EXECUTIVE EMPLOYMENT AGREEMENT
This
EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"),
effective this 19th day of January, 2007 ("Effective
Date"),
between FORTRESS
AMERICA ACQUISITION CORPORATION, a
Delaware corporation (the "Company")
and
XXXXXX X. XXXXXXXXX (the "Executive").
WITNESSETH
WHEREAS,
Executive and Xxxxxx X. Xxxxxx (“Xxxxxx”)
were
all of the members of VTC, LLC, a Maryland limited liability company
(“VTC”)
and
Vortech, LLC (“Vortech”).
WHEREAS,
by the terms of a Second Amended and Restated Membership Interest Purchase
Agreement dated July 31, 2006 (the “Purchase
Agreement”)by
and
among the Company, the Executive, Xxxxxx, VTC and Vortech, Company purchased
from Executive and Xxxxxx all of their respective membership interests in each
of VTC and Vortech.
WHEREAS
as an inducement for and condition to the Company entering into and executing
and delivering the Purchase Agreement, the Company requires that the Employee
enter into this Agreement for the purpose of retaining the Executive’s services
upon the terms and conditions set forth below.
WHEREAS,
the Executive is willing to provide services to the Company upon the terms
and
conditions set forth herein.
NOW
THEREFORE, in consideration of the promises and the mutual agreements contained
herein, intending to be legally bound, the parties agree as
follows:
1. DEFINITIONS
The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
1.1. Affiliates.
"Affiliates"
of a
Person, or a Person "affiliated"
with
another Person, are any Persons which, directly or indirectly, through one
or
more intermediaries, controls or are controlled by or are under common control
with, the Person specified.
1.2. Base
Salary.
"Base
Salary"
shall
have the meaning set forth in Section
3.1
hereof.
1.3. Board.
"Board"
means
the Company’s Board of Directors.
1.4. Cause.
1.4.1 Termination
of the Executive’s employment for "Cause"
shall
mean any of the following:
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(i) any
act
that would constitute a material violation of the Company’s material written
policies provided that the Company specifically terminates the Executive's
employment for Cause hereunder within 120 days from the date the Company has
actual notice of such;
(ii) intentionally
engaging in conduct materially and demonstrably injurious to the Company
provided that the Company specifically terminates the Executive's employment
for
Cause hereunder within 120 days from the date the Company has actual notice
of
such; or
(iii) conviction
of (1) a crime of embezzlement or a crime involving moral turpitude; (2) a
crime
with respect to the Company involving a breach of trust or dishonesty; or (3)
in
either case, a plea of guilty or no contest to such a crime provided that the
Company specifically terminates the Executive's employment for Cause hereunder
within 120 days from the date the Company has actual notice of
such.
1.4.2 In
any
case, if the Company desires to terminate the Executive's employment for Cause
in accordance with Sections 1.4.1(i), (ii) or (iii), it shall first give written
notice of the facts and circumstances providing the basis for Cause to the
Executive, and to allow the Executive 30 days from the date of such notice
to
remedy, cure or rectify, if possible, the situation giving rise to the Company's
allegations of Cause (the "Cure Period"); provided, however, that the Executive
shall have only one such opportunity to cure, regardless of the grounds on
which
Cause is asserted, during the Employment Period. During the Cure Period, the
Executive may not be entitled to payment of any compensation, in the Company's
sole discretion; provided, however, that if the Executive's compensation is
withheld and the Executive successfully remedies, cures, or rectifies the
situation giving rise to the Company's notice of Cause during the Cure Period,
resulting in the Company's withdrawal of its written notice of Cause, the
Executive shall be compensated for the Cure Period.
1.4.3 A
termination for Cause after a Change in Control shall be based only on events
occurring after such Change in Control; provided, however, the foregoing
limitation shall not apply to an event constituting Cause which was not
discovered by the Company prior to a Change in Control.
1.4.4 Cause
shall be determined in good faith by the affirmative vote of a majority of
the
whole Board (excluding the Executive if the Executive is a member of the Board).
1.4.A Change
in Control of the Company.
"Change
in Control of the Company"
means
(a) a sale, transfer or exclusive licensing by the Company of all or
substantially all of the assets of the Company and its Subsidiaries on a
consolidated basis (measured by either book value in accordance with United
States generally accepted accounting principles consistently applied or fair
market value determined in the reasonable good faith judgment of the Board)
in
any transaction or series of transactions (other than sales in the ordinary
course of business); (b) any sale, transfer or issuance or series of sales,
transfers and/or issuances of shares of the Company's capital stock by the
Company or any holders thereof which results in any Person or Persons, other
than the holders of Company’s capital stock as of the date hereof, owning
capital stock of the Company possessing the voting power (under ordinary
circumstances) to elect a majority of the Board; (c) the stockholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 50% of the total voting
power represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; or (d) the
stockholders of the Corporation approve a plan of complete liquidation of the
Company.
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1.5. Date
of Termination.
"Date
of Termination"
shall
mean (a) if the Executive’s employment is terminated by reason of the
Executive’s death, the date of the Executive’s death, or (b) if the Executive’s
employment with the Company and its Subsidiaries is terminated for any reason
other than the Executive’s death, the date on which Executive ceases to be an
employee of the Company and its Subsidiaries.
