Contract
EXHIBIT 1
STOCK PURCHASE AGREEMENT
AMONG
DIGITAL FUSION, INC.
AND
XXXXXXX X. XXXXX
October 28, 2004
TABLE OF CONTENTS
1. Definitions. 1
2. Purchase and Sale of Company Shares. 4
(a) Basic Transaction. 4
(b) Purchase Price. 4
(c) The Closing. 5
(d) Deliveries at the Closing. 5
3. Assumption of Company Accounts. 5
4. Representations and Warranties Concerning the Transaction. 5
(a) Representations and Warranties of the Seller. 5
(b) Representations and Warranties of the Buyer. 7
5. Representations and Warranties Concerning the Company. 7
(a) Organization, Qualification, and Corporate Power. 8
(b) Capitalization. 8
(c) Noncontravention. 8
(d) Brokers' Fees. 9
(e) Title to Tangible Assets. 9
(f) Subsidiaries. 9
(g) Financial Statements. 9
(h) Events Subsequent to Most Recent Fiscal Month End. 9
(i) Legal Compliance. 9
(j) Tax Matters. 9
(k) Real Property. 10
(l) Contracts. 10
(m) Intellectual Property. 11
(n) Powers of Attorney. 11
(o) Litigation. 11
(p) Employee Benefits. 11
(q) Insurance. 12
(r) Labor Matters. 12
(s) Undisclosed Liabilities. 12
6. Pre-Closing Covenants. 13
(a) General. 13
(b) Notices and Consents. 13
(c) Operation of Business. 13
(d) Full Access. 13
(e) Notice of Developments. 13
7. Post-Closing Covenants. 14
(a) General. 14
(b) Litigation Support. 14
(c) Transition. 14
(d) Seller's Employment Agreement. 15
(e) Company Employees. 15
8. Conditions to Obligation to Close. 15
(a) Conditions to Obligation of the Buyer. 15
(b) Conditions to Obligation of the Seller. 16
9. Remedies for Breaches of This Agreement. 17
(a) Survival of Representations and Warranties. 17
(b) Obligations of Seller. 18
(c) Indemnification Obligations of Buyer. 18
(d) Procedures. 18
(e) Adjustments to Losses. 19
(f) Maximum Indemnification. 20
(g) Time For Making Claims. 20
(h) Exclusive Remedy. 20
(i) Treatment of Payments. 20
(j) Offset. 20
10. Termination. 20
(a) Termination of Agreement. 20
(b) Effect of Termination. 21
(c) Break-Up Fee. 21
11. Miscellaneous. 22
(a) Press Releases and Public Announcements. 22
(b) No Third-Party Beneficiaries. 22
(c) Entire Agreement. 22
(d) Succession and Assignment. 22
(e) Counterparts. 22
(f) Headings. 23
(g) Notices. 23
(h) Governing Law. 23
(i) Amendments and Waivers. 24
(j) Severability. 24
(k) Expenses. 24
(l) Construction. 24
(m) Incorporation of Exhibits and Schedules. 24
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of October 28,
2004, by and among Digital Fusion, Inc., a Delaware corporation (the "Buyer"),
and Xxxxxxx X. Xxxxx (the "Seller"). The Buyer and the Seller are referred to
collectively herein as the "Parties."
WHEREAS, the Seller owns all of the outstanding capital stock of Summit Research
Corporation, an Alabama corporation (the "Company"); and
WHEREAS, this Agreement contemplates a transaction in which the Buyer will
purchase from the Seller, and the Seller will sell to the Buyer, all of the
outstanding capital stock of the Company in return for the consideration set
forth below.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein
made, and for other good and valuable consideration the receipt and sufficiency
is hereby acknowledged, the Parties agree as follows.
1. Definitions.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Agreement" means this Stock Purchase Agreement between Buyer and the Seller.
"Buyer" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents (including marketable securities and
short term investments) calculated in accordance with GAAP applied on a basis
consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 2(e) below.
"Closing Date" has the meaning set forth in Section 2(e) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the preface above.
"Company Share" means any share of the common stock of the Company.
"Confidential Information" means any information concerning the businesses and
affairs of the Company that is not already generally available to the public.
"Disclosure Schedule" has the meaning set forth in Section 5 below.
"Break-Up Fee" has the meaning set forth in Section 10(c) of this Agreement.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation or
retirement plan or arrangement which is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement which is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec. 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec. 3(1).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Financial Statement" has the meaning set forth in Section 5(g) below.
"GAAP" means United States generally accepted accounting principles as in effect
from time to time.
"Income Tax" means any federal, state, local, or foreign income tax, including
any interest, penalty, or addition thereto, whether disputed or not.
"Income Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Income Taxes, including any schedule
or attachment thereto.
"Indemnified Party" has the meaning set forth in Section 9(d) below.
