Exhibit 10.21
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement (the "Agreement")
dated February 24, 2006 ("Effective Date"), is made by and between Digital
Fusion, Inc., a Delaware corporation ("Company"), and Xxxx X. Xxxx (Executive").
WITNESSETH THAT:
WHEREAS, the Company and Executive has been employed by the Company as
its President, immediately prior to the Effective Date pursuant to an employment
agreement dated May 5, 2004 (the "Prior Agreement");
WHEREAS, the Executive and the Company entered into an Amended and
Restated Employment Agreement dated February 28, 2005 (the "Effective Date");
and
WHEREAS the parties hereto desire to enter into this Agreement
pertaining to the continued employment of the Executive of the Company;
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, it is hereby covenanted and agreed by the Executive and the Company 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. 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.
1
(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.
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 Two Hundred Thousand Dollars
($200,000.00) per year, payable in s 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 stock of the Company, which
Options were granted to him on May 10, 2004. Effective February 28,
2006, Executive will receive a grant to purchase 100,000 shares of the
common stock of the Company. 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, pursuant to approval by the Compensation
Committee as of the Amended and Restated Employment Agreement dated
February 28, 2005.
(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.
2
(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.
(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.
3
(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 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
4
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.
(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.
5
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 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.
6
(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, 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.
7
(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 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.
8
(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, 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
9
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.
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.
10
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
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.
11
(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.
(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).
12
(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 Amended and 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.
(Signature Page To Follow)
13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
COMPANY
-------
DIGITAL FUSION, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Its: Chief Executive Officer
EXECUTIVE
/s/ Xxxx X. Xxxx
-------------------------------------------
Xxxx X. Xxxx
14
