stock option to purchase 100,000 shares of the Corporation's
common stock, no par value at an exercise price equal to fair market value on
the date of hire, which will become exercisable as to 25,000 shares on each of
the first four anniversaries of the date of hire. Such option shall have the
standard
1
2
terms for the Corporation's non-qualified stock options except that such option
shall become fully exercisable to the extent not then exercisable upon the
occurrence of a change of control as defined in Section 12(g) of the
Corporation's Equity Incentive Plan.
(c) Vacation, Insurance, Expenses. The Executive shall be
entitled to such vacation benefits, health, disability and life insurance
benefits and expense reimbursements in a manner consistent with the
Corporation's past practices and as are provided by the Corporation to its Chief
Executive Officer and based on the Executive's years of service with Spectrum
Consulting Group, Inc. being treated as years of service with the Corporation
for the purposes of qualification, seniority, vesting, meeting any required
waiting periods and otherwise. Any waiting periods for pre-existing conditions
under the Corporation's insurance benefits are hereby waived for the executive.
1.3. Term; Termination. The term of the employment agreement set forth
in this Section 1 shall be for a period commencing on the date hereof and
continuing until March 15, 2002 provided that this Agreement shall terminate:
(a) by mutual written consent of the parties; or
(b) upon Executive's death or inability, by reason of physical
or mental impairment, to perform substantially all of Executive's duties as
contemplated herein for a continuous period of 120 days or more; or
(c) by the Corporation for cause, which shall mean the
Executive's intentional or grossly negligent misconduct that is materially
injurious to the Corporation, or willful failure to follow the reasonable
written directions of the Corporation's Board of Directors despite being given
written notice of and a reasonable opportunity to cure such failure.
The Corporation shall not have the right to terminate this Agreement as to the
Executive's employment prior to the end of the term except as provided in
clauses (a), (b) and (c) of this Section 1.3.
Upon any termination of employment under this Section 1.3, neither
party shall have any obligation to the other pursuant to this Section 1, but
such termination shall have no effect on the obligations of the parties under
other provisions of this Agreement.
2. NON-COMPETITION.
2.1. Undertaking. The Executive agrees that while the Executive is
employed by the Corporation and for a period of two (2) years after the
termination or cessation of such employment for any reason, the Executive shall
not, without the Corporation's prior written consent, directly or indirectly, as
a principal, employee, consultant, partner, or stockholder of, or in any other
capacity with, any business enterprise (other than in the Executive's capacity
as a holder of not more than 1% of the combined voting power of the outstanding
stock of a publicly held company) (a) engage in direct or indirect competition
with the Corporation, (b) conduct a business of the type or character engaged in
by the Corporation at the time of termination or cessation of the Executive's
employment or (c) develop products or services competitive with those of the
Corporation.
2
3
2.2. Prohibited Activities.
(a) The Executive agrees that, during his employment with the
Corporation, and thereafter for a period of two years after the termination of
such employment, the Executive will not engage in any unethical behavior which
may adversely affect the Corporation. For the purpose of this Section 2.2,
"Unethical Behavior" is defined as:
(1) any attempt, successful or unsuccessful, by the
Executive to divert any existing contracts or subcontracts from the Corporation
to any other firm, whether or not affiliated with the Executive;
(2) any attempt, successful or unsuccessful by the
Executive, to adversely influence clients of the Corporation or organizations
with which the Corporation has a contract or a proposal pending as of the date
of the Executive's termination from the Corporation;
(3) any attempt, successful or unsuccessful, by the
Executive to divert any contracts or subcontracts which are pending as of the
date of Executive's termination from the Corporation to any other firm, whether
or not affiliated with the Executive;
(4) any attempt, successful or unsuccessful, by the
Executive to offer his services, or to influence any other employee of the
Corporation to offer their services, to any firm to compete against the
Corporation in the performance of services provided under existing contracts or
follow-ons to existing contracts or pending proposals with the Corporation's
clients as of the date of the Executive's termination; or
(5) any attempt, successful or unsuccessful, by the
Executive to employ or offer employment to, or cause any other person to employ
or offer employment to any other employee of the Corporation.
