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Exhibit 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
as of this 11 th day of December, 2008 by and between Telos Corporation ,
a Maryland corporation, for itself and its subsidiary companies,
divisions, affiliates and operating entities (the "Company") and
Robert J. Marino (the "Executive").
WITNESSETH THAT :
WHEREAS, the Company and the Executive desire to enter into this
Agreement pertaining to the employment of the Executive by the
Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Executive and the Company hereby agree as follows:
1. Performance of Services . The Executive’s
employment with the Company shall be subject to the following:
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(a)
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Subject to the terms of this
Agreement, the Company hereby agrees to employ the Executive as its
Executive Vice President, Special Projects during the Agreement
Term (as defined below).
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(b)
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During the Agreement Term, the
Executive shall devote full time (reasonable sick leave and
vacations excepted) and best efforts, energies and talents to
serving the Company.
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(c)
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The Executive agrees to perform his
duties faithfully and efficiently subject to the direction of the
Company. The Executive will have such authority, power,
responsibilities and duties as are inherent in such position and
necessary to carry out such responsibilities and the duties
required hereunder.
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(d)
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Notwithstanding the foregoing,
during the Agreement Term, the Executive may devote reasonable time
to activities other than those required under this Agreement,
including activities involving professional, charitable,
educational, religious and similar types of organizations, speaking
engagements, membership on the boards of directors of other profit
or not-for-profit organizations, and similar activities, to the
extent that such other activities do not, in the judgment of the
Company, inhibit or prohibit the performance of the
Executive’s duties under this Agreement or conflict in any
material way with the Company’s business.
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(e)
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The Executive shall not be required
to perform services under this Agreement during any period in which
determined as Disabled (as defined below).
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(f)
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The "Agreement Term" shall be the
period beginning on December 11, 2008, for a one year period,
and thereafter automatically renewing for consecutive one year
periods unless terminated in accordance with the provisions
hereof.
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2. Compensation and Benefits . While the
Executive is employed by the Company pursuant to this Agreement,
the Company shall compensate him for his services as
follows:
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(a)
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Base Salary . During the
Agreement Term the Executive shall receive an annual base salary of
no less than $236,178 (the "Salary"), payable in accordance with
the Company’s payroll cycle.
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(b)
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Annual Bonus . The Company
shall provide to the Executive an annual bonus opportunity, based
upon the Company’s annual bonus plan, and performance
achievements of the Company and of the Executive. Any annual bonus
for the Executive in each fiscal year shall be determined by the
Management Development and Compensation Committee, subject to
approval by the Board of Directors, and shall be based upon the
annual bonus plan actual performance achieved by the Company and by
the Executive in such fiscal year as compared with the
planned/expected performance of the Company and the Executive for
such fiscal year. Any such annual bonus shall be paid to the
Executive as soon as practicable following its approval.
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(c)
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Stock Options and Restricted
Stock Grants . The Executive shall be eligible for
additional stock options and restricted stock grants under any of
the Company’s stock option and restricted stock plans in an
amount determined by the Management Development and Compensation
Committee, subject to approval by the Board of Directors, and which
is commensurate with the level of option awards and stock grants
made to other senior Executives of the Company. Such options and/or
grants shall be subject to the terms and conditions of the
applicable standard stock option and restricted stock plans and
agreements adopted by the Company.
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(d)
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Expense Reimbursement .
While the Agreement is in effect, the Company will reimburse the
Executive for all reasonable and necessary expenses incurred by the
Executive in connection with the performance of his duties for the
Company. Such reimbursement is subject to the submission to the
Company by the Executive of appropriate documentation and/or
vouchers, and will be made in accordance with the customary
procedures of the Company for expense reimbursement, as may from
time to time be established.
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(e)
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Vacation . While the
Agreement is in effect, in each fiscal year of the Company, the
Executive shall be entitled to 6 weeks paid vacation time, which
vacation shall be cumulative from year to year until corporate
maximum occurs.
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(f)
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Other Benefits . The
Executive shall be eligible to participate in any and all plans
maintained by the Company to provide benefits for its salaried
senior Executives, and, including, without limitation, any pension,
profit sharing or other retirement plan, any life, accident,
disability, medical, hospital or similar group insurance program
and any other benefit plan, subject to the normal terms and
conditions of such plans.
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3. Termination . The Executive’s
employment with the Company pursuant to this Agreement may
terminate under the following circumstances.
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(a)
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Death . The
Executive’s employment hereunder shall terminate upon his
death.