1.6. Disability. Termination
of the Executive’s employment with the Company and its Subsidiaries based on
"Disability"
shall
mean termination of the Executive’s employment at the Company’s sole discretion,
upon thirty (30) days prior written notice in the event the Executive becomes
“Disabled,” as defined in any group term disability insurance maintained by the
Company applicable to the Executive, or, (b) if the Company shall not maintain
such insurance, the determination by an independent physician acting reasonably
and in good faith that the Executive is incapacitated by reason of a physical
or
mental illness which is long-term in nature and which prevents the Executive
from performing the substantial and material duties of his employment with
the
Company, provided
that
such incapacity can reasonably be expected to prevent the Executive from working
at least six (6) months in any twelve (12) month period. The Company may require
the Executive to have the examination described in the preceding sentence at
any
time for the purpose of determining whether the Executive has a long-term
disability, and the Executive agrees to submit to such examination upon request
of the Board; provided
that the
Company shall pay all costs and expenses associated with such examination.
This
Section
1.6
shall be
interpreted and applied consistently with the Americans with Disabilities Act,
the Family and Medical Leave Act and other applicable law.
1.7. Good
Reason.
Termination of the Executive’s employment by the Executive for a "Good
Reason"
shall
mean termination by the Executive because of: (a) a requirement to move the
Executive’s primary place of business more than twenty-five (25) miles from the
office the Executive works in on the date hereof (which termination occurs
prior
to such move) without the written consent of the Executive, (b) failure of
the
Company to pay any installment of the Executive’s Base Salary when such
installment is due pursuant to this Agreement, which failure is not cured within
fifteen (15) days; (c) any other breach or breaches of this Agreement by the
Company, which breaches are, singularly or in the aggregate, material, and
which
are not cured within thirty (30) days of written notice of such breach or
breaches to the Company by the Executive; or (d) a reduction by the Company
of
the Executive’s Base Salary without the express written consent of the
Executive.
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1.8. Person.
"Person"
means
an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, any other business entity and a governmental entity or any
department, agency or political subdivision thereof.
1.9. Restrictive
Period.
For
purposes of this Agreement the term “Restrictive
Period”
shall
have the following meanings.
1.9.1 If
the
Executive’s employment is terminated prior to the third (3rd)
anniversary of the Closing Date, then the Restrictive Period shall be the period
from the Termination Date through the third anniversary of the Closing Date
(or
if the Termination Date is within twelve (12) months of the third anniversary
of
the Closing Date), then for a period of one (1) year measured from the
Termination Date through the first anniversary of the Termination Date.
1.9.2 Subject
to Section
7.4
hereof,
If the Executive’s employment is terminated after the third anniversary of the
Closing Date, then the Restrictive Period shall be the twelve month period
measured from the Termination Date through the first anniversary of the
Termination Date.
1.10. Subsidiary.
"Subsidiary"
means,
with respect to any Person, any corporation, limited liability company,
partnership, association or other business entity of which (a) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (b) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control
any
managing director or general partner of such limited liability company,
partnership, association or other business entity.
2. EMPLOYMENT
2.1. Employment
Period.
2.1.1 Expressly
conditioned upon the closing (the “Closing”)
under
the Purchase Agreement and effective as of the date of the Closing (the
“Closing
Date”),
the
Company hereby employs the Executive, and the Executive hereby accepts said
employment and agrees to render services to the Company, on the terms and
conditions set forth in this Agreement for the period (the "Employment
Period")
beginning on the Closing Date and ending when such period is terminated pursuant
to the terms hereof. Unless earlier terminated by either the Company or the
Executive as hereinafter provided, the Employment Period shall continue through
the third (3rd)
anniversary of the Closing Date ("Expiration
Date");
provided, however, that if this Agreement is renewed pursuant to Section 2.1.2)
below, then the “Expiration Date” for the then current “Renewal Term” (as
hereinafter defined) shall be the date that is last day of the one year period
of any Renewal Term. Notwithstanding anything to the contrary continued in
this
Section
2.1.1,
if the
Closing under the Purchase Agreement does not occur, this Agreement shall be
null and void and of no force and effect.
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2.1.2 This
Agreement shall be automatically renewed for an additional one year period
commencing at the expiration of the initial Employment Period or any subsequent
renewal term (each, a "Renewal
Term")
unless
the Company provides written notice of termination to the Executive not less
than sixty (60) days prior to the Expiration Date. Notwithstanding the foregoing
or anything else in this Agreement to the contrary, the Employment Period shall
immediately terminate prior to any Expiration Date (i) upon Executive’s death,
Disability or termination for a Good Reason or (ii) upon termination by the
Company for Cause; in all other circumstances, thirty (30) days' prior written
notice is required by either party to the other to terminate this
Agreement.
2.2. Duties. During
the Employment Period, the Executive shall devote the Executive's full working
time and attention and use the Executive's best efforts and skill to further
the
interests of the Company. The Executive shall, to the best of his ability,
execute the strategic plan of the Company as approved by the Board, perform
his
duties, adhere to the Company’s published policies and procedures, promote the
Company’s interests, reputation, business and welfare, and work actively with
the Board and other senior managers to help augment the existing business base,
increase the corporate contract backlog and identify and develop new business
opportunities. The Executive shall perform such services for the Company as
is
consistent with the Executive's position (subject to the power and authority
of
the Board to expand or limit such services and to overrule actions of officers
of the Company) and as lawfully directed, from time to time, by the Board.
