EXHIBIT 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Pursuant to this Amended and Restated Employment Agreement (the "Agreement")
dated February 28, 2005 ("Effective Date"), Xxxx X. Xxxx ("Executive") and
Digital Fusion, Inc., a Delaware corporation ("Company"), hereby amend and
restate Executive's Employment Agreement with Company dated May 5, 2004 ("Old
Agreement") to read in its entirety as follows:
1. Employment; Term.
(a) Employment. Subject to the terms and conditions set forth herein, the
Company agrees to employ and Executive agrees to serve as the Company's
President and Chief Operating Officer. During the term of employment,
Executive shall have such responsibilities, duties and authorities as
commensurate with presidents of similar size, and additionally, such
responsibilities, duties and authorities as may be assigned to the
Executive by the Company's Chief Executive Officer, provided, that, the
same is not inconsistent with such position. Executive agrees that he will
use his full business time to promote the interests of the Company and its
affiliates and to fulfill his duties hereunder. In addition, the Company
will elect or cause the election of Executive to the Board of Directors of
the Company. Nothing in this Agreement shall however preclude Executive
from engaging, so long as, in the reasonable determination of the Company's
Board of Directors, such activities do not interfere with the execution of
his duties and responsibilities hereunder, in charitable and community
affairs, from managing any passive investment made by Executive in publicly
traded equity securities or other property (provided, that, no such
investment may exceed 5% of the equity of any entity, without the prior
approval of the Company's Board of Directors) or from serving, subject to
the prior approval of the Company's Board of Directors, as a member of
boards of directors or as a trustee of any other corporation, association
or entity (provided, that, no such prior approval shall be required for any
such boards on which Executive shall currently serve). For purposes of the
preceding sentence, any approval of the Company's Board of Directors
required herein shall not be unreasonably withheld.
(b) Term. Unless sooner terminated pursuant to Section 3, the term of
Executive's employment pursuant to this Agreement shall commence on the
Effective Date and shall continue thereafter for a period of two years (the
"Term"). Executive and the Company understand and acknowledge that
Executive's employment with the Company constitutes "at-will" employment.
Subject to the Company's obligation to provide severance benefits as
specified herein, Executive and the Company acknowledge that this
employment relationship may be terminated at any time, upon written notice
to the other party, with or without Cause or Good Reason, as those terms
are defined below, at the option of either the Company or Executive.
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2. Compensation. During the employment term under this Agreement, the Company
shall compensate Executive as follows:
(a) Base Salary. Subject to adjustment as set forth below, the Company will pay
Executive while he is employed hereunder, an annualized base compensation
of not less than One Hundred Seventy-Five Thousand Dollars ($175,000.00)
per year, payable in substantially equal bi-monthly installments, or more
frequently in accordance with Company's usual payroll policy (the "Base
Salary"). The Company will review annually Executive's performance and
compensation.
(b) Performance Bonus. Executive shall be entitled to such bonus compensation
as the Compensation Committee deems appropriate. Such bonus compensation
shall be based, in part, on the achievement of performance criteria
established by the Compensation Committee, including criteria relating to
the profitability of the Company.
(c) Participation in Company Stock Ownership Plan. During the period of
Executive's employment, Executive will be entitled to participate in the
Company's Stock Option Plan (or such other successor plan), as the Board of
Directors or Compensation Committee, in its sole discretion, may determine.
Effective as of the date of this Agreement, Executive holds stock options
(the "Options") to purchase 300,000 shares (the "Shares") of the common
stock of the Company of the original grant to purchase 450,000 shares of
the common sotck of the Company, which Options were granted to him on May
10, 2004. Executive shall receive an additional stock option grant in
accordance with Exhibit A attached hereto.
(d) Benefits. Executive will be eligible to participate in all benefit programs
of the Company which are in effect for its senior executive personnel and,
to the extent available to executive personnel, its employees generally
from time to time.