(b) The Executive agrees that, in addition to any other remedy
available to the Corporation, in the event of a breach by the Executive of the
terms of this Section 2 the Corporation may set off against any amounts due the
Executive, an amount equal to the gross revenues which such Executive, or any
entity with which the Executive is employed, affiliated or associated, receives
or is entitled to receive, from any existing clients (or potential clients with
whom a proposal is pending) of the Corporation during the two-year period
provided in this Section 2.
(c) The provisions of this Section 2 shall continue for a
period of two years after termination of the Executive's employment with the
Corporation, whether voluntary or involuntary, with or without cause. The
Executive shall notify any new employer, partner, association or any other firm
or corporation actually or potentially in competition with the Corporation with
whom the Executive shall become associated in any capacity whatsoever of the
provisions of this Section 2 and the Executive agrees that the Corporation may
give such notice to such firm, corporation or other person.
3
4
2.3. Business Opportunities: Conflicts of Interest: Other Employment
and Activities of the Executive.
(a) The Executive agrees promptly to advise the Corporation
of, and provide the Corporation with an opportunity to pursue, all business
opportunities that reasonably relate to the present business conducted by the
Corporation.
(b) The Executive, in his capacity as an employee of the
Corporation, shall not engage in any business with any member of the Executive's
immediate family or with any person or business entity in which the Executive or
any member of the Executive's immediate family has any ownership interest or
financial interest, unless and until the Executive has first fully disclosed
such interest to the Board of Directors and received written consent from the
Board of Directors, signed by the Chairman of such board. As used herein, the
term "immediate family" means the Executive's spouse, natural or adopted
children, parents or siblings and the term "financial interest" means any
relationship with such person or business entity that may monetarily benefit the
Executive or member of the Executive's immediate family, including any lending
relationship or the guarantying of any obligations of such person or business
entity by the Executive or member of his immediate family.
(c) The parties hereto acknowledge and agree that the
Executive may engage in outside civic, political, social, educational and
professional activities and may serve on the boards of directors of other
corporations; provided, however, that such activities shall not have priority
over or adversely affect or conflict with the business of the Corporation or its
clients, or interfere with the mobility of the Executive to fulfill the
Executive's duties to the Corporation as a full-time employee and officer and
director of the Corporation, as conclusively determined by the Board of
Directors of the Corporation.
(d) The parties hereto agree that the Executive may,
consistent with this Section 1.3, receive and retain speaking fees, referral
fees from business opportunities not accepted by the Corporation, and fees from
outside business activities and opportunities of the Executive consented to by
the Board of Directors of the Corporation.
3. Confidentiality.
3.1. Non-Disclosure. The parties hereto agree that the Corporation's
books, records, files and all other information relating to the Corporation
(that is not otherwise available in the Public Domain), its business and its
clients are proprietary in nature and contain trade secrets and shall be held in
strict confidence by the parties hereto, and shall not, either during the term
of this Agreement or after the termination hereof, be intentionally disclosed,
directly or indirectly, to any third party, person, firm, corporation or other
entity, irrespective of whether such person or entity is a competitor of the
Corporation or is engaged in a business similar to that of the Corporation;
except in furtherance of the Corporation's business. The trade secrets or other
proprietary or confidential information referred to in the prior sentence
includes, without limitation, all proposals to clients or potential clients,
contracts, client or potential client lists, fee policies, financial
information. administration or marketing practices or procedures and all other
information regarding the business of the Corporation and its clients not
generally known to the public, but does not include (1) information that the
Executive knew or had in his possession,
4
5
prior to disclosure by the Corporation, without obligation of confidentiality;
(2) information that is received rightfully by the Executive from a third party
and without obligation of confidentiality; or (3) ideas, concepts, techniques,
know-how and methodologies known by the Executive prior to his employment with
the Corporation.