"Indemnifying Party" has the meaning set forth in Section 9(d) below.
"Knowledge" means actual knowledge without independent investigation.
"Most Recent Financial Statements" has the meaning set forth in Section 5(g)
below.
"Most Recent Fiscal Month End" has the meaning set forth in Section 5(g) below.
"Ordinary Course of Business" means the ordinary course of business consistent
with past custom and practice (including with respect to quantity and
frequency).
"Parties" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Retained Assets" means the assets of the Company listed in Section 2(e) of the
Disclosure Schedule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge, or
other security interest, other than (a) mechanic's, materialmen's, and similar
liens, (b) liens for taxes not yet due and payable, (c) purchase money liens and
liens securing rental payments under capital lease arrangements, and (d) other
liens arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"Seller" has the meanings set forth in the preface above.
"Subsidiary" means any corporation with respect to which a specified Person (or
a Subsidiary thereof) owns a majority of the common stock or has the power to
vote or direct the voting of sufficient securities to elect a majority of the
directors.
"Tangible Net Worth" means total assets less intangible assets and total
liabilities of the Company.
"Tax" means any national, local or foreign income, sales, use, excise,
franchise, ad valorem, real and personal property, transfer, gross receipt,
stamp, premium, profits, windfall profits, capital stock, production, business
and occupation, or similar taxes imposed by any taxing authority, any interest
and penalties (civil or criminal), additions to tax, payments in lieu of taxes
or additional amounts related thereto or to the nonpayment thereof.
"Third Party Claim" has the meaning set forth in Section 9(d) below.
2. Purchase and Sale of Company Shares.
(a) Basic Transaction. On and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees
to sell to the Buyer, all of his Company Shares for the consideration specified
below in this Section 2.
(b) Purchase Price. The aggregate consideration to be paid to the Seller
hereunder (the "Purchase Price") shall consist of the following:
(i) at the Closing, the Buyer shall pay the Seller the sum of $1,600,000 by
delivery of cash payable by wire transfer or delivery of other immediately
available funds;
(ii) at the Closing, the Buyer shall issue to the Seller 575,000 shares of the
Buyer's common stock. Upon acceptance of such Buyer common stock, the Seller
shall be deemed to make with respect to such 575,000 shares the same
representations, warranties and covenants as set forth in the convertible
promissory note referenced in Section 2(b)(iv), below;
(iii) on the six month anniversary of the Closing, the Buyer shall pay the
Seller the sum of $600,000.00 plus an additional amount equal to the excess of
the Company's Tangible Net Worth at the Closing Date in excess of $900,000.00
(the "Second Payment"). The Tangible Net Worth of the Company at the Closing
Date shall be determined by the Company's independent certified public
accountants, subject to review by the Buyer's independent certified public
accountants. The closing balance sheet will exclude any provision for unpaid
income taxes, but otherwise will be determined in accordance with GAAP applied
in a manner consistent with how GAAP was applied by the Company prior to the
Closing Date. If the two accounting firms are unable to agree on a closing
balance sheet, they shall choose a third firm of independent certified public
accountants who will make a final determination as to the Tangible Net Worth of
the Company at the Closing Date. Once determined, the amount of the Second
Payment shall bear interest at a rate of 6% per annum from the Closing Date to
the date of the payment of the Second Payment. The Second Payment may be prepaid
by the Buyer without penalty; and
(iv) at the Closing, the Buyer shall issue to Seller and/or his designees a
convertible promissory note or notes in the cumulative amount of $2,700,000.00
in the form of Exhibit A hereto. To the extent that the Company's Tangible Net
Worth at the Closing Date is less than $900,000, this Note shall be reduced by
that same amount.
(c) The Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of the Buyer in Huntsville,
Alabama, commencing at 9:00 a.m. local time on January 3, 2005 subject to the
satisfaction or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) or
such other date as the Buyer and the Seller may mutually determine (the "Closing
Date").
(d) Deliveries at the Closing. At the Closing, (i) the Seller will deliver to
the Buyer the various certificates, instruments, and documents referred to in
Section 8(a) below, (ii) the Buyer will deliver to the Seller the various
certificates, instruments, and documents referred to in Section 8(b) below,
(iii) the Seller will deliver to the Buyer stock certificates representing all
of his Company Shares, endorsed in blank or accompanied by duly executed
assignment documents, and (iv) the Buyer will deliver to the Seller the
consideration specified in Section 2(b) above.
(e) Retained Assets. Notwithstanding anything herein to the contrary, prior to
or at the Closing, Seller shall cause the Company to distribute to Seller the
Retained Assets, which distribution of Retained Assets shall commensurately
reduce the Company's Tangible Net Worth at the Closing Date.
3. Assumption of Company Accounts. Upon Closing, the Seller shall transfer and
assign to the Buyer, and Buyer shall receive and assume, all right, title,
interest and obligation with respect to the Company's accounts receivable and
accounts payable arising in the Ordinary Course of Business which are
outstanding as of Closing.
4. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller represents and
warrants to the Buyer that the statements contained in this Section 4(a) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
4(a)).
(i) Authorization of Transaction. The Seller has full power and authority to
execute and deliver this Agreement and to perform his obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Seller, enforceable in accordance with its terms and conditions. Except as set
forth in Section 4(a)(i) of the Disclosure Schedule, the Seller need not give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(ii) Noncontravention. Except as set forth in Section 4(a)(ii) of the Disclosure
Schedule, neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate or
conflict with any provision of the Articles of Incorporation or Bylaws of the
Company; (B) violate or result in a breach of or constitute (with due notice or
lapse of time, or both) a default under, or give rise to a right to terminate,
accelerate payments under, or modify, any contract, lease, loan agreement,
mortgage, security agreement or other agreement or instrument (whether or not
the same is in writing) to which the Seller or the Company is a party or by
which either of them is bound or to which any of their properties or assets is
subject; or (C) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject.
(iii) Brokers' Fees. The Seller has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Buyer could become liable or
obligated.
(iv) Company Shares. The Seller holds of record and owns beneficially the number
of Company Shares set forth next to his or its name in Section 5(b) of the
Disclosure Schedule, free and clear of any restrictions on transfer (other than
restrictions under the Securities Act and state securities laws), taxes,
Security Interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require the Seller to
sell, transfer, or otherwise dispose of any capital stock of the Company (other
than this Agreement). The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of any capital stock
of the Company.
(b) Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller that the statements contained in this Section 4(b) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
4(b)).
(i) Organization of the Buyer. The Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation and the State of Alabama.
(ii) Authorization of Transaction. The Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions. The Buyer need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order to consummate the transactions contemplated by
this Agreement.
(iii) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Buyer is a party or by which it is bound or to which any of its assets is
subject.
(iv) Brokers' Fees. The Buyer has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
5. Representations and Warranties Concerning the Company. The Seller represents
and warrants to the Buyer that the statements contained in this Section 5 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 5),
except as set forth in the disclosure schedule delivered by the Seller to the
Buyer on the date hereof and initialed by the Parties (the "Disclosure
Schedule").
(a) Organization, Qualification, and Corporate Power. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation. The Company is duly authorized to
conduct business and is in good standing under the laws of each jurisdiction
where such qualification is required, except where the lack of such
qualification would not have a material adverse effect on the financial
condition of the Company. The Company has full corporate power and authority to
carry on the businesses in which it is engaged and to own and use the properties
owned and used by it. Section 5(a) of the Disclosure Schedule lists the
directors and officers of the Company.
(b) Capitalization. The entire authorized capital stock of the Company consists
of 100,000 Company Shares, of which 80,000 Company Shares are issued and
outstanding and no Company Shares are held in treasury. All of the issued and
outstanding Company Shares have been duly authorized, are validly issued, fully
paid, and nonassessable, and are held of record by the Seller as set forth in
Section 5(b) of the Disclosure Schedule. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require the
Company to issue, sell, or otherwise cause to become outstanding any of its
capital stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation, or similar rights with respect to the
Company.
(c) Noncontravention. Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will (i) violate
any constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any government, governmental
agency, or court to which the Company is subject or any provision of the
articles of incorporation or bylaws of the Company or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license, instrument, or
other arrangement to which the Company is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets). The Company need not give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
(d) Brokers' Fees. Except as to legal or accounting fees, the Company has no
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
(e) Title to Tangible Assets. Except as set forth in Section 5(e) of the
Disclosure Schedule, the Company has good and marketable title to, or a valid
leasehold interest in, the tangible assets it uses regularly in the conduct of
its businesses.
(f) Subsidiaries. The Company has no subsidiaries.
(g) Financial Statements. Attached hereto as Exhibit B are the following
financial statements (collectively the "Financial Statements"): (i) unaudited
balance sheets and statements of income, changes in stockholders' equity, and
cash flow as of and for the fiscal years ended December 31, 2001, 2002, and
2003, for the Company; and (ii) unaudited balance sheets and statements of
income, changes in stockholders' equity, and cash flow (the "Most Recent
Financial Statements") as of and for the nine months ended September 30, 2004
(the "Most Recent Fiscal Month End") for the Company. The Financial Statements
(including the notes thereto) have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods covered thereby and present fairly
the financial condition of the Company as of such dates and the results of
operations of the Company for such periods; provided, however, that the Most
Recent Financial Statements are subject to normal year-end adjustments and all
of the Financial Statements lack footnotes and other presentation items.
(h) Events Subsequent to Most Recent Fiscal Month End. Since the Most Recent
Fiscal Month End, there has not been any material adverse change in the
financial condition of the Company. Without limiting the generality of the
foregoing, since that date the Company has not engaged in any practice, taken
any action, or entered into any transaction outside the Ordinary Course of
Business the primary purpose or effect of which has been to generate or preserve
Cash.
