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Exhibit 10.1
RESTATED SEVERANCE PROTECTION AGREEMENT
THIS RESTATED SEVERANCE PROTECTION AGREEMENT dated
December 12, 2008 (the " Agreement "), by and between
ICF International, Inc., a Delaware corporation (the "
Company "), and Alan Stewart (the " Executive ").
PURPOSE
The Board of Directors of the Company (the " Board ")
recognizes that the possibility of a Change in Control (as
hereinafter defined) of the Company exists and that the threat or
occurrence of a Change in Control may result in the distraction of
its key management personnel because of the uncertainties inherent
in such a situation.
The Board has determined that it is essential and in the best
interests of the Company and its stockholders to retain the
services of the Executive in the event of the threat or occurrence
of a Change in Control and to ensure the Executive’s
continued dedication and efforts in such event without undue
concern for the Executive’s personal financial and employment
security.
In order to induce the Executive to remain in the employ of the
Company, particularly in the event of the threat or occurrence of a
Change in Control, the Company entered into a Severance Protection
Agreement dated September 27, 2006 (the "2006 Agreement") to
provide the Executive with certain benefits if the
Executive’s employment is terminated as a result of, or in
connection with, a Change in Control. Subsequent to the execution
of such agreement the Internal Revenue Service issued final
regulations and guidance under Section 409A of the Internal
Revenue Code of 1986, as amended, with which the Company and the
Executive desire to have said agreement comply through a Restated
Severance Protection Agreement.
NOW, THEREFORE, in consideration of the respective agreements of
the parties contained herein, it is agreed that 2006 Agreement is
hereby restated as follows:
SECTION 1. Definitions.
For purposes of this Agreement, the following terms have the
meanings set forth below:
" Accrued Compensation " means an amount which includes
all amounts earned or accrued by the Executive through and
including the Termination Date, but not paid to the Executive on or
prior to such date, including (a) his Base Salary,
(b) reimbursement for all reasonable expenses incurred by the
Executive on behalf of the Company during the period ending on the
Termination Date, (c) all unused and unpaid vacation pay, and
(d) his Bonus Amount.
" Additional Severance Pay " means an amount equal to the
product of Executive’s Base Amount multiplied by three minus
the amount permitted to be paid pursuant to Treas. Reg.
§1.409A-1(b)(9)(iii)(A).
" Base Amount " means the
Executive’s average annual taxable W-2 compensation during
the three years (or such lesser period as the Executive has been
employed by the Company) prior to the calendar year in which the
Termination Date occurs and includes all amounts of the
Executive’s Base Salary and incentive compensation that are
deferred under any qualified or non-qualified employee benefit plan
of the Company or any other agreement or arrangement.
" Base Salary " means the Executive’s base salary
rate in effect on the Executive’s Termination Date.
" Basic Severance Pay " means an amount equal to the
Executive’s Base Amount multiplied by three; provided,
however, in no event shall such amount exceed the amount permitted
to be paid pursuant to Treas. Reg.
§1.409A-1(b)(9)(iii)(A).
" Beneficial Owner " has the meaning as used in Rule
13d-3 promulgated under the Securities Exchange Act. The terms
"Beneficially Owned" and "Beneficial Ownership" each have a
correlative meaning.
" Board " means the Board of Directors of the
Company.
" Bonus Amount " means the annual bonus, if any, paid or
payable to the Executive pursuant to any annual bonus or incentive
plan maintained by the Company in respect of the fiscal year ending
immediately prior to the fiscal year in which the Termination Date
occurs. Bonus Amount includes the short-term cash incentive portion
of the annual bonus that is subject to any deferral election but
does not include restricted stock awards, options or other
long-term equity incentive compensation awarded to Executive.
" Cause " for the termination of the Executive’s
employment with the Company shall mean any of the following:
(a) any act that would constitute a material violation of the
Company’s material written policies; (b) willfully
engaging in conduct materially and demonstrably injurious to the
Company, provided, however, that no act or failure to act, on the
Executive’s part, shall be considered "willful" unless done,
or omitted to be done, by the Executive not in good faith and
without reasonable belief that his action or omission was in the
best interest of the Company; (c) being indicted for, or if
charged with but not indicted for, being tried for (i) a crime
of embezzlement or a crime involving moral turpitude or (ii) a
crime with respect to the Company involving a breach of trust or
dishonesty or (iii) in either case, a plea of guilty or no
contest to such a crime; or (d) abuse of alcohol in the
workplace, use of any illegal drug in the workplace or a presence
under the influence of alcohol or illegal drugs in the
workplace.