3.2. Trade Secrets. The parties hereto hereby acknowledge and agree
that all proprietary information referred to in this Section 2 shall be deemed
trade secrets of the Corporation and that each party hereto shall take such
steps, undertake such actions and refrain from taking such other actions, as
mandated by the provisions hereof and by the provisions of the laws of the
Commonwealth of Virginia.
4. Stock Restrictions.
4.1. Transfers. The Executive may not offer, sell, assign, grant a
participation in, pledge or otherwise transfer ("Transfer") any of the
Executive's shares of Common Stock of the Corporation (including shares acquired
after the date hereof) (the "Shares") except in compliance with the Securities
Act of 1933, as amended (the "Act"), and any applicable state securities laws.
4.2. Improper Transfer.
(a) Any attempt to Transfer any Shares not in compliance with
this Agreement shall be null and void and neither the Corporation nor any
transfer agent of the Corporation shall register, or otherwise recognize in the
Corporation's records, any such improper Transfer.
(b) The Executive shall not enter into any transaction or
series of transactions for the purpose or with the effect of, directly or
indirectly, denying or impairing the rights or obligations of the Corporation
under this Agreement, and any such transaction shall be null and void and, to
the extent that such transaction requires any action by the Corporation, it
shall not be registered or otherwise recognized in the Corporation's records or
otherwise.
4.3. Access to Records and Documents. At any time during which the
Executive is a stockholder and/or a member of the Board of Directors of the
Corporation, the Executive shall be entitled to inspect and copy such records
and documents to the extent provided by the Stock Corporation Act of the
Commonwealth of Virginia and any other applicable law.
5
6
5. Registration Rights.
5.1. Secondary Registration.
(a) Registration for Resale. The Corporation intends to seek
to create liquidity for the Shares held by the Executive. In the sole discretion
of the Corporation, the Corporation may file with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-8 or Form S-3
(or similar form) sufficient to permit the public offering and sale of the
Registrable Shares (as defined below) through all securities exchanges and
over-the-counter markets on which the Corporation's Common Stock is then traded.
For the purposes of this Agreement, "Registrable Shares" shall mean outstanding
Shares held by the Executive and any other person holding registration rights
substantially the same as the rights set forth in this Section 5, which Shares
are not at that time the subject of an effective registration statement filed
with the Commission. For the purposes of this Agreement, "Holders" shall mean
the Executive and any person to whom the Executive has transferred Registrable
Shares.
(b) Notice of Filing of Registration Statement. In the event
the Corporation determines to file a registration pursuant to Section 5.1(a),
the Corporation shall notify each Holder of the proposed filing and request that
each Holder notify the Corporation within 15 days thereafter of the number of
Registrable Shares such Holder wishes the Corporation to register on such
Holder's behalf. Each Holder shall, prior to the end of such 15 day period,
request in writing that the Corporation register the sale of all or part of such
Holder's Registrable Shares.
5.2. Piggyback Registration Rights.
(a) Offer to Include Registrable Shares in Corporation
Offering. If, at any time prior to the Registration Termination Date (as defined
in Section 5.4), the Corporation proposes to file a registration statement to
register shares of Common Stock for its own account in an underwritten offering
with the Commission (other than a registration on Form ▇-▇, ▇▇▇▇ ▇-▇ or other
special purpose form) while any Registrable Shares are outstanding, the
Corporation shall give all the Holders at least 45 days prior written notice of
the filing of such registration statement. Subject to 5.2(b) below, if requested
by any Holder in writing within 30 days after receipt of any such notice, the
Corporation shall register or qualify all or, at each Holder's option, any
portion of the Registrable Shares of any Holders who shall have made such
request, concurrently with the registration of such other securities, all to the
extent requisite to permit the public offering and sale of the Registrable
Shares through the facilities of all appropriate securities exchanges and the
over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to become
effective as promptly as practicable.
(b) Cutback of Participation in Corporation Offering.