(e) Vacation. Executive will be entitled each year to vacation for a period or
periods not inconsistent with the normal policy of Company in effect from
time to time, but in any event not less than fifteen vacation days each
year and to such holidays as may be customarily afforded to its employees
by the Company, during which periods Executive's compensation shall be paid
in full.
(f) Reimbursement of Expenses.
(i) All reasonable travel and entertainment expenses incurred by Executive
in the course of fulfilling this Agreement or otherwise promoting the
Company and its business shall be reimbursed by the Company. Such
reimbursement shall be made to Executive promptly following submission
to the Company of receipts and other documentation of such expenses
reasonably satisfactory to the Company.
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(ii) In addition to the expenses reimbursable pursuant to paragraph (i)
above, the Company shall also pay to Executive a monthly allowance of
$125.00 for telephone expenses.
3. Termination.
(a) Death and Legal Incapacity. Executive's employment hereunder shall
terminate upon Executive's death or legal incapacity.
(b) Disability. Executive's employment hereunder may be terminated by the
Company in the event of Executive's Disability. As used in this Agreement,
the term "Disability" shall mean the inability or failure of the Executive
to perform the essential functions of the position for which he has been
employed by the Company, for more than 90 consecutive days or for shorter
periods aggregating more than 150 days in any period of 12 consecutive
months, all as determined in good faith by a majority vote of the
disinterested members of the Company's Board of Directors. Until such
termination occurs, Executive shall continue to receive his base salary
Base Salary as then in effect, provided, however, that such salary shall be
reduced to the extent of any short-term disability benefits provided to
Executive under a short-term disability plan sponsored by the Company.
(c) For Cause. Executive's employment hereunder may be terminated by the
Company for cause ("Cause") upon the occurrence of any of the following
events and in accordance with the time periods set forth below:
(i) Executive's breach of any material duty or obligation hereunder, which
breach continues or renews at any time after notice and a reasonable
opportunity to desist or otherwise cure has been furnished.
(ii) Executive is convicted or pleads guilty or nolo contendre to any
felony (other than traffic violation) or any crime involving fraud,
dishonesty or misappropriation;
(iii)Executive willfully engages in misconduct that causes material harm
to the Company
(iv) The Executive willfully engages in an act that constitutes a conflict
of interest with the Company or a usurpation of a business opportunity
of the Company, in either case without the prior written approval of
the Company's Board of Directors.
The determination as to whether any of the foregoing Causes has occurred
shall be made in good faith by the affirmative vote of at least 75% of the
disinterested members of the Company's Board of Directors. No event shall
be deemed a basis for Cause unless Executive is terminated therefore within
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60 days after such event is known to the Chairman of the Company or if
Executive is Chairman, known to the Chairman of any committee of the Board.
(d) For Good Reason. Executive may terminate his employment hereunder for good
reason ("Good Reason") if such termination occurs within six months 60 days
after:
(i) The Company assigns to Executive any duties or responsibilities
inconsistent with Section 1, which assignment is not withdrawn within
20 business days after Executive's notice to the Company of his
reasonable objection thereto;
(ii) Executive is relocated more than 40 miles from Huntsville, Alabama
without his prior written consent; or
(iii)The Company breaches any material provision of this Agreement and
such breach and the effects thereof are not remedied by the Company
within 20 business days after Executive's notice to the Company of the
existence of such breach.
(e) Effect of Termination.
(i) If the Company terminates Executive's employment for reasons other
than for Cause, or for Executive's death, legal incapacity or
disability or Disability, or if Executive terminates this Agreement
for Good Reason, the obligations of Executive under this Agreement
will terminate except that the covenants contained in Section 4(a)
shall continue indefinitely, and the obligations in this section shall
continue pursuant to their terms. In such event, for a period of
eighteen (18) months after the date of Executive's termination, the
Company shall pay Executive, in accordance with customary payroll
procedures, Executive's base salary Base Salary as then in effect and,
in addition, any Performance Bonus that Executive would have earned in
the year he was terminated, prorated as of the date of termination.