During the Employment Period, the Executive’s title shall be President and Chief
Operating Officer. During the Employment Period the Executive shall report
to
the Board, and Executive may use such additional titles as assigned and approved
by the Board. The Executive shall not, during the Employment Period, be employed
or involved in any other business activity for gain, profit or other pecuniary
advantage. Notwithstanding the foregoing, the Executive may (a) volunteer
services for or on behalf of such religious, educational, non-profit and/or
other charitable organization as the Executive may wish to serve; and (b) manage
his personal, financial and legal affairs, so long as such activities do not
interfere with the performance of his duties and responsibilities to the Company
as provided hereunder or violate any of the terms of this or any other agreement
entered into with the Company. The Executive acknowledges that the Executive
may
be required to travel on business in connection with the Executive's performance
of the Executive's duties hereunder, but that the Executive's base will be
the
location of the Company’s headquarters in Columbia or Beltsville, Maryland or
such other location as determined by the Board.
2.3. Insurance.
The
Company may, at its discretion, apply for and procure in its own name and for
its own benefit life and/or disability insurance on the Executive in any amount
or amounts considered available. The Executive agrees to cooperate in any
medical or other examination, supply any information and execute and deliver
any
applications or other instruments in writing as may be reasonably necessary
to
obtain and constitute such insurance. The Executive hereby represents that
the
Executive has no reason to believe that the Executive's life is not insurable
at
rates now prevailing for a healthy person of the Executive's gender and
age.
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2.4. Corporate
Opportunity.
The
Executive agrees that, unless approved by the Board, he will not take personal
advantage of any business opportunities which arise during his employment with
the Company and which may be of benefit to the Company. All material facts
regarding such opportunities must be promptly reported to the Board for
consideration by the Company.
3. COMPENSATION
AND BENEFITS
3.1. Base
Salary.
During
the Employment Period, the Company shall pay the Executive an initial base
salary of Four Hundred Twenty Five Thousand Dollars ($425,000.00) per year
("Base
Salary")
paid
in approximately equal installments bi-weekly. The Company will review the
Executive’s Base Salary on December 31 of each year of the Employment Period in
order to determine what Base Salary adjustments, if any, shall be made, subject
to an annual minimum increase of five percent (5%), but in no event may the
Executive's Base Salary be reduced below that paid in the preceding
year.
3.2. Annual
Bonus.
For
calendar year 2006 (ending on or about December 31, 2006) and for each
other calendar year that begins during the Employment Period (each such calendar
year, a "Bonus
Year"),
the
Executive shall be eligible to receive a bonus in an amount and on such terms
as
are established by the Company's Board up to fifty percent (50%) of the Base
Salary (each, a "Bonus")
in
accordance with the bonus plan or formula applicable to the Executive. The
2006
Bonus shall be prorated to reflect that the 2006 Bonus Year is a partial year
commencing on the Closing Date and ending on December 31, 2006. In
addition, the Executive shall be eligible for any other bonus as the Board
may
determine in its sole discretion. Any Bonus for an applicable calendar year,
or
portion thereof, shall be paid to the Executive no later than the conclusion
of
the first calendar quarter following each calendar year.
3.3. Vacation
and Benefits. The
Executive shall continue to receive vacation, health insurance and other
employee benefits as the Company makes available to other executives, as may
exist at any particular time and from time to time during the Executive’s
employment.
3.4. Withholding.
All
payments required to be made by the Company hereunder to the Executive shall
be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Company may reasonably determine should be withheld
pursuant to any applicable law or regulation.
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3.5. Policies,
Procedures & Benefit Plans.
Except
as otherwise provided herein, the Executive’s employment shall be subject to the
policies and procedures which apply generally to the Company’s employees as the
same may be interpreted, adopted, revised or deleted from time to time, during
the Employment Period, by the Board in its sole discretion. The Executive agrees
to comply with such policies and procedures in all material respects. During
the
Employment Period, the Executive shall be entitled to participate in any Company
benefit plans on the same basis as other executive level employees of the
Company. The Board reserves the right to change, alter, or terminate benefits,
plans and carriers in its sole direction. All matters of eligibility for
coverage or benefits under any health, hospitalization, life, disability, or
other insurance plan, program or policy shall be determined in accordance with
the provisions of the plan, program, or policy; the Company shall not be liable
to the Executive, the Executive’s family, heirs, executors, or beneficiaries,
for any payment payable or claimed to be payable under any such benefit plan,
program, or policy. Provided that the Executive can be insured at standard
rates, the Company shall maintain the Executive’s existing life insurance
policy(ies) as set forth on Exhibit
A
attached
hereto, or if it is not possible to continue the existing policies, then provide
the Executive a $1,000,000 life insurance policy with a reputable and
responsible insurance company acceptable to the Company and the
Executive.
3.6. Stock
Bonus.
Subject
to Section
3.6.4
below,
as of July 13, 2008 (the period between the Effective Date and July 13, 2008
being hereinafter referred to as the “Stock
Bonus Period”),
Executive shall be entitled to receive up to Five Million Dollars
($5,000,000.00) worth of the Company’s common stock (the “Stock
Bonus”)
depending on whether during the Stock Bonus Period the highest average closing
price of the Company’s common stock (on the Nasdaq OTC market or such other
recognized stock market on which the Company’s stock is then being traded on)
for sixty (60) consecutive trading days (the “Highest
Average Trading Price”)
exceeds the applicable “Stock Bonus Closing Price Thresholds” set forth
below.
