a5555115-ex104.htm


     

    Exhibit
      10.4

     

     

    
      FIRST
        AMENDMENT TO THE

      EXECUTIVE
        EMPLOYMENT, NON-COMPETE

      AND
        CONFIDENTIALITY AGREEMENT

       

      THIS
        FIRST AMENDMENT TO THE EXECUTIVE
        EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT ("Amendment") is entered
        into this ______ day of ______________, 2007, by and between Richard A. Montoni
        (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal
        place of business in Reston, Virginia (the "Corporation") and provides as
        follows:

      


      WHEREAS,
        on or about April 24, 2006,
        the Corporation and Executive entered into an Employment Agreement;
        and

      


      WHEREAS,
        the parties desire to amend
        the Employment Agreement to comply with Section 409A of the Internal Revenue
        Code of 1986, as amended as set forth in this Amendment.

      


      NOW,
        THEREFORE, in consideration of
        these premises and intending to be legally bound, the parties agree as
        follows:

      


      1.           Section
        1.4 is hereby deleted in its entirety and substituted with the
        following:

      


      "Severance.  The
        parties agree that in the event the Corporation terminates the Executive's
        employment without Cause or the Executive terminates the employment for "Good
        Reason" (as defined in the Income Continuity Plan) prior to the expiration
        of
        the Scheduled Term, the Executive shall be entitled to the
        following:

      


      (a)
        Benefits, at the Corporation's expense, as provided under Section 1.2 for
        the
        greater of the remainder of the Scheduled Term or twelve (12)
        months.  To the extent that these payments are not exempt from Section
        409A of the Internal Revenue Code of 1986, as amended (the 'Code') under
        the
        COBRA, reimbursement, in-kind benefit, or other applicable exceptions
        thereunder, such payments shall be made at the time and in the amount required
        under the documents governing each such benefit;

      


      (b)
        Vesting of stock options and Restricted Stock Units; and

       

      (c)
        a lump
        sum, payable within 30 days following termination of employment, equal to
        the
        greater of (i) Base Salary for the remainder of the Scheduled Term or (ii)
        two
        times the sum of the Executive's Base Salary plus the lesser of his target
        bonus
        or previous year's actual bonus, which lump sum shall be considered a separate
        payment for purposes of Section 409A of the Code.  If the Executive's
        employment termination occurs in connection with a Change in Control, the
        Executive shall be entitled to receive such payments and benefits as provided
        under the Income Continuity Plan, and this Section 1.4 shall not
        apply."

      


      
        
           

        

        
           

          
            

          

        

        
           

        

         

         

      

      2.           The
        second sentence of Section 1.5 is deleted and substituted with the
        following:

      


      "If
        any
        law or the terms of any plan document (or related agreement) prevents the
        Corporation from treating the Executive as remaining in employment with the
        Corporation continuously during this period, the Corporation, within 60 days
        after the Executive terminates employment, shall pay or provide to the executive
        an amount equal to the difference between (a) and (b), where (a) and (b)
        are
        determined as follows:

      


      (a)           The
        payments or benefits the Executive would have received or been entitled to
        if
        the Executive had remained in employment with the Corporation continuously
        during the period beginning March 18, 2002 through the Effective Date;
        and

      


      (b)
        The
        payments or benefits the Executive actually received or is entitled to under
        applicable law and the terms of the applicable plan documents."

      


      3.           A
        new Section 4.12 is hereby added to the Employment Agreement as
        follows:

      


      "Distributions
        to Specified
        Employees.   Notwithstanding any provision to the contrary,
        to the extent the Executive is considered a specified employee under Section
        409A of the Code and would be entitled to a payment during the six month
        period
        beginning on the Executive's date of termination that is not otherwise excluded
        under Section 409A of the Code under the exceptions for short-term deferrals,
        separation pay arrangements, reimbursements, in-kind distributions, or an
        otherwise applicable exemption, the payment will not be made to the Executive
        until the earlier of the six month anniversary of the Executive's date of
        termination or the Executive's death."

      


      4.           A
        new Section 4.13 is hereby added to the Employment Agreement as
        follows:

      


      "Section
        409A of the
        Code.  It is the intention of the parties that this Agreement
        comply with and be administered in accordance with Section 409A of the Code
        and
        the interpretive guidance thereunder, including the exceptions for short-term
        deferrals, separation pay arrangements, reimbursements, and in-kind
        distributions. The Agreement shall be construed and interpreted in accordance
        with such intent.  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.  In
        the event that the Company does not so cooperate, the Company shall indemnify
        the Executive for any interest and additional tax arising from the application
        of Section 409A of the Code, grossed-up for any other income tax incurred
        by
        Executive related to the indemnification (i.e., indemnification of such
        additional income tax), assuming the highest marginal income tax rates apply
        to
        any taxable indemnification.  Any indemnification payment shall be
        made within ninety (90) days of the date Executive makes payment of the interest
        and/or additional tax."

      


      


      


      *           *           *

      


      
        
           

        

        
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      IN
        WITNESS WHEREOF, the undersigned
        have executed this Agreement effective as of the date first above
        written.

       

       

      
        	EXECUTIVE	 	MAXIMUS,
                Inc.
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	By	 
	Richard
                A. Montoni	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	Date	 	 	Title	 


      

      
 

      


      


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