For such eighteen-month period, the Company shall continue to provide
medical coverage to Executive under substantially the same terms as
were in effect on the date Executive's employment terminated under
this provision. Additionally, any and all vested options, warrants or
other securities awarded to Executive pursuant to the Company's Stock
Option Plan or any other similar plan or other written option
agreement shall, as of the date of Executive's termination,
immediately vest and become exercisable and all such vested options,
warrants or other securities shall remain exercisable by Executive for
the duration of the period during which the options, warrants or other
securities would have remained exercisable if Executive had remained
employed by the Company. The amounts paid to Executive under this
paragraph shall not be affected in any way by Executive's acceptance
of other employment during the six-month period described above.
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(ii) Except as otherwise provided herein, if Executive terminates his
employment for any reason other than Good Reason or Executive's
employment is terminated for Cause, the obligations of Executive and
the Company under this Agreement will terminate except that the
covenants of Executive contained in Section 4(a) shall continue
indefinitely and the covenants of Executive contained in Section 4(d)
shall continue until the first anniversary of the date of Executive's
termination. In such event, Executive shall be entitled to receive
only the compensation hereunder accrued and unpaid as of the date of
Executive's termination.
(iii)If Executive's employment terminates due to a disability Disability,
as defined in Section 3(b), the obligations of Executive under this
Agreement will terminated except that the covenants in Section 4(a)
shall continue indefinitely. In such event, for a period of one year
after the date of Executive's termination, the Company shall pay
Executive, in accordance with customary payroll procedures,
Executive's base salary Base Salary as then in effect, provided,
however, that the payment of such salary shall be reduced to the
extent of any long-term disability benefits provided to Executive
under a long-term disability plan sponsored by the Company. The
vesting and exercise of any and all options, warrants or other
securities awarded to Executive pursuant to the Company's Stock Option
Plan or any other similar plan shall be governed by the terms of such
plan, or if awarded pursuant to a written option agreement, then the
terms of such agreement.
(iv) No amount payable to Executive pursuant to this Agreement shall be
subject to mitigation due to Executive's acceptance or availability of
other employment.
4. Restrictive Covenants; Non-Competition.
The parties hereto recognize that Executive's services are special and
unique and that the level of compensation and the provisions herefor for
compensation are partly in consideration of and conditioned upon Executive's not
competing with the Company.
(a) Except as otherwise permitted hereby, or by the Company's Board of
Directors, Executive shall treat as confidential and not communicate or
divulge to any other person or entity any information related to the
Company or its affiliates or the business, affairs, prospects, financial
condition or ownership of the Company or any of its affiliates (the
"Information") acquired by Executive from the Company or the Company's
other employees or agents, except (i) as may be required to comply with
legal proceedings (provided, that, prior to such disclosure in legal
proceedings Executive notifies the Company and reasonably cooperates with
any efforts by the Company to limit the scope of such disclosure or to
obtain confidential treatment thereof by the court or tribunal seeking such
disclosure) or (ii) while employed by the Company, as Executive reasonably
believes necessary in performing his duties. Executive shall use the
Information only in connection with the performance of his duties
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hereunder, and not otherwise for his benefit or the benefit of any other
person or entity. For the purposes of this Agreement, Information shall
include, but not be limited to, any confidential information concerning
clients, subscribers, marketing, business and operational methods of the
Company or its affiliates and its and its affiliates' clients, subscribers,
contracts, financial or other data, technical data or any other
confidential or proprietary information possessed, owned or used by the
Company. Excluded from Executive's obligations of confidentiality is any
part of such Information that: (i) was in the public domain prior to the
date of commencement of Executive's employment with the Company or (ii)
enters the public domain other than as a result of Executive's breach of
this covenant. This Section (4) (a) shall survive the expiration or
termination of the other provisions of this Agreement.