(i) Legal Compliance. The Company has materially complied with all material
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof).
(j) Tax Matters. The Company will pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all Taxes, assessments and
other governmental charges imposed upon the Company and its respective real
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies,
which if unpaid might by law become a lien or charge upon any of its properties;
provided, however, that any such Tax, assessment, charge, levy or claim need not
be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Company shall have set aside on its
books adequate reserves with respect thereto; provided, further, that the
Company will pay or cause to be paid all such Taxes, assessments, charges,
levies or claims forthwith upon the commencement of foreclosure on any lien
which may have attached as security therefor. The Company has made a valid
subchapter S election under the Code, and if it is subsequently determined by
the Internal Revenue Service that such election was not properly made, any Taxes
that are assessed against the Company by reason of such failure shall be
indemnified against by the Seller pursuant to this Agreement.
(k) Real Property. Section 5(k) of the Disclosure Schedule lists all real
property that the Company owns, leases or subleases.
(i) With respect to each such parcel of owned real property, and except for
matters which would not have a material adverse effect on the financial
condition of the Company, the identified owner has good and marketable title to
the parcel of real property, free and clear of any Security Interest, easement,
covenant, or other restriction, except for installments of special assessments
not yet delinquent, recorded easements, covenants, and other restrictions, and
utility easements, building restrictions, zoning restrictions, and other
easements and restrictions existing generally with respect to properties of a
similar character and there are no outstanding options or rights of first
refusal to purchase the parcel of real property, or any portion thereof or
interest therein.
(ii) With respect to each such parcel of leased or subleased real property, the
Seller has delivered to the Buyer correct and complete copies of the leases and
subleases listed in Section 5(k) of the Disclosure Schedule (as amended to
date). Each lease and sublease listed in Section 5(k) of the Disclosure Schedule
is legal, valid, binding, enforceable, and in full force and effect.
(l) Contracts. Section 5(l) of the Disclosure Schedule lists all written
contracts (including leases) and other written agreements to which the Company
is a party the performance of which will involve consideration in excess of
$5,000. The Seller has delivered to the Buyer a correct and complete copy of
each contract or other agreement listed in Section 5(l) of the Disclosure
Schedule (as amended to date). The Company has obtained valid and legal rights
to enforce the terms and conditions of each of such contracts against the
respective other parties thereto, and no defenses, offsets, or counterclaims
thereto have been asserted, or, may be made available by any party thereto
against the Company. The Seller has not received notice of any default under any
of such contracts, and there exists no actual or, threatened, termination,
cancellation, or limitation of or any amendment, modification or change to any
such contract.
(m) Intellectual Property. The Company owns and holds all necessary licenses
with respect to any patents, trademarks, copyrights, trade names, service marks
and other trade designations, including common law rights, registrations,
applications for registration, technology, know-how or processes used in
conducting its business ("Intellectual Property"). All Intellectual Property is
identified on Section 5(m) of the Disclosure Schedule. The Company has not
interfered with, infringed upon, misappropriated or otherwise come into conflict
with any Intellectual Property rights of third parties, and the Company has not
received any charge, complaint, claim, demand or notice alleging any such
interference, infringement, misappropriation or violation. To Seller's
Knowledge, no third party has interfered with, infringed upon, misappropriated
or otherwise come into conflict with any Intellectual Property rights of the
Company.
(n) Powers of Attorney. There are no outstanding powers of attorney executed on
behalf of the Company.
(o) Litigation. Other than as set forth in section 5(o) of the Disclosure
Schedule, the Company (i) is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge nor (ii) is it a party to (or, to
Seller's Knowledge, has it been threatened with) any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction.
(p) Employee Benefits. Section 5(p) of the Disclosure Schedule lists each
Employee Benefit Plan that the Company maintains or to which the Company
contributes.
(i) Each such Employee Benefit Plan (and each related trust, insurance contract,
or fund) complies in form and in operation in all respects with the applicable
requirements of ERISA and the Code, except where the failure to comply would not
have a material adverse effect on the financial condition of the Company.
(ii) All contributions (including all employer contributions and employee salary
reduction contributions) which are due have been paid to each such Employee
Benefit Plan which is an Employee Pension Benefit Plan.
(iii) The Seller has delivered to the Buyer correct and complete copies of the
plan documents and summary plan descriptions, and all related trust agreements,
insurance contracts, and other funding agreements which implement such Employee
Benefit Plan.
(q) Insurance. Section 5(q) of the Disclosure Schedule lists all insurance
policies which will be held by Company on the Closing Date. All such insurance
policies are and will remain until the Closing Date, in full force and effect
and neither Seller nor the Company is on or prior to the Closing Date in default
under any such policy. Seller has provided copies of all such insurance policies
to Buyer.