" Change of Control " of the Company means, and shall be
deemed to have occurred upon, any of the following events:
(a) The acquisition by any person (as defined in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a group as defined in
Section 13(d) thereof) (other than persons acting in concert
as of August 31, 2006 who, as of such date, beneficially owned
more than twenty percent (20%) or more of the securities
entitled to vote generally in the election of directors of the
Company), of
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beneficial ownership (as defined in Rule 13d-3 of
the General Rules and Regulations under the Exchange Act) of
securities representing thirty-five percent (35%) or more of
the securities entitled to vote generally in the election of
directors of the Company, provided, however, that the following
acquisitions shall not constitute a Change in Control for purposes
of this subparagraph (a): (i) any acquisition directly from
the Company; (ii) any acquisition by the Company or any of its
Subsidiaries; (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any of its Subsidiaries; or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of subparagraph (c) below;
or
(b) Individuals who, as of August 31, 2006, constitute the
Board (the " Incumbent Board ") cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual who becomes a director of the Company
subsequent to August 31, 2006 and whose election, or whose
nomination for election by the Company’s stockholders, to the
Board was either (i) approved by a vote of at least a majority
of the directors then comprising the Incumbent Board or
(ii) recommended by a nominating committee comprised entirely
of directors who are then Incumbent Board members shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual
or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act), other
actual or threatened solicitation of proxies or consents or an
actual or threatened tender offer; or
(c) Consummation of a reorganization, merger, or consolidation
or sale or other disposition of all or substantially all of the
assets of the Company (a " Business Combination "), in each
case unless following such Business Combination, (i) all or
substantially all of the persons who were the Beneficial Owners,
respectively, of the outstanding shares and outstanding securities
entitled to voted generally in the election of directors
immediately prior to such Business Combination own, directly or
indirectly, more than fifty percent (50%) of the combined
voting power of the then outstanding securities entitled to vote
generally in the election of directors of the Company, as the case
may be, of the entity resulting from the Business Combination
(including, without limitation, an entity which, as a result of
such transaction, owns the Company or all or substantially all of
the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
outstanding securities entitled to vote generally in the election
of directors (provided, however, that for purposes of this clause
(i) any shares of common stock or such voting securities of
such resulting entity received by such Beneficial Owners in such
Business Combination other than as the result of such Beneficial
Owners’ ownership of outstanding shares or such outstanding
voting securities immediately prior to such Business Combination
shall not be considered to be owned by such Beneficial Owners for
the purposes of calculating their percentage of ownership of the
outstanding common stock and voting power of the resulting entity);
(ii) no person (excluding any entity resulting from such
Business Combination or any employee benefit
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plan (or related trust) of the Company or such
entity resulting from the Business Combination) beneficially owns,
directly or indirectly, thirty-five percent (35%) or more of
the combined voting power of the then outstanding securities
entitled to vote generally in the election of directors of such
entity resulting from the Business Combination unless such person
owned thirty-five percent (35%) or more of the outstanding
shares or outstanding securities entitled to vote generally in the
election of directors immediately prior to the Business
Combination; and (iii) at least a majority of the members of
the Board of the entity resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of
the initial agreement, or the action of the Board, providing for
such Business Combination; or
(d) Approval by the Company’s stockholders of a complete
liquidation or dissolution of the Company.
For purposes of clause (c), any person who acquires outstanding
securities entitled to vote generally in the election of directors
of the entity resulting from the Business Combination by virtue of
ownership, prior to such Business Combination, of such voting
securities of both the Company and the entity or entities with
which the Company is combined shall be treated as two persons after
the Business Combination, who shall be treated as owning such
outstanding voting securities of the entity resulting from the
Business Combination by virtue of ownership, prior to such Business
Combination of, respectively, such outstanding voting securities of
the Company, and of the entity or entities with which the Company
is combined.
" Code " means the Internal Revenue Code of 1986, as
amended.
" Company " means ICF International, Inc., a Delaware
corporation, and includes its Successors.
" Continuation Period " has the meaning set forth in
Section 3.1(b)(iii).
" Disability " as used herein shall take its meaning from
the definition set forth in any group long-term disability
insurance contract maintained by the Company under which the
Executive is covered, or, if the Company shall not maintain such
insurance, " Disability " shall mean that the Executive is
incapacitated by reason of a physical or mental illness which is
long-term in nature and which prevents the Executive from
performing the substantial and material duties of his employment
with the Company; provided that such incapacity can reasonably be
expected to prevent the Executive from working at least six
consecutive months in any twelve month period. The Company may
require the Executive to have an examination at any time for the
purpose of determining whether the Executive has a long-term
disability as described in the preceding sentence, and the
Executive agrees to submit to such examination upon request of the
Board of Directors; provided that the Company shall pay all costs
and expenses associated with such examination.