(b) Executive shall fully disclose to the Company all discoveries, concepts,
and ideas, whether or not patentable, including, but not limited to,
processes, methods, formulas, and techniques, as well as improvements
thereof or know-how related thereto (collectively, "Inventions") concerning
or relating to the business conducted by the Company and concerning any
present or prospective activities of the Company which are published, made
or conceived by Executive, in whole or in part, during Executive's
employment with the Company.
(c) Executive shall make applications in due form for United States letters
patent and foreign letters patent on such Inventions at the request of the
Company and at its expense, but without additional compensation to
Executive. Executive further agrees that any and all such Inventions shall
be the absolute property of Company or its designees. Executive shall
assign to the Company all of Executive's right, title and interest in any
and all Inventions, execute any and all instruments and do any and all acts
necessary or desirable in connection with any such application for letters
patent or to establish and perfect in the Company the entire right, title,
and interest in such Inventions, patent applications, or patents, and shall
execute any instrument necessary or desirable in connection with any
continuations, renewals, or reissues thereof or in the conduct of any
related proceedings or litigation.
(d) During Executive's employment with the Company and for a period of eighteen
(18) months after the earlier of the expiration date of this Agreement or
the termination Executive's employment hereunder by the Company for Cause
or by Executive (other than for Good Reason) or subsequent to a Change in
Control, as hereinafter defined:
(i) Executive will not, directly or indirectly, engage in, own or control
an interest in (except as a passive investor in publicly held
companies and except for investments held at the date hereof) or act
as an officer, director, or employee of, or consultant or adviser to,
any entity located in any state in which the Company provides or has
provided its services or products (the "Covered Area"), that competes,
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directly or indirectly, with any of the products or services being
offered or actively under consideration for offer during the term of
Executive's employment with the Company;
(ii) Executive will not recruit or hire any employee, independent
contractor or vendor of the Company, or otherwise induce such
employee, independent contractor or vendor to leave the Company, to
become an employee of or otherwise be associated with Executive or any
company or business with which Executive is or may become associated.
(iii)Executive will not solicit or accept from any customer or account of
the Company existing at the time or within 18 months preceding the
termination of Executive's employment with the Company, any business
of the kind offered or conducted by the Company as of the termination
of the Executive's employment with the Company.
(e) If any portion of the restrictive covenants contained in this Section 4 are
held to be unreasonable, arbitrary or against public policy, each covenant
shall be considered divisible both as to time and geographic area, such
that each month within the specified period shall be deemed a separate
period of time and each county within the Covered Area shall be deemed a
separate geographical area, resulting in an intended requirement that the
longest lesser time and the largest lesser geographic area determined not
to be unreasonable, arbitrary, or against public policy shall remain
effective and be specifically enforceable against the Executive.
(f) Each restrictive covenant on the part of the Executive set forth in this
Agreement shall be construed as a covenant independent of any other
covenant or provision of this Agreement or any other agreement which the
Executive may have, whether fully performed or executory, and the existence
of any claim or cause of action by the Executive against the Company
whether predicated upon another covenant or provision of this Agreement or
otherwise, shall not, unless otherwise allowed by applicable law,
constitute a defense to the enforcement by the Company of any other
covenant.
(g) The period of time during which the Executive is prohibited from engaging
in the practices identified in this Section 4 shall be extended by any
length of time during which the Executive is in breach of such covenants.