(r) Labor Matters. Section 5(r) of the Disclosure Schedule contains with respect
to each of the Company's employees, full and accurate data, categorized by type
of employment, and stating name, date of commencement of employment with the
Company, grade, age and the current annual compensation amount, as at the date
hereof. Except as set forth in Section 5(r) of the Disclosure Schedule, Company
is not a party to any collective bargaining agreement or any employment
agreement or other agreement, plan or arrangement, including but not limited to
any agreement, plan or arrangement providing for severance payments to any
employee upon termination of employment or which provide benefits upon a change
in control of the Company. The Company has not experienced any strike, grievance
or any court or arbitration proceeding, claim of unfair labor practices filed
against the Company or, threatened to be filed against the Company or any other
material labor difficulty, and there is no organized labor strike pending, or
threatened against the Company. There is no work stoppage, slow down or lockout
pending involving the Company or, threatened involving the Company. There is no
labor union of which any of the Company's employees is a member.
Except as set forth in Section 5(r) of the Disclosure Schedule, there are no
claims pending or, threatened relating to the Company's employees for
compensation for any injury, disability or illness resulting from their
employment or overtime work.
The Company has been and until the Closing Date will be, in full compliance with
all statutory, regulatory or contractual requirements with respect to its
employees. There are no complaints, claims or charges outstanding, or,
anticipated, nor are there any orders, decisions, judgments or convictions
against or in respect of the Company in connection with its business or its
employees under any employment legislation or contract.
(s) Undisclosed Liabilities. Except as set forth in Section 5(s) of the
Disclosure Schedules or other sections of the Disclosure Schedules, the Company
has no liability related to its business, except for (i) liabilities set forth
on the face of the Most Recent Balance Sheet and (ii) liabilities that have
arisen after the Most Recent Balance Sheet in the Ordinary Course of Business
(none of which results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, breach of warranty, tort, infringement, or
violation of law.)
6. Pre-Closing Covenants. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its reasonable best efforts to
take all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 8 below).
(b) Notices and Consents. Each of the Parties will (and the Seller will cause
the Company to) give any notices to, make any filings with, and use its
reasonable best efforts to obtain any authorizations, consents, and approvals of
governments and governmental agencies in connection with the matters referred to
in Section 4(a)(i) and (ii), Section 4(b)(i) and (ii) and Section 5(c) above.
(c) Operation of Business. Unless previously approved in writing by the Buyer,
the Seller will not permit the Company to engage and the Buyer will not engage
in any practice, take any action, or enter into any transaction outside the
Ordinary Course of Business.
(d) Full Access. The Seller will permit, and the Seller will cause the Company
to permit, representatives of the Buyer to have full access at all reasonable
times, at Buyer's cost and expense, and in a manner so as not to interfere with
the normal business operations of the Company, to all premises, properties,
personnel, books, records (including tax records), contracts, and documents of
or pertaining to the Company. The Buyer will treat and hold as such any
Confidential Information it receives from the Seller and the Company, in the
course of the reviews contemplated by this Section 8(d), will not use any of the
Confidential Information except in connection with this Agreement, and, if this
Agreement is terminated for any reason whatsoever, will return to the Seller and
the Company all tangible embodiments (and all copies) of the Confidential
Information which are in its possession.
(e) Notice of Developments.
(i) The Seller shall notify the Buyer of any development causing a material
breach of any of the representations and warranties in Section 5 above. Unless
the Buyer has the right to terminate this Agreement pursuant to Section
10(a)(ii) below by reason of the development and exercises that right within the
period of 5 business days referred to in Section 10(a)(ii) below, the written
notice pursuant to this Section 6(e)(i) will be deemed to have amended the
Disclosure Schedule, to have qualified the representations and warranties
contained in Section 5 above, and to have cured any misrepresentation or breach
of warranty that otherwise might have existed hereunder by reason of the
development.
(ii) Each Party will give prompt written notice to the others of any material
adverse development causing a breach of any of his or its own representations
and warranties in Section 4 above. No disclosure by any Party pursuant to this
Section 6(e)(ii), however, shall be deemed to amend or supplement the Disclosure
Schedule or to prevent or cure any misrepresentation or breach of warranty.
7. Post-Closing Covenants. The Parties agree as follows with respect to the
period following the Closing.
(a) General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 9 below).
(b) Litigation Support. In the event and for so long as any Party actively is
contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Company, each of the other Parties shall cooperate with it and its
counsel in the defense or contest, make available their personnel, and provide
such testimony and access to their books and records as shall be necessary in
connection with the defense or contest, all at the sole cost and expense of the
contesting or defending Party (unless the contesting or defending Party is
entitled to indemnification therefor under Section 9 below).