3.6.1 For
purposes of this Agreement (A) the “Stock
Bonus Closing Price Thresholds”
are
as
follows (each of which is individually referred to as a “Stock
Bonus Closing Price Threshold”);
(B)
the “Stock
Bonus Threshold Share Value”
for
each Stock Bonus Closing Price Threshold shall be the dollar amount ($500,000,
$1,000,000, $1,500,000 or $2,000,000 as the case may be) for that Stock Bonus
Closing Price Threshold as set forth below; (C) the “Minimum
Threshold Share Price”
with
respect to each Stock Bonus Closing Price Threshold is the maximum price per
share that is within that Stock Bonus Closing Price Threshold ($9.01, $10.01,
$12.01, or $14.01 as the case may be); and (D) the “Threshold
Share Price Range”
for
each Stock Bonus Closing Price Threshold shall be the price per share range
referenced therein ($9.01 - $10.00, $10.01 - $12.00, $12.01 - $14.00 and $14.01,
as the case may be).
(i) If
during
the Stock Bonus Period the Highest Average Trading Price never exceeds Nine
Dollars ($9.00) per share, then no Company common stock shall be issuable to
Executive at the end of the Stock Bonus Period.
(ii) If
during
the Stock Bonus Period the Highest Average Trading Price is in excess of Nine
Dollars ($9.00), then Executive shall be entitled to receive Five Hundred
Thousand Dollars ($500,000.00) of Company common stock.
(iii) If
during
the Stock Bonus Period the Highest Average Trading Price is in excess of Ten
Dollars ($10.00), then Executive shall be entitled to receive, in addition
to
the Company common stock referenced in Section
3.6.1(ii)
above,
an additional One Million Dollars ($1,000,000.00) of Company common
stock.
(iv) If
during
the Stock Bonus Period the Highest Average Trading Price is in excess of Twelve
Dollars ($12.00), then Executive shall be entitled to receive, in addition
to
the Company common stock referenced in Sections
3.6.1(ii) and (iii)
above,
an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) of
Company common stock.
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(v) If
during
the Stock Bonus Period the Highest Average Trading Price is in excess of
Fourteen Dollars ($14.00) per share, then Executive shall be entitled to receive
, in addition to the Company common stock referenced in Sections
3.6.1(ii) -(iv)
above,
an additional Two Million Dollars ($2,000,000.00) of Company common stock (based
on the Highest Average Trading Price).
3.6.2 Determination
of Company Shares Payable as Stock Bonus. The
number of shares Company common stock to be issued as the Stock Bonus shall
be
determined at the end of the Stock Bonus Period as follows:
(i) determining
the Highest Average Trading Price during the Stock Bonus Period;
(ii) determining
which Stock Bonus Closing Price Thresholds are applicable (the applicable Stock
Bonus Thresholds being (y) the Stock Bonus Closing Price Thresholds for which
the Highest Average Trading Price falls within the applicable Threshold Share
Price Range (the “Maximum
Stock Bonus Closing Price Threshold”)
and
(z) all other Stock Bonus Price Thresholds for which the Highest Average Trading
Price exceeds the applicable Threshold Share Price Range (collectively with
the
Maximum Stock Bonus Closing Price Threshold referred to as the “Effected
Stock Bonus Closing Price Thresholds”));
and
(iii) dividing
the applicable Stock Bonus Threshold Share Value for each of the Effected Stock
Bonus Closing Price Thresholds by the applicable Minimum Threshold Share Price
for each of the Effected Stock Bonus Closing Price Thresholds (other than the
Maximum Stock Bonus Closing Price Threshold for which the Stock Bonus Share
Value shall be divided by the Highest Average Trading Price).
FOR
EXAMPLE
If
at the
end of the Stock Bonus Period the Highest Average Trading Price was $14.50;
then
(A) the Effected Stock Bonus Closing Price Thresholds consists of all of the
Stock Bonus Closing Price Thresholds; and (B) the division of (y) the Stock
Bonus Threshold Share Value for each of the Effected Stock Bonus Closing Price
Thresholds by the Minimum Threshold Share Price for each of the Effected Stock
Bonus Closing Price Thresholds other than the Maximum Stock Bonus Closing Price
Threshold and (z) the Stock Bonus Share Value for the Maximum Stock Bonus
Closing Price Threshold by the Highest Average Trading Price results in the
following:
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| $500,000 ∕ $9.01 per share = | 55,493 shares |
| $1,000,000 ∕ $10.01 per share = | 99,900 shares |
| $1,500,000 ∕ $12.01 per share = | 124,895 shares |
| $2,000,000 ∕ $14.50 per share = | 137,931 shares |
| Total Stock Bonus | 418,219 shares |
The
determination of the Highest Average Trading Price and the calculation of the
number of shares of Company stock that are issuable to the Executive as Stock
Bonus shall be made as follows. Not later than twenty (20) Business Days after
the Stock Bonus Period, the Company’s senior financial executive shall provide
Executive with a statement (the “Stock
Bonus Statement”)
setting forth the calculation of the Stock Bonus that shall include the
calculations used to determine the Stock Bonus. Executive shall have fifteen
(15) days following delivery of the Stock Bonus Statement (the “Stock
Bonus Notice Period”)
to
disagree with Stock Bonus Statement by written notice to the Company setting
forth in reasonable detail the amount and nature of the disagreement (each
an
“Stock
Bonus Dispute Notice”).
