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MARK L. WETZEL EMPLOYMENT AGREEMENT

Executive Employment Agreement

MARK L. WETZEL EMPLOYMENT AGREEMENT | Document Parties: DuPont Fabros Technology, Inc | Maryland General Corporation You are currently viewing:
This Executive Employment Agreement involves

DuPont Fabros Technology, Inc | Maryland General Corporation

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Title: MARK L. WETZEL EMPLOYMENT AGREEMENT
Governing Law: Maryland     Date: 6/17/2008
Industry: Real Estate Operations     Sector: Services

MARK L. WETZEL EMPLOYMENT AGREEMENT, Parties: dupont fabros technology  inc , maryland general corporation
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Exhibit 10.1

MARK L. WETZEL

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) is dated as of June 13, 2008, by and between DuPont Fabros Technology, Inc., a Maryland corporation (the “ Company ”), and Mark L. Wetzel (the “ Executive ”).

WHEREAS, the Company desires to employ the Executive as its Executive Vice President, Chief Financial Officer and Treasurer and the Executive desires to accept such employment, on the terms set forth below.

Accordingly, the parties hereto agree as follows:

1. Term . The Company hereby employs the Executive, and the Executive hereby accepts such employment for an initial term commencing as of the later of (a) date hereof and (b) the date that the Executive commences employment with the Company, and ending on the third anniversary of this Agreement, unless sooner terminated in accordance with the provisions of Section 4 or Section 5 (the period during which the Executive is employed hereunder being hereinafter referred to as the “ Term ”). If either the Company or Executive does not wish to renew this Agreement when it expires at the end of the initial or any renewal term hereof as hereinafter provided, or if either the Company or Executive wishes to renew this Agreement on different terms than those contained herein, it or he shall give written notice in accordance with Section 10.4 below of such intent to the other party at least sixty (60) days prior to the expiration of the Term. In the absence of such notice, this Agreement shall be renewed on the same terms and conditions contained herein for a term of one (1) year from the date of expiration. The parties expressly agree that designation of a term and renewal provisions in this Agreement does not in any way limit the right of the parties to terminate this Agreement at any time as hereinafter provided. Reference herein to the Term shall refer both to the initial term and any renewal term as the context requires.

2. Duties .

2.1 Services as an Employee . The Executive, in his capacity as Executive Vice President, Chief Financial Officer and Treasurer, shall faithfully perform for the Company the duties of said office and shall perform such other duties of an executive, managerial or administrative nature, within the scope of authority commensurate with a chief financial officer of a public company, as shall be specified and designated from time to time by the Company’s President and Chief Executive Officer (including the performance of services for, and serving on the Board of Directors of, any subsidiary or affiliate of the Company without any additional compensation). The Executive shall report to the Chief Executive Officer. The Executive shall devote substantially all of the Executive’s business time and effort to the performance of the Executive’s duties hereunder. In no event shall the prior sentence prohibit the Executive from

 


(i) performing charitable activities, (ii) delivering lectures at educational institutions or professional or corporate associations, or (iii) any other activities approved in advance by the President and Chief Executive Officer, so long as such activities do not contravene the prior sentence. Without the prior approval of the Company’s Board of Directors (the “ Board ”), Executive shall not serve in any executive capacity or as a member of the governing board of any private or public for-profit company. Executive’s principal place of employment shall be at the principal executive offices of the Company in Washington, D.C. or in such other location in the Washington, D.C. metropolitan area to which the Company may from time to time relocate its principal executive offices.

2.2 Additional Agreements . Simultaneously with the execution of this Agreement, the Company and the Executive shall enter into an Indemnification Agreement in substantially the form attached as Exhibit A (the “ Indemnification Agreement ”).

3. Compensation and Benefits .

3.1 Salary . The Company shall pay the Executive during the Term an annual salary at the rate of Two Hundred Seventy-Five Thousand Dollars ($275,000) per annum (the “ Annual Salary ”), payable at times and in the manner consistent with the Company’s general policies for its senior executives and subject to regular deductions and withholdings as required by law. The Annual Salary may be increased annually by an amount as may be approved by the Board or the Compensation Committee of the Board (the “ Compensation Committee ”), and, upon such increase, the increased amount shall thereafter be deemed to be the Annual Salary for purposes of this Agreement. Under no circumstances shall the Annual Salary be reduced below the Annual Salary paid to the Executive in the immediately preceding twelve (12) month period without the Executive’s consent, other than, beginning on the 18 th month anniversary of the commencement of the Term, for across-the-board reductions generally applicable to the Company’s senior executives.