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(b)
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Disability . If the
Executive becomes Disabled, the Company may terminate
Executive’s employment. For purposes of this Agreement, the
Executive shall be deemed to be "Disabled" if (i) eligible for
disability benefits under the Company’s long-term disability
plan, or (ii) has a physical or mental disability which
renders Executive incapable, after reasonable accommodation, of
performing substantially all of Executive’s duties hereunder
for a period of 180 days (which need not be consecutive) in any
12-month period. In the event of a dispute as to whether the
Executive is Disabled, the Company may, at its expense, refer
Executive to a licensed practicing physician of the Company’s
choice and the Executive agrees to submit to such tests and
examination as such physician shall deem customary and
appropriate.
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(c)
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Cause . The Company may
terminate the Executive’s employment hereunder immediately
and at any time for Cause by written notice to the Executive
detailing the basis for the Cause termination. For purposes of this
Agreement, "Cause" means (i) gross negligence or willful and
continued failure by the Executive to substantially perform his
duties as an Executive of the Company (other than any such failure
resulting from incapacity due to physical or mental illness);
(ii) Executive’s dishonesty, fraudulent
misrepresentation, willful misconduct, malfeasance, violation of
fiduciary duty relating to the business of the Corporation; or
(iii) conviction of a felony.
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(d)
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Without Cause . The
Company may terminate the Executive’s employment hereunder
immediately and at any time without Cause by written notice to the
Executive.
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(e)
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Termination of Executive .
The Executive may terminate his employment hereunder at any time
for any reason by giving the Company prior written notice not less
than 30 days prior to such termination.
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(f)
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Mutual Agreement . This
Agreement may be terminated at any time by mutual written agreement
of the parties.
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(g)
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Date of Termination .
"Date of Termination" means the last day that the Executive is
employed by the Company under the terms of this Agreement, provided
that Executive’s employment is terminated in accordance with
one of the foregoing provisions.
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(h)
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Change in Control means an
occasion upon which (i) any "person" (as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act) other
than a Director or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation controlled by
the Company, acquires (either directly and/or through becoming the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act)), directly or indirectly, securities of the Company
representing 50% or more of the combined voting power of the
Company’s then outstanding securities (or has acquired
securities representing 50% or more of the combined voting power of
the Company’s then outstanding securities during the 12-month
period ending on the date of the most recent acquisition of Company
securities by such person); or (ii) during any period of
twelve (12) consecutive months (not including any period prior
to the adoption 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 has entered
into
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an agreement with the Company to effect a
transaction described in clauses (i) or (iii) of this
Paragraph) whose election by the Board or nomination for election
by the Company’s shareholders was approved by a vote of at
least a majority 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 a majority thereof; or (iii) any of
(a) the Company consummates a merger, consolidation,
reorganization, recapitalization or statutory share exchange (a
"Business Combination"), other than a Business Combination which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least 50% of the combined voting power
and at least 50% of the combined total fair market value of the
securities of the Company or such surviving entity outstanding
immediately after such Business Combination, (b) the
Company’s shareholders approve a plan of complete liquidation
of the Company, or (c) the Company completes the sale or other
disposition of all or substantially all of its assets in one or a
series of transactions.
4. Rights Upon Termination . The Executive’s right
to payments and benefits under this Agreement for periods after his
Date of Termination shall be determined in accordance with the
following:
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(a)
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If the Executive’s Date of
Termination occurs for Cause, or if the Executive terminates the
Agreement in accordance with paragraph 3(e) above, the Company
shall pay to the Executive:
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(i)
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A lump-sum payment equivalent to the
remaining unpaid portion of the Executive’s Salary for the
period ending on the Date of Termination.
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(ii)
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A lump-sum payment for all accrued
and unused vacation days.
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(iii)
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Any other payments or benefits to be
provided to the Executive by the Company pursuant to any Executive
benefit plans or arrangements adopted by the Company, to the extent
such payments and benefits are earned and vested as of the Date of
Termination, or are required by law to be offered for periods
following the Executive’s Date of Termination. In addition,
any bonus which has been earned by Executive and approved by the
appropriate corporate authorities but which remains unpaid as of
the date of Executive’s termination of employment, shall be
paid to Executive at such time and in such manner as if Executive
had continued to be employed by the Company.
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(b)
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If the Company terminates the
Executive without Cause, or due to Disability, or due to death, or
after a Change in Control the Executive incurs a termination of
employment, voluntary or involuntary, for any reason, then in
addition to the amounts payable under the preceding paragraphs, the
Executive shall be entitled to:
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(i)
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Payments over a 3-month period of an
amount equal to the amount of monthly salar
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