5. Change of Control.
In the event of a Change of Control, the following provisions shall apply:
(a) If, immediately upon a Change of Control or at any time within one (1) year
thereafter, Executive is no longer employed by the Company (or any entity
to which this Agreement may be assigned in connection with such Change of
Control) for any reason other than Executive's death, legal incapacity or
disability, Executive shall be entitled to receive, within 10 days after
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the termination date, a lump sum payment ("Change of Control Payment")
equal to one half the amount of Executive's annual Base Salary then in
effect plus any other amounts accrued and unpaid as of the date of
termination (i.e., earned bonuses, car allowance, unreimbursed business
expenses, and any other amount due to Executive under employee benefit or
fringe benefit plans of the Company). Notwithstanding the foregoing, if
Executive shall so request, any Change of Control Payment may be paid to
Executive in substantially equal monthly installments, or more frequently
in accordance with the Company's usual payroll policy. Additionally, any
and all options, warrants or other securities awarded to Executive pursuant
to the Company's Stock Option Plan or any other similar plan shall, as of
the date of Executive's termination, immediately vest and become
exercisable by Executive for the duration of the period during which the
options, warrants or other securities would have remained exercisable if
Executive had remained employed by the Company.
(b) For purposes of this Section 5, a "Change of Control" shall be deemed to
occur upon any of the following events:
(1) Any "person" or "group" within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act (i) becomes the "beneficial owner," as
defined in Rule 13d-3 under the Exchange Act, of 50% or more of the
combined voting power of the Company's then outstanding securities,
otherwise than through a transaction or series of related transactions
arranged by, or consummated with the prior approval of, the Board or
(ii) acquires by proxy or otherwise the right to vote 50% or more of
the then outstanding voting securities of the Company, otherwise than
through an arrangement or arrangements consummated with the prior
approval of the Board, for the election of directors, for any merger
or consolidation of the Company or for any other matter or question.
(2) During any period of 12 consecutive months (not including any period
prior to the adoption of this Section), Present Directors and/or New
Directors cease for any reason to constitute a majority of the Board.
For purposes of the preceding sentence, "Present Directors" shall mean
individuals who at the beginning of such consecutive 12-month period
were members of the Board, and "New Directors" shall mean any director
whose election by the Board or whose 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 were Present Directors or
New Directors.
(3) Consummation of (i) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of Stock would be converted into cash,
securities or other property, other than a merger of the Company in
which the holders of Stock immediately prior to the merger have the
same proportion and ownership of common stock of the surviving
corporation immediately after the merger or (ii) any sale, lease,
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exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company; provided, that, the divestiture of less than substantially
all of the assets of the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange,
spin-off sale of the stock or merger of a subsidiary or otherwise,
shall not constitute a Change in Control.
For purposes of this Section 5(b), the rules of Section 318(a) of the Code
and the regulations issued thereunder shall be used to determine stock
ownership.
(c) Excise Tax Gross-Up. If Executive becomes entitled to one or more payments
(with a "payment" including the vesting of restricted stock, a stock
option, or other non-cash benefit or property), whether pursuant to the
terms of this Agreement or any other plan or agreement with the Company or
any affiliated company (collectively, "Change of Control Payments"), which
are or become subject to the tax ("Excise Tax") imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), the Company
shall pay to Executive at the time specified below such amount (the
"Gross-up Payment") as may be necessary to place Executive in the same
after-tax position as if no portion of the Change of Control Payments and
any amounts paid to Executive pursuant to this paragraph 5(c) had been
subject to the Excise Tax. The Gross-up Payment shall include, without
limitation, reimbursement for any penalties and interest that may accrue in
respect of such Excise Tax. For purposes of determining the amount of the
Gross-up Payment, Executive shall be deemed: (A) to pay federal income
taxes at the highest marginal rate of federal income taxation for the year
in which the Gross-up Payment is to be made; and (B) to pay any applicable
state and local income taxes at the highest marginal rate of taxation for
the calendar year in which the Gross-up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes if paid in such year. If the Excise
Tax is subsequently determined to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, Executive shall
repay to the Company at the time that the amount of such reduction in
Excise Tax is finally determined (but, if previously paid to the taxing
authorities, not prior to the time the amount of such reduction is refunded
to Executive or otherwise realized as a benefit by Executive) the portion
of the Gross-up Payment that would not have been paid if such Excise Tax
had been used in initially calculating the Gross-up Payment, 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 the Gross-up
Payment is made, the Company shall make an additional Gross-up Payment in
respect of such excess (plus any interest and penalties payable with
respect to such excess) at the time that the amount of such excess is
finally determined.