3.2 Incentive Compensation . The Executive will be eligible to participate in any short-term and long-term incentive compensation plans, annual bonus plans and such other management incentive programs or arrangements of the Company approved by the Board or Compensation Committee that are generally available to the Company’s senior executives. Any incentive compensation shall be subject to, and paid in accordance with, the terms and conditions of the applicable plans, programs and arrangements.

(i) Short-Term Incentive Compensation . During the Term, the Executive shall be entitled to participate in the Company’s short-term incentive compensation plan (a “ STIP ”), with such opportunities as may be determined by the Compensation Committee in its sole discretion (each, a “ Target Bonus ”); provided , however , that for the bonus year ending December 31, 2008, a Target Bonus opportunity of 60% of the Executive’s Annual Salary, with a maximum opportunity of 120%, will be pro rated for the period from the Effective Date to December 31, 2008, and thereafter during the Term the Executive will participate at an annual Target Bonus opportunity of 60% of his Annual Salary (as may be increased but not decreased, except for across-the-board reductions generally applicable to the Company’s senior executives from time to time).

(ii) Long-Term Incentive Compensation . During the Term, the Executive shall

 

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be entitled to participate in the Company’s long-term incentive compensation plan with such opportunities, if any, as may be determined by the Compensation Committee. During the Term, equity awards granted by the Compensation Committee would be subject to the terms of the respective award agreements evidencing such grants, as such terms are determined by the Compensation Committee, and the applicable plan or program.

(iii) Payment . Payments under any of the Company’s incentive and other compensation plans, if earned, shall be paid when incentive compensation is paid to the Company’s senior executives in accordance with the terms of the applicable plans, programs or arrangements.

3.3 Equity-Based Awards . Effective on the date that the Executive begins employment, the Company shall issue to the Executive, and the Executive agrees to accept that number of shares of Company common stock equal to Five Hundred Thousand Dollars ($500,000) divided by the closing price of a share of common stock of the Company on the New York Stock Exchange on the date that the Executive commences employment with the Company. Such shares of common stock shall be subject to forfeiture and shall vest in three equal installments on each of the first three anniversaries of the date that the Executive commences employment with the Company.

3.4 Benefits – In General . The Executive shall be permitted during the Term to participate in any group life, hospitalization or disability insurance plans, medical, dental, vision and other health programs, 401(k) retirement savings plan and similar benefits that may be available to other senior executives of the Company generally, on the same terms as may be applicable to such other executives, in each case to the extent that the Executive is eligible under the terms of such plans or programs.

3.5 Vacation . During the Term, the Executive shall be entitled to (i) vacation of twenty (20) working days per year, (ii) sick and personal leave available to other senior executives of the Company generally, and (iii) holidays recognized by the Company. The Executive’s entitlement to vacation and sick and personal leave will be subject to the Company’s accrual and carry-over rules applicable to senior executives of the Company generally.

3.6 Expenses . The Company shall pay or reimburse the Executive for all ordinary and reasonable out-of-pocket expenses actually incurred (and, in the case of reimbursement, paid) by the Executive during the Term in the performance of the Executive’s services under this Agreement, provided that the Executive submits such expenses for payment or reimbursement in accordance with the policies applicable to senior executives of the Company generally.

3.7 Relocation and Other Expenses .

 

  (i) Executive shall be required to relocate to the greater Washington, D.C. metropolitan area within a period of time to be agreed upon by the Company’s Chief Executive Officer and the Executive. In connection with such relocation, Executive shall be eligible to participate in the Company’s Relocation Program and eligible for reimbursement of expenses of up to $150,000, exclusive of any “gross up” amounts paid to applicable tax authorities.

 

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  (ii) In addition, the Company shall reimburse Executive, up to an amount equal to $25,000, for reasonable out-of-pocket expenditures for interim living and travel arrangements, incurred during the period ending on the earlier of (a) the six-month anniversary following the commencement of Executive’s employment with the Company, and (b) the date that Executive relocates to the greater Washington, D.C. metropolitan area.