(c) Transition. Except as requested by Buyer in writing, the Seller will not
take any action that is designed or intended to have the effect of discouraging
any lessor, licensor, customer, supplier, or other business associate of the
Company from maintaining the same business relationships with the Company after
the Closing as it maintained with the Company prior to the Closing.
(d) Seller's Employment Agreement. As a condition to Closing, the Seller shall
enter into an employment agreement with the Buyer, in substantially the form
attached hereto as Exhibit D, effective as of the Closing Date.
(e) Company Employees. All employees of the Company as of the Closing Date will
be considered in good faith for continued employment following the Closing Date.
The Parties shall mutually agree upon which such employees to retain.
(f) Reimbursement for Taxes. If at anytime following the Closing, the Internal
Revenue Service shall determine that the Company was not eligible at anytime
prior to the Closing to use the cash method of accounting for computing taxable
income for income tax purposes, then the Buyer hereby agrees to reimburse Seller
for up to $100,000.00 of taxes, penalties and interest incurred by Seller as to
such adjustment by the Internal Revenue Service. Any reimbursement required
pursuant to this paragraph shall be made by the Buyer within ten (10) business
days following Seller giving written notice to Buyer of Seller's intention to
pay such amount on such tenth day.
8. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4(a) and Section 5
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Seller shall have performed and complied with all of his covenants
hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling, or
charge in effect preventing consummation of any of the transactions contemplated
by this Agreement;
(iv) the Seller shall have delivered to the Buyer a certificate to the effect
that each of the conditions specified above in Section 8(a)(i)-(iii) is
satisfied in all respects;
(v) the Parties shall have received all authorizations, consents, and approvals
of governments and governmental agencies referred to in Section 4(a)(ii),
Section 4(b)(ii), and Section 5(c) above;
(vi) the Seller and the Company shall have entered into an employment agreement
pursuant to which the Seller is employed by the Company in substantially the
form attached hereto as Exhibit D;
(vii) [reserved.];
(viii) with respect to any consulting contract to which the Company is a party,
all consents to the assignment of such contracts that are required because of
this transaction, shall have been obtained by the Seller;
(ix) the Buyer shall have received from counsel to the Seller an opinion in form
and substance as set forth in Exhibit C attached hereto, addressed to the Buyer,
and dated as of the Closing Date; and
(x) all actions to be taken by the Seller in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby will
be reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 8(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4(b) above shall be
true and correct in all material respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling, or
charge in effect preventing consummation of any of the transactions contemplated
by this Agreement;
(iv) the Buyer shall have delivered to the Seller a certificate to the effect
that each of the conditions specified above in Section 8(b)(i)-(iii) is
satisfied in all respects;
(v) the Parties shall have received all authorizations, consents, and approvals
of governments and governmental agencies referred to in Section 4(a)(ii),
Section 4(b)(ii), and Section 5(c) above;
(vi) the Seller and the Company shall have entered into an employment agreement
pursuant to which the Seller is employed by the Company in substantially the
form attached hereto as Exhibit D;
(vii) all actions to be taken by the Buyer in connection with consummation of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to the
Seller; and
(viii) the Seller shall have received the initial installment of the Purchase
Price as contemplated by Section 2 hereof.
(ix) the Buyer and the Seller shall have entered into a registration rights
agreement in substantially the form of Exhibit E hereto.
(x) the Buyer and the Seller shall have entered into a security agreement in
substantially the form of Exhibit F hereto.
(xi) the Seller shall have received from counsel to the Buyer an opinion in form
and substance as set forth in Exhibit H attached hereto, addressed to the
Seller, and dated as of the Closing Date.
(xii) all actions to be taken by the Buyer in connection with consummation of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to the
Seller.
The Seller may waive any condition specified in this Section 8(b) if they
execute a writing so stating at or prior to the Closing.
9. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. The representations and
warranties of the Parties shall survive the Closing for a period of two years
from the Closing Date, except the representations and warranties contained in
Sections 4(a)(i) and (iv) and Section 5(a) shall survive indefinitely and the
representations and warranties contained in Section 5(p) and (j) shall survive
until the applicable statute of limitations with respect thereto expire.
(b) Obligations of Seller. Effective as of the Closing, and ending on the third
anniversary thereof, Seller agrees to indemnify and hold harmless Buyer, and its
Affiliates, directors, officers, employees, agents and assigns (each, a "Buyer
Indemnified Party") from and against any and all Adverse Consequences as a
result of, or based upon or arising from or in relation to:
(i) the breach of any of the representations and warranties made by Seller in
this Agreement, any schedule or certificate or other document delivered pursuant
or in relation, to this Agreement; and
(ii) any breach of any of the covenants made by Seller in this Agreement, any
schedule or certificate or other document delivered pursuant or in relation, to
this Agreement;
provided that Seller shall not be required to indemnify or hold harmless any
Buyer Indemnified Party for any such Losses to the extent the Purchase Price has
been adjusted pursuant to Section 2 in connection therewith.