Notwithstanding Section 5.2(a), if the managing underwriter of any such offering
shall advise the Corporation in writing that, in its opinion, the distribution
of all or a portion of the Registrable Shares requested to be included in the
registration concurrently with the securities being registered by the
Corporation would materially adversely affect the distribution of such
securities by the Corporation for its own account, then the number of
6
7
Registrable Shares held by such Holder to be included in such registration
statement shall be reduced to the extent advised by such managing underwriter,
provided that any such reduction shall be made pro rata among the Holders
electing to participate in such registration based on the aggregate number of
Registrable Shares held by each Holder electing to so participate, and provided
further that the total number of Registrable Shares included in any such
registration shall not be less than 25% of the total number of shares of Common
Stock included in the registration for the Corporation's account, the Holders'
account and the account of any other person.
5.3. Underwriting.
(a) Underwriting in Secondary Registration. If the Corporation
undertakes a registration under Section 5.1, any Holder wishing to distribute
the Registrable Shares which such Holder has requested to be registered in such
registration by means of an underwriting, such Holder shall so advise the
Corporation in such Holder's request to participate in such registration under
Section 5.1(b). The Holders of a majority of the Registrable Shares being
offered may select one or more underwriters for the registration under Section
5.1, which selection shall be approved by the Corporation, which approval shall
not be unreasonably withheld provided such underwriter(s) are experienced and
reputable. The Corporation shall, together with the Holders engaged in the
registration hereunder, enter into an underwriting agreement with the
representative of the underwriter or underwriters selected for such underwriting
in accordance with this Section 5.3(a).
(b) Underwriting in Piggyback Registration. In the event of an
underwritten registration pursuant to the provisions of Section 5.2, any Holder
who requests to have Registrable Shares included in such registration shall
enter into such custody agreements and powers of attorney as are reasonably
requested by the Corporation and any such underwriter, and, if requested, enter
into an underwriting agreement containing customary terms.
(c) Right of Withdrawal from Underwriting. In the event of an
underwritten offering under Section 5.3(a) or (b), the right of a Holder to
participate in a registration hereunder shall be conditioned upon the inclusion
of such Holder's Registrable Shares in such underwriting. If a Holder
disapproves of the terms of the underwriting, such Holder may elect to withdraw
therefrom by written notice to the Corporation and the underwriter delivered at
least seven days prior to the effective date of the Registration Statement. The
securities so withdrawn shall also be withdrawn from the Registration Statement.
5.4. Effectiveness and Expenses. The Corporation will use its best
efforts through its officers, directors, auditors and counsel to cause any
Registration Statement filed pursuant to this Section 5 to become effective as
promptly as practicable. The Corporation shall be obligated to use its best
efforts to maintain the effectiveness of such Registration Statement only until
the earlier of (i) the date on which the Registrable Shares may be sold (without
regard to volume limitations) under Rule 144 promulgated under the Act, and (ii)
the date on which no Registrable Shares remain outstanding (the "Registration
7
8
Termination Date"). The Corporation shall be obligated to pay all expenses
(other than the fees and disbursements of counsel for the Holders and
underwriting discounts, if any, payable in respect of the Registrable Shares
sold by the Holders) in connection with any such Registration Statement,
including any expenses incurred in connection with a registration or
qualification pursuant to Section 5.5 below.
5.5. Blue Sky Registrations. In the event of a registration pursuant to
the provisions of this Section 5, the Corporation shall use its best efforts to
cause the Registrable Shares so registered to be registered or qualified for
sale under the securities or blue sky laws of such jurisdictions as the Holders
may reasonably request; provided, however, that the Corporation shall not be
required to qualify to do business in any state by reason of this Section 5.5 in
which it is not otherwise required to qualify to do business.