4. Termination Due to Death or Disability .

4.1 Death . In the event of Executive’s death, all obligations of the Company and Executive under Sections 1 through 3 will immediately cease except for obligations which expressly continue after death, and the Company will pay Executive’s beneficiary or estate, and Executive’s beneficiary or estate will be entitled to receive, the following:

 

  (i) Executive’s Compensation Accrued at Termination (as defined in section 6.3);

 

  (ii) In lieu of any cash bonus payment under Section 3.2 for the year in which Executive dies, and without duplication with respect to Compensation Accrued at Termination to which Executive is entitled, a Partial Year Bonus (as defined in Section 6.6);

 

  (iii) The vesting and, as applicable, exercisability of stock options, Restricted Stock Units (“ RSUs ”), common stock subject to forfeiture and other equity awards held by Executive at termination of employment, and all other terms of such awards, shall be governed by the plans, programs, agreements and other documents pursuant to which such awards were granted and;

 

  (iv) All other rights under any other compensatory or benefit plan shall be governed by the terms and conditions of such plan. In addition, at the Company’s expense, Executive’s spouse and dependent children shall be entitled to continuation of health insurance coverage (i.e., medical, dental and vision) for a period of one (1) year.

4.2 Disability . The Company may terminate the employment of Executive hereunder due to the Disability (as defined in Section 6.4) of Executive. Upon termination of employment, all obligations of the Company and Executive under Sections 1 through 3 will immediately cease and the Company will pay Executive, and Executive will be entitled to receive, the following:

 

  (i) Executive’s Compensation Accrued at Termination;

 

  (ii) In lieu of any cash bonus payment under Section 3.2 for the year in which Executive becomes disabled, and without duplication with respect to Compensation Accrued at Termination to which Executive is entitled, a Partial Year Bonus;

 

  (iii)

The vesting and, as applicable, exercisability of stock options, RSUs, common stock subject to forfeiture and other equity awards held by Executive at

 

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termination of employment and all other terms of such awards shall be governed by the plans, programs, agreements and other documents pursuant to which such awards were granted;

 

  (iv) Disability benefits shall be payable in accordance with the Company’s plans, programs and policies; and

 

  (v) All other rights under any other compensatory or benefit plan shall be governed by the terms and conditions of such plan. In addition, at the Company’s expense, Executive and his spouse and dependent children shall be entitled to continuation of health insurance coverage (i.e., medical, dental and vision) for a period of one (1) year. Notwithstanding anything to the contrary, any benefits under this Section 4.2 shall be offset by any disability benefits received by the Executive.

4.3 Other Terms of Payment Following Death or Disability . Nothing in this Section 4 shall limit the benefits payable or provided in the event Executive’s employment terminates due to death or Disability under the terms of plans or programs of the Company more favorable to Executive (or his beneficiaries) than the benefits payable or provided under this Section 4 (except in the case of any cash bonus payment under Section 3.2 for the year of termination in lieu of which a Partial Year Bonus is paid hereunder), including plans and programs adopted after the date of this Agreement. Subject to Section 5.6, amounts payable under this Section 4 will be paid as promptly as practicable following termination with Executive’s employment.

4.4 Conflicts . In the event of any conflict between the terms of this Section 4 and the terms of any then-applicable plans or programs of the Company, the terms of this Agreement shall control.

5. Termination of Employment For Reasons Other Than Death or Disability .

5.1 Termination by the Company for Cause . The Company may terminate the employment of Executive hereunder for Cause (as defined in Section 6.1) at any time. At the time Executive’s employment is terminated for Cause, all obligations of the Company and Executive under Sections 1 through 3 will immediately cease, and the Company will pay Executive, and Executive will be entitled to receive, the following:

 

  (i) Executive’s Compensation Accrued at Termination;

 

  (ii) The vesting and, as applicable, exercisability of stock options, RSUs, common stock subject to forfeiture and other equity awards held by Executive at termination of employment and all other terms of such awards shall be governed by the plans, programs, agreements and other documents pursuant to which such awards were granted; and

 

  (iii) All other rights under any other compensatory or benefit plan shall be governed by the terms and conditions of such plan.

5.2 Termination by Executive Other Than For Good Reason . Executive may

 

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terminate his employment hereunder voluntarily for reasons other than Good Reason (as defined in Section 6.5) at any time upon at least 30 days’ written notice to the Company. At the time Executive’s employment is terminated by Executive other than for Good Reason, all obligations of the Company and Executive under Sections 1 through 3 will immediately cease, and the Company will pay Executive, and Executive will be entitled to, the same compensation and rights specified in Section 5.1.