" Full Release " means a written release, which is
executed and received by the Company within 60 days of the
Termination Date, which is fully effective, not subject to
revocation, and which is in a form satisfactory to the Company (and
substantially similar to the Release set forth
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in Exhibit A attached to this Agreement),
pursuant to which the Executive fully and completely releases the
Company from all claims that the Executive may have against the
Company (other than any claims that may arise or have arisen under
this Agreement).
" Good Reason " means the occurrence after a Change in
Control of any of the events or conditions described in clauses
(a) through (f) hereof, without the Executive’s
prior written consent:
(a) any (i) material adverse change in the
Executive’s status, title, position or responsibilities
(including reporting responsibilities) from the Executive’s
status, title, position or responsibilities as in effect at any
time within 180 days preceding the date of the Change in Control or
at any time thereafter, (ii) assignment to the Executive of
duties or responsibilities which are inconsistent with the
Executive’s status, title, position or responsibilities as in
effect at any time within 180 days preceding the date of the Change
in Control or at any time thereafter, or (iii) in the case of
an Executive who is an executive officer of the Company a
significant portion of whose responsibilities relate to the
Company’s status as a public company, the failure of such
Executive to continue to serve as an executive officer of a public
company, in each case except in connection with the termination of
the Executive’s employment due to Disability, Cause, as a
result of the Executive’s death or by the Executive other
than for Good Reason;
(b) a reduction in Executive’s base salary or any failure
to pay the Executive any cash compensation to which the Executive
is entitled within fifteen (15) days after the date when
due;
(c) the imposition of a requirement that the Executive be based
(i) at any place outside a 50-mile radius from the
Executive’s principal place of employment immediately prior
to the Change in Control or (ii) at any location other than
the Company’s corporate headquarters or, if applicable, the
headquarters of the business unit by which he was employed
immediately prior to the Change in Control, except, in each case,
for reasonably required travel on Company business which is not
materially greater in frequency or duration than prior to the
Change in Control;
(d) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy with respect to the Company,
which petition is not dismissed within 60 days;
(e) any material breach by the Company of any provision of this
Agreement; or
(f) the failure of the Company to obtain, as contemplated in
Section 7, an agreement, reasonably satisfactory to the
Executive, from any Successor to assume and agree to perform this
Agreement.
Notwithstanding anything to the contrary in this Agreement, no
termination will be deemed to be for Good Reason hereunder if it
results from an isolated, insubstantial and inadvertent action not
taken by the Company in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the
Executive.
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" Notice of Termination " means a written
notice from the Company or the Executive of the termination of the
Executive’s employment which indicates the specific
termination provision in this Agreement relied upon and which sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment
under the provision so indicated; provided, however, that any such
termination of employment constitutes a "separation from service"
within the meaning of Section 409A.
" Person " has the meaning as used in Section 13(d)
or 14(d) of the Securities Exchange Act, and will include any
"group" as such term is used in such sections.
" Pro Rata Bonus " means an amount equal to any incentive
compensation that is not subject to any deferral election; that is
multiplied by a fraction, the numerator of which is the number of
days elapsed in the then fiscal year through and including the
Termination Date and the denominator of which is 365 that is
subject to the satisfaction of any established performance goals;
and that is payable at the normal time of payment pursuant to the
incentive compensation plan under which such amount is payable;
provided that the provisions of this Agreement providing for the
payment of a Pro Rata Bonus amount shall not be interpreted to call
for the payment of amounts duplicative of amounts paid as part of
the Base Amount.
" Section 409A " means Section 409A of the Code as
well as the regulations and guidance issued thereunder.
" Securities Exchange Act " means the Securities Exchange
Act of 1934, as amended.
" Subsidiary " means any corporation or entity with
respect to which another specified corporation or entity has the
power under ordinary circumstances to vote or direct the voting of
sufficient securities to elect a majority of the directors or other
managers.
" Successor " means a corporation or other entity
acquiring all or substantially all the assets and business of the
Company, whether by operation of law, by assignment or
otherwise.
" Termination Date " means (a) in the case of the
Executive’s death, the Executive’s date of death,
(b) in the case of the termination of the Executive’s
employment with the Company by the Executive for Good Reason, five
days after the date the Notice of Termination is received by the
Company, and (c) in all other cases, the date specified in the
Notice of Termination; provided that if the Executive’s
employment is terminated by the Company for Cause or due to
Disability, the date specified in the Notice of Termination will be
at least 30 days after the date the Notice of Termination is given
to the Executive; and provided further that any such termination of
employment constitutes a "separation from service" within the
meaning of Section 409A.
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SECTION 2. Term of Agreement.