5.6. Continuing Effectiveness. Until the Registration Termination Date,
the Corporation shall use its best efforts to keep effective any registration or
qualification contemplated by this Section 5 and shall from time to time amend
or supplement each applicable registration statement, preliminary prospectus,
final prospectus, application, document and communication for such period of
time as shall be required to permit the Holders to complete the offer and sale
of the Registrable Shares covered thereby.
5.7. Copies of Registration Statement and Related Documents and
Information. In the event of a registration pursuant to the provisions of this
Section 5, the Corporation shall furnish to each Holder a copy of the
Registration Statement and of each amendment and supplement thereto (in each
case, including all exhibits), and a reasonable number of copies of each
prospectus contained in such registration statement and each supplement or
amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Act, and the rules and regulations
thereunder, and such other documents and information, as any Holder may
reasonably request to facilitate the disposition of the Registrable Shares
included in such registration.
5.8. Rule 144 Eligibility. The Corporation agrees that until all the
Registrable Shares have been sold under a registration statement or pursuant to
Rule 144 under the Act, the Corporation shall use its best efforts to keep
current in filing all reports, statements and other materials required to be
filed with the Commission to permit holders of the Registrable Shares to sell
such securities under Rule 144.
5.9. No Inconsistency. The Corporation shall not enter into any
agreement with any holder or prospective holder of any securities of the
Corporation providing for the grant of registration rights which is inconsistent
with the rights granted to the Holders of Registrable Shares in this Agreement.
8
9
6. Indemnity.
6.1. Corporation Indemnification of the Holders. Subject to the
conditions set forth below, the Corporation agrees to indemnify and hold
harmless each Holder, its officers, directors, partners, employees, agents and
counsel, if any, and each person, if any, who controls any such person within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), if any, from and against any and
all loss, liability, charge, claim, damage and expense whatsoever (which shall
include, for all purposes of this Section 6, without limitation, attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any registration statement, preliminary prospectus or final
prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, relating to the sale of any of the Registrable Shares, filed
with the Commission, any state regulatory authority or any securities exchange;
or any omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arising out of, based upon, or in connection with any violation by the
Corporation of any rule or regulation promulgated under the Act applicable to
the Corporation and relating to any action or inaction required of the
Corporation in connection with any registration pursuant to Section 5, unless
and to the extent such statement or omission was made in reliance upon and in
conformity with written information furnished to the Corporation with respect to
such Holder by or on behalf of such person expressly for inclusion in any
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, as the case may be. The foregoing agreement to
indemnify shall be in addition to any liability the Corporation may otherwise
have, including liabilities arising under this Agreement.
If any action is brought against any Holder or any of its officers,
directors, partners, employees, agents or counsel, or any controlling persons of
such person (an "Indemnified Party") in respect of which indemnity may be sought
against the Corporation pursuant to the foregoing paragraph, such Indemnified
Party or Parties shall promptly notify the Corporation in writing of the
institution of such action (but the failure so to notify shall not relieve the
Corporation from any liability other than pursuant to this Section 6.1) and the
Corporation shall promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such Indemnified Party or
Parties) and payment of expenses. Such Indemnified Party or parties shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless the employment of such counsel shall have been authorized in
writing by the Corporation in connection with the defense of such action or the
Corporation shall not have promptly employed counsel reasonably satisfactory to
such Indemnified Party or Parties to have charge of the defense of such action
or such Indemnified Party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
Indemnified Parties which are different from or additional to those available to
the Corporation, in any of which events such fees and expenses shall be borne by
the Corporation, and the Corporation shall
9
10
not have the right to direct the defense of such action on behalf of the
Indemnified Party or Parties. Anything in this Section 6 to the contrary
notwithstanding, the Corporation shall not be liable for any settlement of any
such claim or action effected without its written consent, which shall not be
unreasonably withheld or delayed. The Corporation shall not, without the prior
written consent of each Indemnified Party that is not released as described in
this sentence, settle or compromise any action, or permit a default or consent
to the entry of judgment in or otherwise seek to terminate any pending or
threatened action, in respect of which indemnity may be sought hereunder
(whether or not any Indemnified Party is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Party from all liability in respect of such action. The
Corporation agrees promptly to notify the Holders of the commencement of any
litigation or proceedings against the Corporation or any of its officers or
directors in connection with the sale of any Registrable Shares or any
preliminary prospectus, prospectus, registration statement or amendment or
supplement thereto, or any application relating to any sale of any Registrable
Shares.