5.3 Termination by the Company Without Cause . The Company may terminate the employment of Executive hereunder without Cause upon at least 30 days’ written notice to Executive. At the time Executive’s employment is terminated by the Company (i.e., at the expiration of such notice period), all remaining obligations of the Company and Executive under Sections 1 through 3 will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:

 

  (i) Executive’s Compensation Accrued at Termination;

 

  (ii) A single severance payment in cash in an aggregate amount equal to two times the sum of (i) the Annual Salary plus (ii) the average of the three (3) most recent payments under the Company’s STIP, if any, or amounts approved for payment under the Company’s STIP to Executive (or, if fewer than three STIP payments have been paid or approved for payment to Executive, the highest payment, if any, paid or approved for payment to Executive during the Term);

 

  (iii) In lieu of any cash bonus payment under Section 3.2 for the year in which Executive’s employment terminates, and without duplication with respect to Compensation Accrued at Termination to which Executive is entitled, a Partial Year Bonus;

 

  (iv) All stock options, common stock subject to forfeiture, RSUs and other equity awards held by Executive at termination of employment shall become fully vested and exercisable or free from repurchase restrictions or other risk of forfeiture, as applicable, and all other terms of such awards shall be governed by the plans, programs, agreements and other documents pursuant to which such equity awards were granted;

 

  (v) Any performance objectives upon which the earning of performance-based restricted stock, RSUs, other equity awards and other long-term incentive awards (including cash awards) is conditioned shall be deemed to have been met at the target level at the date of termination, and paid on a pro-rata basis based on the time completed during the performance period; and

 

  (vi)

All other rights under any other compensatory or benefit plan shall be governed by such plan. In addition, at Company’s expense, Executive and his spouse and dependent children shall be entitled to continuation of health insurance coverage (i.e., medical, dental and vision) under the Company’s group health plan(s) in which the Executive was participating on the date of termination or if such plan(s)

 

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have been terminated, in the plan(s) in which senior executives of the Company participate for a period of twelve (12) months after the date Executive’s employment terminates.

Payments and benefits under this Section 5.3 are subject to Section 5.6.

5.4 Termination by Executive for Good Reason . Executive may terminate his employment hereunder for Good Reason upon 30 days’ written notice to the Company which notice must be given within 90 days of the Executive’s actual knowledge of the occurrence of the condition that is the basis for such Good Reason; provided, however, that if the basis for such Good Reason is correctible and the Company has corrected the basis for such Good Reason within 30 days after receipt of such notice, Executive may not then terminate his employment for Good Reason with respect to the matters addressed in the written notice. At the time Executive’s employment is terminated by Executive for Good Reason (i.e., at the expiration of such notice period), all obligations of the Company and Executive under Sections 1 through 3 will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the same compensation and rights specified in Section 5.3(i) – (vi) and subject to Section 5.6.

If any payment or benefit under this Section 5.4 is based on Annual Salary or other level of compensation or benefits at the time of Executive’s termination and if a reduction in such Annual Salary or other level of compensation or benefit was the basis for Executive’s termination for Good Reason, then the Annual Salary or other level of compensation in effect before such reduction shall be used to calculate payments or benefits under this Section 5.4.

5.5 Other Terms Relating to Certain Terminations of Employment . In the event Executive’s employment terminates for any reason set forth in Section 5.1 through 5.4, Executive will be entitled to the benefit of any terms of plans or agreements applicable to Executive which are more favorable than those specified in this Section 5 (except without duplication of payments or benefits, including in the case of any cash bonus payment under Section 3.2 for the year of termination in lieu of which a Partial Year Bonus is paid hereunder). Except as otherwise provided under Section 5.6, amounts payable under this Section 5 following Executive’s termination of employment, other than those expressly payable on a deferred or installment basis, will be paid as promptly as practicable after such a termination of employment. All expenses reimbursable pursuant to Section 3.6 shall be reimbursed by the end of the calendar year after the calendar year in which the expense was incurred.