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The Gross-up Payment provided for above shall be paid on the 30th day (or
such earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Change of Control
Payments (or any portion thereof) are subject to the Excise Tax; provided,
however, that if the amount of such Gross-up Payment or portion thereof
cannot be finally determined on or before such day, the Company shall pay
to Executive on such day an estimate, as determined by counsel or auditors
selected by the Company and reasonably acceptable to Executive, of the
minimum amount of such payments. The Company shall pay to Executive 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. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to Executive, payable on the fifth day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). The Company shall have the right to
control all proceedings with the Internal Revenue Service that may arise in
connection with the determination and assessment of any Excise Tax and, at
its sole option, the Company may pursue or forego any and all
administrative appeals, proceedings, hearings, and conferences with any
taxing authority in respect of such Excise Tax (including any interest or
penalties thereon); provided, however, that the Company's control over any
such proceedings shall be limited to issues with respect to which a
Gross-up Payment would be payable hereunder, and Executive shall be
entitled to settle or contest any other issue raised by the Internal
Revenue Service or any other taxing authority. Executive shall cooperate
with the Company in any proceedings relating to the determination and
assessment of any Excise Tax and shall not take any position or action that
would materially increase the amount of any Gross-up Payment hereunder.
6. No Violation.
Executive warrants that the execution and delivery of this Agreement and
the performance of his duties hereunder will not violate the terms of any other
agreement to which he is a party or by which he is bound. Additionally,
Executive warrants that Executive has not brought and will not bring to the
Company or use in the performance of Executive's responsibilities at the Company
any materials or documents of a former employer that are not generally available
to the public, unless Executive has obtained express written authorization from
the former employer for their possession and use. Executive represents that he
is not and, since the commencement of Executive's employment with the Company
has not been a party to any employment, proprietary information,
confidentiality, or noncompetition non-competition agreement with any of
Executive's former employers which remains in effect as the date hereof..
Notwithstanding the foregoing, Executive currently has an agreement with
Executive's previous employer which remains in effect, a copy of which is
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attached hereto and made a part hereof as Exhibit B. The warranties set forth in
this Section 6 shall survive the expiration or termination of the other
provisions of this Agreement.
7. Breach by Executive.
Both parties recognize that the services to be rendered under this
Agreement by Executive are special, unique and extraordinary in character, and
that in the event of the breach by Executive of the terms and conditions of this
Agreement to be performed by him or in the event Executive performs services for
any person, firm or corporation engaged in a competing line of business with
Company, the Company shall be entitled, if it so elects, to institute and
prosecute proceedings in any court of competent jurisdiction, whether in law or
in equity, to, by way of illustration and not limitation, obtain damages for any
breach of this Agreement, or to enforce the specific performance thereof by
Executive, or to enjoin Executive from competing with the Company or, performing
services for himself or any such other person, firm or corporation. The Company
may obtain an injunction restraining any such breach by Executive and no bond or
other security shall be required in connection therewith. The Company and
Executive each consent to the jurisdiction of United States Federal District
Court for the Northern District of Alabama.
8. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, its successors, and assigns and may not be assigned by Executive.
(b) This Agreement contains the entire agreement of the parties hereto and
supersedes all prior or concurrent agreements, whether oral or written,
relating to the subject matter hereof. This Agreement may be amended only
by a writing signed by the party against whom enforcement is sought.
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ALABAMA WITHOUT REGARD TO ITS CONFLICTS OF LAWS, RULES
OR PRINCIPLES.