6.2. Holder Indemnification of the Corporation. Each Holder
participating in any such registration shall severally and not jointly,
indemnify and hold harmless the Corporation, each director of the Corporation,
each officer of the Corporation who shall have signed the registration statement
covering Registrable Shares held by the Holder, each other person, if any, who
controls the Corporation within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, and its or their respective counsel, to the same
extent as the foregoing indemnity from the Corporation to the Holders in Section
6.1, but only with respect to statements or omissions, if any, made in any
registration statement, preliminary prospectus or final prospectus (as from time
to time amended and supplemented), or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Corporation with respect to such Holder by or on behalf of such Holder expressly
for inclusion in any such registration statement, preliminary prospectus or
final prospectus, or any amendment or supplement thereto, as the case may be. If
any action shall be brought against the Corporation or any other person so
indemnified based on any such registration statement, preliminary prospectus or
final prospectus, or any amendment or supplement thereto, or in any application,
and in respect of which indemnity may be sought against such Holder pursuant to
this Section 6.2, such Holder shall have the rights and duties given to the
Corporation and the Corporation and each other person so indemnified shall have
the rights and duties given to the Indemnified Parties, by the provisions of
Section 6.1. However, in no event shall the liability of any Holder of
Registrable Shares participating in such registration hereunder be greater than
the dollar amount for the proceeds received by such Holder upon the sale of the
Registrable Shares giving rise to such indemnification obligation.
6.3. Contribution. To provide for just and equitable contribution, if
(i) an Indemnified Party makes a claim for indemnification pursuant to Section
6.1 or 6.2 but it is found in a final judicial determination, not subject to
further appeal, that such indemnification may not be enforced in such case, even
though this Agreement expressly provides for indemnification in such case, or
(ii) any indemnified or indemnifying party seeks contribution under the Act, the
Exchange Act or otherwise, then the Corporation (including for this purpose any
contribution made by or on behalf of any director of the
10
11
Corporation, any officer of the Corporation who signed any such registration
statement, any controlling person of the Corporation, and its or their
respective counsel), as one entity, and the Holders of the Registrable Shares
included in such registration in the aggregate (including for this purpose any
contribution by or on behalf of an Indemnified Party), as a second entity, shall
contribute to the losses, liabilities, claims, damages and expenses whatsoever
to which any of them may be subject, on the basis of relevant equitable
considerations such as the relative fault of the Corporation and such Holders in
connection with the facts which resulted in such losses, liabilities, claims,
damages and expenses. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission or alleged omission, shall be determined by,
among other things, whether such statement, alleged statement, omission or
alleged omission relates to information supplied by the Corporation or by such
Holders, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, alleged statement, omission or
alleged omission. The Corporation and the Holder agree that it would be unjust
and inequitable if the respective obligations of the Corporation and the Holders
for the contribution were determined by pro rata or per capita allocation of the
aggregate losses, liabilities, claims, damages and expenses (even if the Holder
and the other Indemnified Parties were treated as one entity for such purpose)
or by any other method of allocation that does not reflect the equitable
considerations, referred to in this Section 6.3. In no case shall any Holder be
responsible for a portion of the contribution obligation imposed on all Holders
in excess of its pro rata share based on the number of Registrable Shares held
by it and included in such registration as compared to the number of Registrable
Shares owned by all Holders and included in such registration. No person guilty
of a fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. For purposes of this Section 6.3, each person, if
any, who controls any Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and each officer, director, partner, employee,
agent and counsel of each such Holder or control person shall have the same
rights to contribution as such Holder or control person and each person, if any,
who controls the Corporation within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, each officer of the Corporation who shall
have signed any such registration statement, each director of the Corporation
and its or their respective counsel shall have the same right to contribution as
the Corporation, subject in each case to the provisions of this Section 6.3.