5.6 Limitations Under Code Section 409A . Anything in this Agreement to the contrary notwithstanding, if (A) on the date of termination of Executive’s employment with the Company or a subsidiary, any of the Company’s stock is publicly traded on an established securities market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (the “ Code ”)), (B) Executive is determined to be a “specified employee” within the meaning of Section 409A(a)(2)(B) of the Code, (C) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section 1.409A-1(b)(9)(iii) and (D) such delay is required to avoid the imposition of the tax set forth in Section 409A(a)(1) of the Code as a result of such termination, the Executive would receive any payment that, absent

 

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the application of this Section 5.6, would be subject to interest and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(2)(B)(i) of the Code (such additional tax, together with any such interest and penalties, are hereinafter referred to as the “ Additional Tax ”), then no such payment shall be payable prior to the date that is the earliest of (1) 6 months after the Executive’s termination date, (2) the Executive’s death or (3) such other date as will cause such payment not to be subject to such interest and additional tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as of the date of the initial payment plus interest equal to the rate provided in Section 1274(b)(2)(B) of the Code).

It is the intention of the parties that payments or benefits payable under this Agreement not be subject to Additional Tax. To the extent such potential payments or benefits could become subject to such Section, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the economic benefits described herein in a manner that does not result in such tax being imposed.

6. Definitions Relating to Termination Events .

6.1 “Cause”. For purposes of this Agreement, “ Cause ” shall mean Executive’s:

 

  (i) conviction of a felony (other than a violation of traffic laws) or a crime involving moral turpitude;

 

  (ii) willful commission of any act of theft, fraud (including with respect to the Company’s accounting records and financial statements), embezzlement or misappropriation against the Company or one of its subsidiaries or affiliates;

 

  (iii) willful and continued failure to substantially perform Executive’s duties hereunder (other than such failure resulting from Executive’s incapacity due to physical or mental illness), which failure is not remedied within 30 calendar days after written demand for substantial performance is delivered by the Company which specifically identifies the manner in which the Company believes that Executive has not substantially performed Executive’s duties; or

 

  (iv) violation of the Company’s Code of Business Conduct and Ethics.

No act, or failure to act, on the part of Executive shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to Executive a copy of the resolution duly adopted by the Board finding that, in the good faith opinion of the Board, Executive was found to have engaged in the conduct set forth above.

6.2 “Change in Control”. For purposes of this Agreement, a “ Change in Control ” means the following:

 

  i. A transaction or series of transactions whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company and immediately after such acquisition possesses more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or

 

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  ii. During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Section 6.2(i) hereof or Section 6.2(iii) hereof) whose election by the Board 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 two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

  iii. The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction:

 

  (A) Which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “ Successor Entity ”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

 

  (B)

After which no person or group (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) beneficially owns (within

 

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the meaning of Rule 13d-3 under the Exchange Act) voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this Section 6.2(iii)(B) as beneficially owning 50% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or

 

  iv. The Company’s stockholders approve a liquidation or dissolution of the Company and all material contingencies to such liquidation or dissolution have been satisfied or waived.

6.3 “Compensation Accrued at Termination”. For purposes of this Agreement, “ Compensation Accrued at Termination ” means the following:

 

  (i) The accrued and unpaid portion of the Annual Salary at the rate payable, in accordance with Section 3.1 hereof, at the date of Executive’s termination of employment, through such date of termination, payable in accordance with the Company’s regular pay schedule;

 

  (ii) Except as otherwise provided in this Agreement, all earned and unpaid and/or vested, nonforfeitable amounts owing or accrued at the date of Executive’s termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 3.2, 3.3 and 3.4 hereof in which Executive theretofore participated, payable in accordance with the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted or accrued;

 

  (iii) Reasonable business expenses and disbursements incurred by Executive prior to Executive’s termination of employment, to be reimbursed to Executive, as authorized under Section 3.6, in accordance the Company’s reimbursement policies as in effect at the date of such termination; and

 

  (iv) To the extent consistent with the Company’s policies for executives generally, compensation for vacation time accrued but unused at the date of the Executive’s termination of employment.

6.4 “Disability”. For purposes of this Agreement, “ Disability ” means the Executive is unable due to a physical or mental condition to perform the essential functions of his position with or without reasonable accommodation for six (6) months in the aggregate during any twelve (12) month period or based on the written certification by two licensed physicians of the likely continuation of such condition for such period, one selected by the Company or its insurance carrier and the other selected by the Executive or his legal representative. This definition shall be interpreted and applied consistent with the Americans with Disabilities Act, the Family and Medical Leave Act, Section 409A of the Code and other applicable law.