(c) Indemnification Obligations of Buyer. For a period commencing as of the
Closing Date and ending on the second anniversary thereof (and with respect to
indemnity for matters set forth in Section 9(a) above for representations and
warranties that extend beyond the two year period until the expiration of the
stated periods), Buyer shall indemnify Seller, from and against any Adverse
Consequences as a result of, or based upon or arising from:
(i) the material breach of any of the representations and warranties made by
Buyer in this Agreement; and
(ii) any material breach of any of the covenants made by Buyer in this
Agreement.
(d) Procedures. For purposes of this section, any party with an indemnification
obligation under this section shall be referred to herein as an "Indemnifying
Party" and any party entitled to indemnification under this section shall be
referred to as an "Indemnified Party". All claims for indemnification by any
Indemnified Party hereunder shall be asserted and resolved as set forth in this
section. In the event that any written claim or demand for which an Indemnifying
Party would be liable to any Indemnified Party hereunder is asserted against or
sought to be collected from any Indemnified Party by a third party, such
Indemnified Party shall promptly, but in no event more than 30 days following
such Indemnified Party's receipt of such claim or demand, notify the
Indemnifying Party of such claim or demand and the amount or the estimated
amount thereof to the extent then feasible (which estimate shall not be
conclusive of the final amount of such claim and demand) (the "Claim Notice").
The Indemnifying Party shall have 30 days from the personal delivery or receipt
of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a)
whether or not the Indemnifying Party disputes the liability of the Indemnifying
Party to the Indemnified Party hereunder with respect to such claim or demand
and (b) whether or not it desires to defend the Indemnified Party against such
claim or demand. All costs and expenses incurred by the Indemnifying Party in
defending such claim or demand shall be a liability of, and shall be paid by,
the Indemnifying Party. In the event that the Indemnifying Party notifies the
Indemnified Party within the Notice Period that it desires to defend the
Indemnified Party against such claim or demand and except as hereinafter
provided, the Indemnifying Party shall have the right to defend the Indemnified
Party (i) by appropriate proceedings and (ii) use or retain counsel in
connection with such defense that is reasonably acceptable to the Indemnified
Party. The Indemnified Party shall make available to the Indemnifying Party all
information reasonably available to such Indemnified Party relating to such
claim or demand. In addition, the Indemnified Party and the Indemnifying Party
shall render to each other such assistance as may reasonably be requested in
order to ensure the proper and adequate defense of any such claim or demand, or
to prosecute claims against third parties for contribution or on other theories
of recovery related to such claim or demand. The party in charge of the defense
shall keep the other party fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. If any Indemnified
Party desires to participate in, but not control, any such defense or settlement
it may do so at its sole cost and expense. In the event that the Indemnifying
Party does not elect to defend the claim, the Indemnified Party shall not settle
a claim or demand without the consent of the Indemnifying Party (which consent
will not be unreasonably withheld). The Indemnifying Party shall not, without
the prior written consent of the Indemnified Party (which consent will not be
unreasonably withheld), settle, compromise or offer to settle or compromise any
such claim or demand. If the Indemnifying Party elects not to defend the
Indemnified Party against such claim or demand, whether by not giving the
Indemnified Party timely notice as provided above or otherwise, then the amount
of any such claim or demand, or, if the same be contested by the Indemnified
Party, then that portion thereof as to which such defense is unsuccessful (and
the reasonable costs and expenses pertaining to such defense) shall be the
liability of the Indemnifying Party hereunder. To the extent the Indemnifying
Party shall control or participate in the defense or settlement of any third
party claim or demand, the Indemnified Party will give to the Indemnifying Party
and its counsel access to, during normal business hours, the relevant business
records and other documents, and shall permit them to consult with the employees
and counsel of the Indemnified Party. The Indemnified Party shall use its
commercially reasonable best efforts in the defense of all such claims.
(e) Adjustments to Losses. The amount of any Loss entitling a party to
indemnification under this section shall be reduced by the amount of any
insurance proceeds recovered by the Indemnified Party for such Loss, net of all
costs and expenses incurred in collecting such insurance proceeds (including,
without limitation, reasonable attorneys' fees).
(f) Maximum Indemnification. In no event shall the Seller be liable for
indemnification pursuant to this Section 9 in an amount that exceeds the
Purchase Price.
(g) Time For Making Claims. No claim for indemnification hereunder will be valid
unless it is submitted in writing within the indemnification periods set forth
in Section 9(c) of this Agreement. Nevertheless, once a claim is timely made
under this Agreement, Adverse Consequences arising after the time period expires
for making such claim that relate to such claim, shall be recoverable.