(d) Any notices or other communications required or permitted hereunder shall
be in writing and shall be deemed effective when delivered in person or, if
mailed, on the date of deposit in the mails, postage prepaid, to the other
party at the respective address of such party set forth herein or to such
other address as shall have been specified in writing by either party to
the other in accordance herewith.
(e) The provisions of Sections 4(a), 4(d) and 6 and the other provisions of
this Agreement which by their terms contemplate survival of the termination
of this Agreement, shall survive termination of this Agreement and be
deemed to be independent covenants.
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(f) If any term or provision of this Agreement or its application to any person
or circumstance is to any extent invalid or unenforceable, the remainder of
this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision
shall be valid and enforced to the fullest extent permitted by law.
(g) No delay or omission to exercise any right, power or remedy accruing to any
party hereto shall impair any such right, power or remedy or shall be
construed to be a waiver of or an acquiescence to any breach hereof. No
waiver of any breach of this Agreement shall be deemed to be a waiver of
any other breach of this Agreement theretofore or thereafter occurring. Any
waiver of any provision hereof shall be effective only to the extent
specifically set forth in the applicable writing. All remedies afforded
under this Agreement to any party hereto, by law or otherwise, shall be
cumulative and not alternative and shall not preclude assertion by any
party hereto of any other rights or the seeking of any other rights or
remedies against any other party hereto.
(h) It is the intent of the Company that Executive not be required to incur any
legal fees or disbursements associated with (i) the interpretation of any
provision in, or obtaining of any right or benefit under this Agreement, or
(ii) the enforcement of his rights under this Agreement, including, without
limitation by litigation or other legal action, because the cost and
expense thereof would substantially detract from the benefits to be
extended to Executive hereunder. Accordingly, the Company irrevocably
authorizes Executive from time to time to retain counsel of his choice, at
the expense of the Company as hereafter provided, to represent Executive in
connection with the interpretation and/or enforcement of this Agreement,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Company, or any Director,
officer, stockholder, or any other person affiliated with the Company in
any jurisdiction. The Company shall pay or cause to be paid and shall be
solely responsible for any and all reasonable attorneys' and related fees
and expenses incurred by Executive under this Section 8(h).
(i) The Background section of this Agreement is hereby incorporated into the
Operative Provisions of this Agreement.
9. Indemnification.
The Company agrees to indemnify Executive to the fullest extent permitted
by applicable law, as such law may be hereafter amended, modified or
supplemented and to the fullest extent permitted by each of the Company's
Restated Certificate of Incorporation and the Company's Restated By-Laws, as
from time to time amended, modified or supplemented. The Company further agrees
that Executive is entitled to the benefits of any directors and officers'
liability insurance policy, in accordance with the terms and conditions of that
policy, if such a policy is maintained by the Company.
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(Signature Page To Follow)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first stated above.
COMPANY
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DIGITAL FUSION, INC.
By:/s/ Xxxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Its: Chairman of the Board
EXECUTIVE
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/s/Xxxx Xxxx
---------------------------------------
Xxxx Xxxx
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EXHIBIT A
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Stock Options*
Effective immediately, the Company hereby awards to Executive an option to
purchase One Hundred Thousand (100,000) shares of the Company's Common Stock.
The price per share shall be determined on the effective date of the grant.
One-third shall vest and be exercisable by the Executive immediately and the
remainder shall vest at the rate of one-third on each of the first and second
anniversaries of the effective date of the grant.
Effective February 28, 2006, the Company hereby awards to Executive an
option to purchase One Hundred Thousand (100,000) shares of the Company's Common
Stock. The price per share shall be determined on the effective date of the
grant. One-third shall vest and be exercisable by the Executive immediately and
the remainder shall vest at the rate of one-third on each of the first and
second anniversaries of the effective date of the grant.
* Grant shall be non-qualified stock options. In addition, during the period of
the Executive's employment, Executive will be entitled to further participate in
the Company's Stock Ownership Plan, as the Board of Directors, in its sole
discretion, may determine.
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