 

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6.5 “Good Reason”. For purposes of this Agreement, “ Good Reason ” shall mean, without Executive’s express written consent, the occurrence of any of the following circumstances unless, if correctable, such circumstances are fully corrected within 30 days of the notice of termination given in respect thereof:

 

  (i) The assignment to Executive of duties materially inconsistent with Executive’s position and status hereunder, or an alteration, materially adverse to Executive, in the nature of Executive’s duties, responsibilities or authorities, Executive’s positions or the conditions of Executive’s employment from those specified in Section 2 or otherwise hereunder (other than inadvertent actions which are promptly remedied), including, without limitation, the relocation of Executive’s place of employment further than 50 miles from the Company’s current headquarters location or the assignment of Executive to any place of employment other than the Company’s headquarters; except the foregoing shall not constitute Good Reason if occurring in connection with the termination of Executive’s employment for Cause, Disability, as a result of Executive’s death, or as a result of action by or with the consent of Executive;

 

  (ii) a material reduction by the Company in Executive’s Annual Salary, other than for across-the-board reductions generally applicable to the Company’s senior executives; provided that any reduction of five percent (5%) or less shall not be deemed material;

 

  (iii) the failure of the Company to obtain a written agreement from any successor to the Company to fully assume the Company’s obligations and to perform under this Agreement; or

 

  (iv) any other failure by the Company to perform any material obligation under, or breach by the Company of any material provision of, this Agreement.

6.6 “Partial Year Bonus”. For purposes of this Agreement, a “ Partial Year Bonus ” is an amount equal to the Executive’s Target Bonus, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination (disregarding any period of Disability during that year) and the denominator of which is the total number of days in the year of termination.

7. Excise Tax-Related Provisions . In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the “ Severance Payments ”), if any of such Severance Payments are subject to the tax (the “ Excise Tax ”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive at the time specified in Section 7(iii) hereof an additional amount (the “ Gross-Up Payment ”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 7, shall

 

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be equal to the Total Payments; provided, however that in the event the aggregate value of the Total Payments exceeds three times the Executive’s “base amount,” as defined in Section 280G(b)(3) of the Code, (the “Parachute Threshold”) by an amount equal to less than ten percent (10%) of the Parachute Threshold, one or more of the Total Payments shall be reduced to an aggregate amount that is two hundred ninety-nine percent (299%) of the Executive’s “base amount.” Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Change in Control. Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. For the avoidance of doubt, in no event shall the Company be required to pay to Executive any amount under this Section 7 with respect to any taxes or interest that may arise as a result of Section 409A of the Code.

 

  (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax:

 

  (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (which, together with the Severance Payments, constitute the “ Total Payments ”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel, public accounting firm or compensation consultant the selection of which was approved under Section 7(iv) such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;

 

  (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 7(i)(A) hereof); and

 

  (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized tax counsel, public accounting firm or compensation consultant the selection of which was approved under Section 7(iv) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

 

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  (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Executive’s marginal rate of taxation in the state and locality of Executive’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive’s employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined.

 

  (iii) The payments provided for in this Section 7 shall be made not later than the thirtieth day following the date of Executive’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the sixtieth day after the date of Executive’s termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, the Executive shall repay such excess to the Company within fifteen (15) days after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).

 

  (iv) All determinations under this Section 7 shall be made at the expense of the Company by a nationally recognized tax counsel, public accounting firm or compensation consultant selected by the Company and subject to the approval of Executive, which approval shall not be unreasonably withheld. Such determinations shall be binding upon Executive and the Company.

 

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8. Non-Competition and Non-Disclosure; Executive Cooperation; Non-Disparagement .

8.1 Noncompetition Agreement . Simultaneously with the execution of this Agreement, Executive and the Company shall enter into a Non-Competition, Non-Solicitation and Confidentiality Agreement in substantially the form attached as Exhibit B (the “ Non-Competition Agreement ”).

8.2 Ownership of Work . Executive will promptly disclose in writing to the Company all inventions, discoveries, developments, improvements and innovations (collectively referred to as “ Inventions ”) that Executive has conceived or made during the Term; provided, however, that in this context “Inventions” are limited to those which (i) relate in any manner to the existing or contemplated business activities of the Company and its affiliates; (ii) are suggested by or result from Executive’s work at the Company; or (iii) result from the use of the time, materials or facilities of the Company and its affiliates. All Inventions will be the Company’s property rather than Executive’s. Should the Company request it, Executive agrees to sign any document that the Company may reasonably require to establish ownership in any Invention.