If
the Company does not receive a Stock Bonus Dispute Notice from Executive within
the Stock Bonus Notice Period, Executive shall be conclusively presumed to
agree
with the Stock Bonus Statement and the Company shall promptly issue the Stock
Bonus shown to be due on the Stock Bonus Statement to Executive pursuant to
Section
3.6.3
below.
If the Company receives a Stock Bonus Dispute Notice from Executive within
the
Stock Bonus Notice Period then the dispute shall be resolved pursuant to
Section
9
below.
3.6.3 Delivery
of Stock Bonus.
The
Company shall deliver, or shall cause to be delivered to Executive stock
certificates for any Stock Bonus.
3.6.4 Forfeiture
of Stock Bonus.
Notwithstanding anything to the contrary contained in this Section
3.6,
if
during the Stock Bonus Period Executive’s employment is terminated pursuant to
Section
5.1
of this
Agreement, then Executive shall forfeit any and all rights in and to the Stock
Bonus.
3.6.5 Fractional
and Restricted Shares; Acquisition Agreement
(i) Fractional
Shares.
If the
calculation of the number of shares of Company common stock to be received
as
the Stock Bonus pursuant to this Section
3.6
would
result in the issuance of fractional shares, then the number of shares of
Company common stock that Executive would otherwise receive as the Stock Bonus
shall be rounded down to the nearest whole number of shares (which shall be
the
Stock Bonus payable to Executive and Executive shall receive as cash the amount
attributable to the fractional interest.
(ii) Restricted
Shares.
The
shares of Company common stock to be issued pursuant to this Agreement as Stock
Bonus (A) have not been, and will not be at the time of issuance, registered
under the Securities Act, and will be issued in a transaction that is exempt
from the registration requirements of the Securities Act and (B) will be
“restricted securities” under the federal securities laws and cannot be offered
or resold except pursuant to registration under the Securities Act or an
available exemption from registration. All certificates evidencing the Stock
Bonus shall bear, in addition to any other legends required under applicable
securities laws, the following legend:
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“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM REGISTRATION.”
(iii) Stock
Acquisition Agreement.
In
connection with and as a precondition to receipt of any Stock Bonus, Employee
shall execute and deliver to Company a Stock Acquisition Agreement substantially
in the form of Exhibit
B
attached
hereto and incorporated herein and all such other documentation as may
reasonably be required by Company.
4. SUPPORT
AND EXPENSES
4.1. Office.
During
the Employment Period the Company shall provide Executive with furnished
offices in the Company’s headquarters (which shall be consistent with the
Executive’s duties and sufficient for the efficient performance of those duties,
all in the reasonable determination of the Board).
4.2. Expenses.
During
the Employment Period, including following any Date of Termination for
appropriate expenses incurred on or prior to the Date of Termination, the
Company shall reimburse the Executive promptly or otherwise provide for or
pay
for all pre-approved reasonable expenses incurred by the Executive in
furtherance of, or in connection with, the business of the Company or its
Subsidiaries, consistent with the Company’s policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject
to
such reasonable documentation and other limitations as may be established from
time to time by the Board, including against presentation of vouchers or
receipts therefor.
5. TERMINATION
5.1. Termination
Due to Death or Disability, For Cause or By the Executive.
If the
Employment Period is terminated (a) by reason of the Executive’s death or
Disability; (b) by the Company for Cause; or (c) by the Executive (other than
for a Good Reason); then
the
Executive shall only be entitled to receive the Executive’s Base Salary and the
reimbursement of any applicable expenses pursuant to Section
4.2
through
the Date of Termination, and the Executive shall have no right to any other
compensation thereafter (including without limitation pursuant to Section
3.1
and
3.2
of this
Agreement, but not including Section
5.3).
No
Person shall be entitled hereunder to participate in any employee benefit plan
after the Date of Termination if the Employment Period is terminated in
connection with this Section
5.1,
except
as otherwise expressly required by applicable law (i.e., COBRA) and provided
that
nothing herein shall be interpreted to limit the Executive’s conversion rights,
if any, under any of the Company’s employee benefit plans.
-
10
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5.2. Termination
by the Company Other Than for Death, Disability, or Cause or by the Executive
for a Good Reason.
In
addition to the payment to the Executive of the Executive's Base Salary and
the
reimbursement of any applicable expenses pursuant to Section
4.2
through
the Date of Termination, if (a) the Employment Period is terminated (i) by
the
Company for reasons other than death, Disability, or Cause, or (ii) by the
Executive for a Good Reason, or (iii) in accordance with the terms of
Section
2.1(b)
hereof
(provided the Company provides the requisite notice to the Executive to
terminate prior to any Expiration Date); and (b) the Executive executes a
general release in the form attached hereto as Exhibit
C (the
"Release")
on or
before the effective Date of Termination; and (c) the Executive has not breached
the terms of the “Assignment Agreement” (as defined below); then
the
Company shall pay the Executive an amount equal to the Executive’s Base Salary
(at the rate in effect at the Date of Termination) for a period commencing
on
the Date of Termination and on the Expiration Date; provided,
however,
that if
the Termination Date is within twelve (12) months of the Expiration Date, then
the Company shall pay the Executive an amount equal to the Executive’s Base
Salary (at the rate effective as of the Termination Date), for a period
commencing on the Termination Date and ending on the first (1st)
anniversary of the Termination Date. Any payment under this Section
5.2
shall be
made over time as though the Executive continued to be employed by the Company.