Anything in this Section 6.3 to the contrary notwithstanding, no party shall be
liable for contribution with respect to the settlement of any claim or action
effected without its written consent. This Section 6.3 is intended to supersede
any right to contribution under the Act, the Exchange Act or otherwise.
11
12
7. Miscellaneous.
7.1. Notices. All notices, requests, demands or other communications
provided for in this Agreement shall be in writing and shall be delivered by
hand, sent prepaid by Federal Express (or a comparable overnight delivery
service) or sent by the United States mail, certified, postage prepaid, return
receipt request, to the following
If to the Corporation,
MAXIMUS, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Executive,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice, request, demand or other communication delivered or sent in the
foregoing manner shall be deemed given or made (as the case may be) upon the
earliest of (i) the date it is actually received, (ii) the business-day after
the day on which it is delivered by hand, (iii) the business day after the day
on which it is properly delivered to Federal Express (or a comparable overnight
delivery service), or (iv) the third business day after the date on which it is
deposited in the United States mail. Either party may change its address by
notifying the other party of the new address in any manner permitted by this
paragraph. Rejection or other refusal to accept or the inability to deliver
because of a changed address of which no notice was given shall not affect the
date of such notice, election or demand sent in accordance with the foregoing
provisions.
7.2. Remedies. The parties hereto further agree and acknowledge that
any violation by either party of the terms hereof may result in irreparable
injury and damage to the other party, which will not adequately be compensable
in monetary damages, that the injured party will have no adequate remedy at law
therefor, and that the injured party may obtain such preliminary, temporary or
permanent mandatory or restraining injunctions, orders or decrees as may be
necessary to protect it against, or on account of, any breach of the provisions
contained in this Agreement.
7.3. No Obligation of Continued Employment After Termination of Section
1. Except as set forth in Section 1 hereof, the Executive understands that this
Agreement does not constitute a contract of employment or create an obligation
on the part of the Corporation to continue the Executive's employment with the
Corporation.
12
13
7.4. Benefit; Assignment. This Agreement shall bind and inure to the
benefit of the parties and their respective personal representatives, heirs,
successors and assigns, provided this Agreement may not be assigned by either
party without the consent of the other except that the Corporation may assign
this Agreement in connection with the merger, consolidation or sale of all or
substantially all of its business or assets to a successor that assumes in
writing the Corporation's obligations hereunder. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and other legal representatives and, to the extent that any
assignment hereof is permitted hereunder, their assignees.
7.5. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, with respect to the subject matter of this Agreement.
7.6. Severability. In the event that any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and all other
provisions shall remain in full force and effect. If any of the provisions of
this Agreement is held to be excessively broad, it shall be reformed and
construed by limiting and reducing it so as to be enforceable to the maximum
extent permitted by law.
7.7. Waivers. No delay or omission by a party in exercising any right
under this Agreement will operate as a waiver of that or any other right. A
waiver or consent given by a party on any occasion if effective only in that
instance and will not be construed as a bar to or waiver of any right on any
other occasion.
7.8. Captions. The captions of the various sections and paragraphs of
this Agreement have been inserted only for the purpose of convenience; such
captions are not a part of this Agreement and shall not be deemed in any manner
to modify, explain, enlarge or restrict any of the provisions of this Agreement.
7.9. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Virginia exclusive of its choice
of law rules.
THE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE
EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE
UNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT
EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH
THE CORPORATION.
7.10. Amendments. No alterations or additions to this Agreement shall
be binding unless in writing and signed by both the parties.
7.11. Genders. Whenever reasonably necessary, pronouns of any gender
shall be deemed synonymous, as shall singular and plural pronouns.
13
14
7.12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
\s\▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
MAXIMUS, INC.
By: \s\▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
14