8.3 Cooperation With Regard to Litigation . Executive agrees to cooperate with the Company, during the Term and thereafter (including following Executive’s termination of employment for any reason), by making himself available to testify on behalf of the Company or any subsidiary or affiliate of the Company, in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to assist the Company, or any subsidiary or affiliate of the Company, in any such action, suit, or proceeding, by providing information and meeting and consulting with the Board or its representatives or counsel, or representatives or counsel to the Company, or any subsidiary or affiliate of the Company, as may be reasonably requested and after taking into account Executive’s post-termination responsibilities and obligations. The Company agrees to reimburse Executive, on an after-tax basis, for all reasonable expenses actually incurred in connection with his provision of testimony or assistance and to pay a mutually agreed hourly fee to Executive for any assistance provided after termination of Executive’s employment.

8.4 Non-Disparagement . Executive shall not, at any time during the Term and thereafter make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage or be damaging to the Company, its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations. The members of the Board, the executive officers of the Company and any personnel who are generally responsible for communications with investors and the public (including, without limitation, the Company’s public relations and investor relations personnel) shall not, at any time during the Term and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally or otherwise, or take any action which may, directly or indirectly, disparage or be damaging to Executive or his reputation. The Company shall be liable for any such statement, representation, communication or action by any such member of the Board, executive officer or personnel. Notwithstanding the foregoing, nothing in this Agreement shall preclude Executive or such members of the Board, executive officers or personnel from making truthful statements that are required by applicable law, regulation or legal process, including truthful statements in connection with an action, suit or other proceeding to enforce Executive’s or the Company’s respective rights under this Agreement.

 

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8.5 Release of Employment Claims . Executive agrees, as a condition to receipt of any termination payments and benefits provided for in Sections 4 and 5 herein (other than Compensation Accrued at Termination) (the “ Termination Benefits ”), that he will execute a general release in substantially the form attached hereto as Exhibit C .

8.6 Remedies . Executive agrees that any breach of the terms of this Section 8 would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law; Executive therefore also agrees that in the event of said breach or any threat of breach and notwithstanding Section 9 the Company shall be entitled to seek an immediate injunction and restraining order from a court of competent jurisdiction to prevent such breach and/or threatened breach and/or continued breach by Executive and/or any and all persons and/or entities acting for and/or with Executive, without having to prove damages. The availability of injunctive relief shall be in addition to any other remedies to which the Company may be entitled at law or in equity, but remedies other than injunctive relief may only be pursued in an arbitration brought in accordance with Section 9. The terms of this paragraph shall not prevent the Company from pursuing in an arbitration any other available remedies for any breach or threatened breach of this Section 8, including but not limited to the recovery of damages from Executive. Executive hereby further agrees that, if it is ever determined, in an arbitration brought in accordance with Section 9, that willful actions by Executive have constituted wrongdoing that results in an accounting restatement due to the material noncompliance of the Company with financial reporting requirements in any report or statement filed by the Company with the U.S. Securities and Exchange Commission, then the Company, or its successor, as appropriate, may recover all of any bonus or other incentive-based or equity based compensation received by Executive during the 12-month period following the first public issuance or filing with the U.S. Securities and Exchange Commission, whichever first occurs, of the financial document embodying such financial reporting requirement, less the amount of any net tax owed by Executive with respect to such award or payment over the tax benefit to Executive from the repayment or return of the award or payment, pursuant to Sections 5.3 or 5.4. The Company or its successor may, in its sole discretion, affect any such recovery by (i) obtaining repayment directly from Executive; (ii) setting off the amount owed to it against any amount or award that would otherwise be payable by the Company to Executive; or (iii) any combination of (i) and (ii) above.

9. Governing Law; Disputes; Arbitration .

9.1 Governing Law . This Agreement is governed by and is to be construed, administered, and enforced in accordance with the laws of the District of Columbia, without regard to conflicts of law principles. If under the governing law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule, regulation, ordinance, or other principle of law, such portion shall be deemed to be modified or altered to the extent necessary to conform thereto or, if that is not possible, to be omitted from this Agreement. The invalidity of any such portion shall not affect the force, effect, and validity of the remaining portion hereof. If any court determines that any provision of Section 8 is unenforceable because of the duration or geographic scope of such provision, it is the parties’ intent that such court shall

 

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have the power to modify the duration or geographic scope of such provision, as the case may be, to the extent necessary to render the provision enforceable and, in its modified form, such provision shall be enforced.

9.2 Arbitration . Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in the District of Columbia by a single arbitrator in accordance with the Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association in effect at the time of su


 
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