If the Executive elects and remains eligible for health coverage pursuant to
Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA")
(and
subject to withholding pursuant to Section
3.5
above);
then
commencing within
fifteen (15) business days following the date on which the Release becomes
effective pursuant to its terms, the Company will, for a period commencing
on
the Date of Termination and ending twelve (12) months from the Date of
Termination, pay a percentage of the premium for such COBRA health coverage
equal to the percentage of the premium for health insurance coverage paid by
the
Company on the Date of Termination. The Executive shall not be entitled to
any
other salary or compensation after termination of the Employment Period (other
than as set forth in this Section
5.2
and
Section
5.3)
and no
Person shall be entitled hereunder to participate in any employee benefit plan
after the Date of Termination if the Employment Period is terminated in
connection with this Section
5.2,
except
as otherwise specifically provided hereunder or as required by applicable law
(i.e., COBRA) and provided
that
nothing herein shall be interpreted to limit the Executive’s conversion rights,
if any, under any of the Company’s employee benefit plans. In furtherance of and
not in limitation of the foregoing, the Executive may only be terminated by
the
affirmative vote of a majority of the whole Board (excluding the Executive
if he
is a member of the Board).
5.3. Cooperation
with Company After Termination of Employment. For
a
period of six (6) months following termination of the Employment Period for
any
reason, as such period may be extended with the consent of the Executive, the
Executive shall fully cooperate with the Company in all matters relating to
the
winding up of pending work on behalf of the Company including, but not limited
to, any litigation in which the Company is involved, and the orderly transfer
of
any such pending work to other executives of the Company as may be designated
by
the Company. The Executive shall be compensated for any time spent pursuant
to
this Section
5.3
at the
specific request of the Company at a per diem
amount
based upon the Executive's Base Salary at the Date of Termination.
5.4. Termination
by Mutual Consent.
Notwithstanding any of the foregoing provisions of this Section
5,
if at
any time during the course of this Agreement the parties by mutual consent
decide to terminate it, they shall do so by separate agreement setting forth
the
terms and conditions of such termination.
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11
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6. INVENTION,
ASSIGNMENT, NON-COMPETE AND CONFIDENTIALITY
AGREEMENT
6.1. The
parties hereto have entered into an Invention, Assignment, and Confidentiality
Agreement attached hereto as Exhibit
D
(the
"Assignment
Agreement"),
which
may be amended by the parties from time to time pursuant to the terms thereof.
The provisions of the Assignment Agreement are intended by the parties to
survive and shall survive termination or expiration of the Employment Period
and
this Agreement.
| 7. |
NON-SOLICITATION
CUSTOMERS OR EMPLOYEES;
NON-COMPETITION
|
7.1. Covenant
Not-to-Solicit Customers. Subject
to Section
7.4
below,
during Executive's employment with the Company through the applicable
Restrictive Period, the Executive shall not directly or indirectly, individually
or on behalf of any other person or entity, whether as principal, agent,
stockholder, employee, consultant, representative or in any other capacity,
solicit any person or entity, that:
(a) is
a
customer or client of the Company or any of its subsidiaries as of the
Termination Date; or
(b) has
been
a customer or client of the Company or any of its subsidiaries at any time
within two (2) years prior to the Termination Date; or
(c) is
a
prospective customer or client that the Company or any of its subsidiaries
is
actively soliciting as of the Termination Date.
7.2. Covenant
Not-to-Solicit Employees.
Subject
to Section
7.4
below,
during Executive's employment with the Company and from the Termination Date
through the applicable Restrictive Period, the Executive shall not directly
or
indirectly, individually or on behalf of any other person or entity, whether
as
principal, agent, stockholder, employee, consultant, representative or in any
other capacity:
(a) recruit,
solicit or encourage any person to leave the employ of the Company or any of
its
subsidiaries; or
(b) hire
any
employee of the Company or any of its subsidiaries as a regular employee,
consultant, independent contractor or otherwise.
7.3. Non-Competition.
The
Executive recognizes and acknowledges the competitive and proprietary nature
of
the business operations of the Company and its subsidiaries. Subject to
Section
7.4
below,
during the Executive’s employment with the Company and for the applicable
Restrictive Period, the Executive shall not, without the prior written consent
of the Company, for himself or on behalf of any other person or entity, directly
or indirectly, whether as principal, agent, stockholder, employee, consultant,
representative or in any other capacity, own, manage, operate or control, or be
concerned, connected or employed by, or otherwise associate in any manner with,
engage in or have a financial interest in any business that competes with the
business operations of the Company or any of its subsidiaries, except that
nothing contained herein shall preclude the Executive from purchasing or owning
stock in any such competitive business if such stock is publicly traded, and
provided that his holdings do not exceed one percent (1%) of the issued and
outstanding capital stock of such business.
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12
-
7.4. Reduction
and Extension of Restrictions.
(a) If
the
Termination Date with respect to the Executive’s termination occurs on or before
the third (3rd)
anniversary of the Closing Date, then the provisions of Sections
7.1, 7.2 and 7.3
above
apply to Executive regardless of the reason for the termination. If the
Termination Date with respect to the Executive’s termination occurs after the
third anniversary of the Closing Date, then the provisions of Sections
7.1, 7.2 and 7.3
above
apply only to terminations made pursuant to Section
5.1
and
shall not apply with respect to terminations made pursuant to Section
5.2.