The term of this Agreement (the " Term ") will commence
on December 31, 2008, and will continue in effect until
December 31, 2011; provided that on December 31, 2011 and
each anniversary of such date thereafter, the Term shall
automatically be extended for one additional year unless, not later
than October 1 of such year, the Company or the Executive
shall have given notice not to extend the Term; and further
provided that, in the event a Change in Control occurs during the
Term, the Term will be extended to the date 24 months after the
date of the occurrence of such Change in Control.
SECTION 3. Termination of Employment.
3.1 If, during the Term, the Executive’s employment with
the Company is terminated within 24 months following a Change in
Control, the Executive will be entitled to the following
compensation and benefits:
(a) If the Executive’s employment with the Company is
terminated (i) by the Company for Cause or due to Disability,
(ii) by reason of the Executive’s death or (iii) by
the Executive other than for Good Reason, the Company will pay to
the Executive or his designated beneficiary, as the case may be,
his Accrued Compensation and, if such termination is other than by
the Company for Cause, a Pro Rata Bonus.
(b) If the Executive’s employment with the Company is
involuntarily terminated by the Company for any reason other than
as specified in Section 3.1(a), the Executive will be entitled
to receive the following amounts and benefits:
(i) The Company will pay the Executive all Accrued Compensation
and any Pro Rata Bonus.
(ii) Subject to the Executive providing the Company with a Full
Release, in lieu of any further compensation for periods subsequent
to the Termination Date, the Company will pay the Executive Basic
Severance Pay and Additional Severance Pay.
(iii) Subject to the Executive providing the Company with a Full
Release and complying with his obligations under Section 7,
the Company will, for a period of 36 months following the
Termination Date (the " Continuation Period "), at its
expense provide to the Executive, the Executive’s dependents
(as defined in the Company’s insurance contracts then in
effect under which similarly situated executives are covered) and
beneficiaries the same or equivalent life insurance, medical,
dental, hospitalization, financial counseling and tax consulting
benefits (the " Continuation Period Benefits ") provided to
other similarly situated executives who continue in the employ of
the Company during the Continuation Period and their dependents and
beneficiaries. To the extent that any such Continuation Period
Benefits are subject to the provisions of Section 409A, in
compliance with Section 409A and notwithstanding any other
provision of the Company’s plans, contracts, or other
arrangements in effect from time to time: (i) the amount of
expenses eligible for reimbursement and the
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provision of in-kind benefits during any calendar
year shall not affect the amount of expenses eligible for
reimbursement or the provision of in-kind benefits in any other
calendar year; (ii) the reimbursement of an eligible expense
shall be made on or before December 31 of the calendar year
following the calendar year in which the expense was incurred;
(iii) the right to reimbursement or the right to in-kind
benefits shall not be subject to liquidation or exchange for
another benefit; and (iv) to the extent that such Continuation
Period Benefits constitute "nonqualified deferred compensation"
subject to Section 409A and the Executive is a "specified
employee" within the meaning of Section 409A, the Executive
shall pay the Company and employee, if any, costs for the first six
months following the Termination Date, and the Company shall
reimburse the Executive for such costs in the first payroll period
thereafter.
The obligations of the Company to provide the Executive and the
Executive’s dependents and beneficiaries with the
Continuation Period Benefits shall not restrict or limit the
Company’s right to terminate, amend or modify the benefits
made available by the Company to its similarly situated executives
or other employees, and following any such termination, amendment
or modification, the Continuation Period Benefits that the
Executive (and the Executive’s dependents and beneficiaries)
shall be entitled to receive shall be so terminated, amended or
modified. The Company’s obligations hereunder with respect to
the foregoing benefits will be limited to the extent that the
Executive obtains any such benefits pursuant to a subsequent
employer’s benefit plans, in which case the Company may
reduce the coverage of any benefits it is required to provide the
Executive hereunder as long as the coverages and benefits of the
combined benefit plans are no less favorable to the Executive than
the coverages and benefits required to be provided hereunder. This
Section 3.1(b)(iii) will not be interpreted so as to negate
any benefits to which the Executive or the Executive’s
dependents or beneficiaries may be entitled under any of the
Company’s employee benefit plans, programs or practices
following the Executive’s termination of employment.
(iv) The Company shall provide the Executive with outplacement
services suitable to the Executive’s position for a period of
12 months or, if earlier, until the first acceptance by the
Executive of an offer of employment.
(v) Any unvested equity interests that are not subject to
Section 409A (such as stock options and restricted stock) and
that were issued to the Executive prior to the Termination Date
will become vested but will remain exercisable for the balance of
their terms; and any unvested equity interests that are subject to
Section 409A (such as restricted units) and that were issued
to the Executive prior to the Termination Date will become vested
but not payable until their original vesting dates.
(c) If the Executive’s employment with the Company is
terminated by the Executive for Good Reason, the Executive will be
entitled to receive the following amoun
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