EXHIBIT 6
NON-QUALIFIED STOCK OPTION AGREEMENT
Non-Qualified Stock Option Agreement (this "Option Agreement"), dated as of
December 12, 2001 (the "Grant Date"), between Digital Fusion, Inc. (the
"Company") and Xxx X. Xxxxxxx III (the "Recipient").
WHEREAS, the Company intends to provide an incentive to the Recipient in
order to induce the Recipient to become an employee of the Company, by providing
the Recipient with opportunities to purchase shares of Common Stock (as defined
herein);
WHEREAS, the Board of Directors of the Company (the "Board") or a duly
constituted committee thereof has determined that it would be in the best
interest of the Company and its stockholders to grant the options provided
herein to the Recipient.
NOW, THEREFORE, in consideration of the covenants contained herein and
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise indicated, whenever capitalized terms are used in this
Option Agreement, they shall have the meanings set forth below.
"Change of Control" shall mean an event whereby a person or entity becomes
the beneficial owner as calculated in accordance with Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended, of at least 50% of the
then outstanding Common Stock.
"Committee" shall mean the Organization and Compensation Committee, if any,
of the Board.
"Common Stock" shall mean the common stock of the Company, par value $.01.
"Disability" shall mean the inability of the Recipient to perform in all
material respects the Recipient's duties and responsibilities to the Company, or
any Subsidiary of the Company, by reason of a physical or mental disability or
infirmity which inability is reasonably expected to be permanent and has
continued (i) for a period of six consecutive months or (ii) such shorter period
as the Company may determine. The Recipient (or the Recipient's representative)
shall furnish the Company with satisfactory medical evidence documenting the
Recipient's disability or infirmity.
"Fair Market Value" shall mean the average of the opening and closing
prices of the Common Stock for ten (10) consecutive trading days ending three
(3) trading days prior to the Grant Date.
"Option Shares" shall mean, with respect to the Recipient, (a) any shares
of Common Stock (or other shares of capital stock of the Company) issuable or
issued by the Company upon exercise of any Option by the Recipient and (b) any
shares of the capital stock of the Company issuable or issued in respect of any
of the securities described in clause (a) above, by way of stock dividend, stock
split, merger, consolidation, reorganization or other recapitalization.
"Person" shall mean an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Subsidiary" shall mean any corporation of which the Company owns, directly
or through one or more Subsidiaries, a fifty percent (50%) or more equity
interest in such corporation or has the right to nominate fifty percent (50%) or
more of the members of the board of directors or other governing body of the
corporation.
"Transfer" shall mean, with respect to any Option, the gift, sale,
assignment, transfer, pledge, hypothecation or other disposition (whether for or
without consideration and whether voluntary, involuntary or by operation of law)
of such Option or any interest therein.
ARTICLE II
GRANT OF OPTIONS
2.1 Grant of Options. The Recipient is hereby granted Options representing
the right to acquire 125,000 shares of Common Stock. Unless otherwise indicated
herein, references herein to "Options" means the Options granted hereby.
2.2 Exercise Price. The Exercise Price of the Options shall be the Fair
Market Value of the Common Stock.
2.3 Changes in Common Stock. In the event of any change in the outstanding
shares of Common Stock by reason of any stock split, stock dividend,
recapitalization, merger, consolidation, combination or exchange of shares or
other similar corporate change or in the event of any special distribution to
the stockholders, the Committee shall make equitable adjustments in the number
of shares and prices per share applicable to Options then outstanding.
2.4 Representation of the Company as to the Common Stock. The Company
represents and warrants to the Recipient that all of the Option Shares to be
issued upon the exercise of the Options pursuant to this Option Agreement, when
issued in accordance with the terms of this Option Agreement, will be duly
authorized and validly issued, fully paid and nonassessable.
ARTICLE III
EXERCISABILITY OF OPTIONS
Options shall vest upon the earliest to occur of the events described in
Sections 3.1 or 3.2, but subject to the limitations set forth in Section 3.4 and
3.5, and shall become exercisable as described in Section 3.3:
3.1 Time Vesting. If not sooner vested, Options granted pursuant to this
Option Agreement vest pursuant to the following schedule:
(a) The Options shall vest ratably on the first day of each calendar month
for eighteen (18) consecutive calendar months commencing with the first full
calendar month after the date of the grant.
In the event that the calculation of the number of Options to vest at any given
time pursuant to this Section 3.1 results in a number which is not a whole
number, such number shall be rounded down to the nearest whole number.