(h) Exclusive Remedy. This section shall be the exclusive remedies of the
Parties hereto for damages under this Agreement and shall be deemed to preclude
the exercise of any other rights and the pursuit of other remedies (whether in
contract, tort or otherwise) in damages for the breach (or alleged breach) of
any representation, warranty, covenant or agreement contained herein or made
pursuant hereto; provided, however, that these exclusive remedies for damages
will not be construed to preclude a party from bringing an action for specific
performance or other equitable remedy to require the other parties to perform
its or their obligations under this Agreement.
(i) Treatment of Payments. All payments made pursuant to this Article 9 shall be
treated as adjustments to the purchase price for the Company Shares.
Notwithstanding anything in this Agreement to the contrary, Buyer shall not be
indemnified or reimbursed for any tax consequences arising from the receipt or
accrual of an indemnity payment hereunder, including, without limitation, any
such consequences arising from adjustments to the basis of any asset resulting
from an adjustment to the Purchase Price, or any additional Taxes resulting from
any such basis adjustment.
(j) Offset. To the extent the Purchase Price is deferred pursuant to Section
2(b), Buyer shall have the right to offset against such deferred payments any
claim that it has against Seller for indemnity pursuant to this Agreement.
10. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Seller may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice to the
Seller at any time prior to the Closing in the event (A) the Seller has within
the then previous five (5) business days given the Buyer any notice pursuant to
Section 6(e)(i) above and (B) the development that is the subject of the notice
has had a material adverse effect upon the financial condition of the Company;
(iii) the Buyer may terminate this Agreement by giving written notice to the
Seller at any time prior to the Closing (A) in the event the Seller has breached
any material representation, warranty, or covenant contained in this Agreement
(other than the representations and warranties in Section 5 above) in any
material respect, the Buyer has notified the Seller of the breach, and the
breach has continued without cure for a period of fifteen (15) days after the
notice of breach or (B) if the Closing shall not have occurred on or before
January 3, 2005, by reason of the failure of any condition precedent under
Section 8(a) hereof (unless the failure results primarily from the Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement);
(iv) the Seller may terminate this Agreement by giving written notice to the
Buyer at any time prior to the Closing (A) in the event the Buyer has breached
any material representation, warranty, or covenant contained in this Agreement
in any material respect, the Seller has notified the Buyer of the breach, and
the breach has continued without cure for a period of fifteen (15) days after
the notice of breach or (B) if the Closing shall not have occurred on or before
January 3, 2005, by reason of the failure of any condition precedent under
Section 8(b) hereof (unless the failure results primarily from any of the Seller
themselves breaching any representation, warranty, or covenant contained in this
Agreement); and
(v) the Seller may terminate this Agreement by giving written notice to the
Buyer at any time prior to the Closing in the event there is any change or
development in Buyer's business that will have or has had a material adverse
effect upon the financial condition of the Buyer.
(b) Effect of Termination. If any Party terminates this Agreement pursuant to
Section 10(a) above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to any other Party (except for any
liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in Section 6(d) above shall survive
termination.
(c) Break-Up Fee. If the Buyer terminates this Agreement pursuant to Section
10(a)(iii) above, the Seller shall pay to the Buyer a break-up fee of $250,000.
If the Seller terminates this Agreement pursuant to Section 10(a)(iv), the Buyer
shall pay the Seller a break-up fee of $250,000. To secure these obligations, on
the date of this Agreement, each of the Buyer and the Seller shall deposit
$250,000 into escrow pursuant to the Escrow Agreement attached hereto as Exhibit
G.
11. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written approval of the Buyer
and the Seller; provided, however, that any Party may make any public disclosure
it believes in good faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities (in which case the
disclosing Party will use its best efforts to advise the other Parties prior to
making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred to
herein), together with the Letter of Intent previously executed by the Parties,
constitutes the entire agreement among the Parties and supersedes any prior
understandings, agreements, or representations by or among the Parties, written
or oral, to the extent they have related in any way to the subject matter
hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of his or
its rights, interests, or obligations hereunder without the prior written
approval of the Buyer and the Seller; provided, however, that the Buyer may (i)
assign any or all of its rights and interests hereunder to one or more of its
Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Buyer nonetheless shall
remain responsible for the performance of all of its obligations hereunder).
(e) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx XX
If to the Buyer: Digital Fusion, Inc.
0000-X Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxx III
with a copy to: Holland & Xxxxxx XXX
X. X. Xxx 0000
Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Alabama without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Alabama or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Alabama.
(i) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Buyer and
the Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
(k) Expenses. Each of the Buyer, the Seller and the Company shall bear its own
fees, costs and expenses (including legal, accounting and consulting fees and
expenses) incurred in connection with this Agreement or the transactions
contemplated hereby.
(l) Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
(m) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
* * * * *
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
"Buyer"
DIGITAL FUSION, INC.,
a Delaware corporation
By:
Name: Xxx X. Xxxxxxx III
Title: President
"Seller"
Xxxxxxx X. Xxxxx, an individual
# 2226718_v6