(b) The
Company at Company’s option, by written notice delivered to Executive not less
than thirty (30) days prior to the expiration of the then current, applicable
Restrictive Period, may extend the Restrictive Period (as previously extended
under this Section 7.4(b)) for an additional twelve (12) months, provided that
Company pays to Executive during the extended Restrictive Period an amount
equal
to the Executive’s Base Salary (at the rate effective as of the applicable
Termination Date and over time and in the manner Executive would have received
these payments had he continued to be employed by the Company).
7.5. Non-Disparagement.
The
Executive agrees not to make any public statement, or engage in any conduct,
that is disparaging to the Company, or any of its employees, officers, directors
or shareholders, including, but not limited to, any statement that disparages
the products, services, finances, financial condition, capabilities or other
aspects of the business of the Company. Notwithstanding any term to the contrary
herein, the Executive shall not be in breach of this Section
7
for the
making of any truthful statements under oath.
7.6. Reasonableness
of Restrictions.
The
Executive has carefully read and considered the provisions of this Section
7,
and,
having done so, agrees (a) that the restrictions set forth herein are
reasonable, in terms of scope, duration, geographic area, and otherwise, (b)
that the protection afforded to the Company hereunder is necessary to protect
its legitimate business interests, (c) that the agreement to observe such
restrictions form a material part of the consideration for this Agreement and
the Executive's employment by the Company and (d) that upon the termination
of
the Executive’s employment with the Company for any reason, he will be able to
earn a livelihood without violating the foregoing restrictions. In the event
that, notwithstanding the foregoing, any of the provisions of this Section
7
shall be
held to be invalid or unenforceable, the remaining provisions thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. In the event that any
provision of this Section relating to the time period and/or the areas of
restriction and/or related aspects shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or areas of restriction and/or related
aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such
court.
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13
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8. EXECUTIVE’S
REPRESENTATIONS AND WARRANTIES
8.1. Other
Agreements.
The
Executive hereby represents and warrants to the Company that the Executive
is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other Person.
8.2. Enforceability.
The
Executive hereby represents and warrants to the Company that upon the execution
and delivery of this Agreement by the Company, this Agreement shall be the
valid
and binding obligation of the Executive, enforceable in accordance with its
terms.
8.3. No
Breach; No Conflict of Interest.
The
Executive hereby represents and warrants to the Company that (a) the execution,
delivery and performance of this Agreement by the Executive do not and shall
not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Executive is a party or
by
which the Executive is bound and (b) the Executive is not, to the best of the
Executive's knowledge and belief, involved in any situation that might create,
or appear to create, a conflict of interest with loyalty to or duties for the
Company.
8.4. Notification
of Materials or Documents from Other Employers.
The
Executive hereby represents and warrants to the Company that the Executive
has
not brought and will not bring to the Company or use in the performance of
responsibilities at the Company any materials or documents of a former employer
or client that are not generally available to the public, unless the Executive
has obtained express written authorization from the former employer or client
and the Company for their possession and use.
8.5. Notification
of Other Post-Employment Obligations.
The
Executive also understands that, as part of the Executive's employment with
the
Company, the Executive is not to breach any obligation of confidentiality that
the Executive has to former employers or
clients,
and agrees to honor all such obligations to former employers or clients during
employment with the Company.
8.6. Consultation
with Counsel.
The
Executive hereby acknowledges and represents that the Executive has consulted
with independent legal counsel regarding the Executive’s rights and obligations
under this Agreement and that the Executive fully understands the terms and
conditions contained herein.
9. ARBITRATION
9.1. The
Executive and the Company mutually consent to the resolution by arbitration
of
certain claims or controversies (collectively, "Claims")
arising out of or relating to the Executive's employment or termination of
employment under this Agreement that either party may have against the other,
including the Company’s officers, shareholders, directors, employees, or benefit
plans, the benefit plans' sponsors, fiduciaries, administrators, or affiliates;
and all successors and assigns of any of them, or agents in their capacity
as
such or otherwise. The Claims covered by this Agreement shall include claims
for
(a) wages or other compensation due; (b) breach of any contract or covenant
(express or implied); tort claims; (c) discrimination (including but not limited
to race, sex, religion, national origin, age, disability, citizenship, marital
status, or any other basis protected by any applicable federal, state or local
law); (d) payment of wages; (e) benefits (except where an employee benefit
or
pension plan specifies that its claims procedure shall use an arbitration
procedure different from this one); and (f) violation of any federal, state,
or
local law, statute, regulation, or ordinance, or recognized under common law.
The Claims not covered by this Agreement shall include claims (g) for workers'
compensation or unemployment compensation benefits; (h) brought pursuant to
Sections
6 or 10
of this Agreement and breach of duty of loyalty; and (i) unrelated to the
Employee's employment with the Company.
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14
-
9.2. The
arbitration shall be governed by the procedures of the American Arbitration
Association ("AAA"),
in
accordance with its then-current Model Employment Arbitration Procedures and
shall take place in the Washington-Metropolitan area.
9.3. If
the
parties to this Agreement become parties to an arbitration proceeding or
litigation arising from or relating to this Agreement, the non-prevailing party
shall pay the reasonable attorneys’ fees and costs incurred by the prevailing
party in such arbitration or litigation.