3.2 Vesting upon Change in Control, Death, Disability or Legal
Incapacitation. If not sooner vested, all Options shall vest upon the occurrence
of a Change in Control, or the death, Disability, or legal incapacity of the
Recipient.
3.3 Exercise; Restriction on Exercise. No unvested Options shall be
exerciseable. All vested Options shall become exercisable at the time they first
vest and shall cease to be exercisable at the time they expire as provided in
Article V.
ARTICLE IV
EXERCISE OF OPTIONS
4.1 Person Who Can Exercise. Options may only be exercised by the
Recipient, except that, in the event of Disability or legal incapacitation,
Options may be exercised by the Recipient's legal guardian or legal
representative and, in the event of death, Options may be exercised by the
executor or administrator of the Recipient's estate or the Person or Persons to
whom the Recipient's rights under the Options pass by will or the laws of
descent and distribution.
4.2 Procedure for Exercise. Vested Options may be exercised in whole or in
part with respect to any portion thereof that is exercisable. To exercise an
Option, the Recipient (or such other Person who shall be permitted to exercise
the Option as set forth in Section 4.1) must complete, sign and deliver to the
Company an Exercise Notice together with payment in full of the Exercise Price
multiplied by the number of shares of Common Stock with respect to which the
Option is exercised. Payment of the Exercise Price shall be made in cash
(including check, bank draft or money order). The right to exercise the Option
shall be subject to the satisfaction of all conditions set forth in the Exercise
Notice. In lieu of paying the Exercise Price, upon the Recipient's (or such
other Person's) request, with the Committee's or the Board's consent (which may
or may not be given in its sole discretion), the Company shall deliver to the
Recipient a number of shares of Common Stock equal to (A) divided by (B) where
(A) is the positive difference between (i) the Fair Market Value of a share of
Common Stock on the date on which the Exercise Notice is received by the Company
(i.e., the exercise date), and (ii) the Exercise Price, multiplied by (iii) the
number of shares for which the Option is being exercised, and (B) is the Fair
Market Value of a share of Common Stock on the exercise date.
4.3 Withholding of Taxes. The Company and its Subsidiaries shall withhold
from any amounts due and payable by the Company and its Subsidiaries to the
Recipient (or secure payment from the Recipient in lieu of withholding) the
amount of any withholding or other tax due from the Company with respect to any
Options Shares issuable under this Option Agreement, and the Company may defer
such issuance until such withholding or payment is made unless otherwise
indemnified to its satisfaction with respect thereto.
ARTICLE V
EXPIRATION OF OPTIONS
5.1 Expiration. Vested and unvested Options shall expire at 5:00 p.m.
Eastern Standard Time on the tenth anniversary of the Grant Date, unless earlier
cancelled pursuant to section 3.4 hereof.
5.2 Cancellation. Vested and unvested Options which expire unexercised
shall be treated as cancelled.
ARTICLE VI
MISCELLANEOUS
6.1 Options Not Transferable. Options may not be Transferred (other than by
will or laws of descent and distribution). Any attempt to effect a Transfer of
Options that is not permitted by this Option Agreement shall be null and void.
6.2 No Employment Contract. Nothing in this Option Agreement shall
interfere with or limit in any way the right of the Company or any of its
Subsidiaries to terminate the Recipient's employment at any time, nor confer
upon any Recipient any right to continued employment by the Company or any of
its Subsidiaries for any period of time or to continue such employee's present
(or any other) rate of compensation.
6.3 Notices. All notices, requests and demands to or upon a party hereto
must, to be effective, be in writing and shall be deemed to have been duly given
or made when delivered by hand or three days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows or to such other address of which the intended receiving party hereto
shall have been duly notified hereunder:
(a) If to the Company, to the following address:
Digital Fusion, Inc.
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
(b) If to the Recipient, to the address or telecopy number as shown on the
signature page hereto.
6.4 Amendment. This Option Agreement may be amended only by a writing
executed by the parties hereto which specifically states that it is amending
this Option Agreement.
6.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida applicable to
contracts made and to be performed therein without regard to the conflicts of
law principles thereof.
6.6 Titles. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Option Agreement.
IN WITNESS WHEREOF, this Option Agreement has been executed and delivered
by the parties hereto.
XXX X. XXXXXXX III DIGITAL FUSION, INC.
/s/ Xxx X. Xxxxxxx, III By: /s/ Xxx X. Xxxxxxx, III
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Signed Name: Xxx X. Xxxxxxx, III
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Title: President and CEO
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Name: Xxx X. Xxxxxxx, III
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Home Address:
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