10. GENERAL
PROVISIONS
10.1. Assignment. The
Company may assign this Agreement and its rights and obligations hereunder
in
whole, but not in part, to any Company or other entity with or into which the
Company or may hereafter merge or consolidate or to which the Company may
transfer all or substantially all of its assets, if in any such case said
company or other entity shall by operation of law or expressly in writing assume
all obligations of the Company hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement or its rights
and obligations hereunder. The Executive may not assign or transfer this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company. Notwithstanding such assignment, the Company shall
remain a guarantor of the performance of all obligations owed by the Company
to
the Executive under this Agreement.
10.2. Notice.
For the
purposes of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, or Federal Express, signature required, if to the
Company, addressed to its corporate headquarters at the time notice is given,
"Attention Board of Directors"; if to the Executive, addressed to his home
address as listed in the Company’s records at the time notice is
given.
10.3. Amendment
and Waiver.
No
provision of this Agreement may be amended or waived unless such amendment
or
waiver is in writing and signed by each of the parties hereto.
-
15
-
10.4. Non-Waiver
of Breach.
No
failure by either party to declare a default due to any breach of any obligation
under this Agreement by the other, nor failure by either party to act quickly
with regard thereto, shall be considered to be a waiver of any such obligation,
or of any future breach.
10.5. Severability.
In the
event that any provision or portion of this Agreement shall be determined to
be
invalid or unenforceable for any reason, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and
effect.
10.6. Governing
Law.
To the
extent not preempted by Federal law, the validity and effect of this Agreement
and the rights and obligations of the parties hereto shall be construed and
determined in accordance with the law of the State of Maryland, without giving
effect to any choice of law or conflict of law rules or provisions (whether
of
the State of Maryland or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Maryland.
10.7. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter, whether oral
or
written, including without limitation any prior or existing employment agreement
with the Company which shall be null and void and of no further force or effect.
10.8. Binding
Effect.
This
Agreement shall be binding upon and shall inure to the benefit of the
transferees, successors and assigns of the Company, including without limitation
any company with which the Company may merge or consolidate.
10.9. Headings.
Numbers
and titles to Sections hereof are for information purposes only and, where
inconsistent with the text, are to be disregarded.
10.10. Survival.
Section
1
and
Sections
5
through
10
shall
survive and continue in full force in accordance with their terms
notwithstanding the expiration or termination of the Employment
Period.
10.11. No
Strict Construction.
The
language used in this Agreement shall be deemed to be the language chosen by
the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
10.12. Counterparts.
This
Agreement may be executed in separate counterparts (including by means of
facsimile), each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
10.13. Indemnification
of the Executive. The
Company shall, to the extent permitted by the Bylaws of the Company, in a manner
as applied to other officers of the Company, indemnify, protect and hold the
Executive harmless from and against any expenses, including reasonable
attorneys' fees and expenses, claims, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding
arising out of, or related to, the Executive's employment by the Company or
any
of its Subsidiaries. The Company shall cause the Executive to be covered under
directors and officers liability insurance policies in reasonable amounts in
accordance with the Company's standard corporate policies.
-
16
-
10.14. Injunctive
Relief.
The
Executive represents and acknowledges that, in light of the payments to be
made
by the Company to the Executive hereunder and for other good and valid reasons,
as a result of the restrictions stated in the Assignment Agreement and the
restrictions in Section
7
hereof,
the Company and its affiliated companies would sustain irreparable harm and,
therefore, in addition to any other remedies which the Company may have under
this Agreement or otherwise, the Company shall be entitled to apply to any
court
of competent jurisdiction for an injunction restraining the Executive from
committing or continuing any such violation of this Agreement, and the Executive
shall not object to such application.
[SIGNATURES
ON FOLLOWING PAGES]
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17
-
IN
WITNESS WHEREOF,
the
parties hereto have caused this Executive Employment Agreement to be duly
executed on the date and year first written above.
| THE COMPANY: | ||
|
By:/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
Xxxxxx X. Xxxxx
|
||
|
Title:
Chairman
|
||
| THE EXECUTIVE: | ||
|
By:/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxxx X.
Xxxxxxxxx
|
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18
-
EXHIBIT
A
EXISTING
LIFE INSURANCE
EXHIBIT
B
STOCK
ACQUISITION
AGREEMENT
[Name
of Purchaser]
THIS
STOCK ACQUISITION AGREEMENT (“Agreement”)
is
made this ___ day of __________, 2006 by and between FORTRESS INTERNATIONAL
GROUP, INC., formerly Fortress America Acquisition Corporation, a Delaware
corporation (“FIG”),
and
________________________, an individual (the “Purchaser”).
RECITALS:
R-1. Pursuant
to the terms of that certain Executive Employment Agreement dated the June
5,
_____ day of ________, 2006 (the “Employment
Agreement”),
by
and among (i) FIG and (ii) Purchaser, FIG employed
Purchaser.
R-2. Pursuant
to the terms of the Employment Agreement, Purchaser has earned as a bonus
_________ shares of FIG common stock (collectively the “FIG
Shares”).
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained and for other good and valuable consideration,
the
receipt and adequacy of which are hereby acknowledged, the undersigned agree
as
follows:
| 1. |
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth
below:
“Agreement”
has
the
meaning referred to in the Preamble.
“Employment
Agreement”
has
the
meaning referred to in Recital R-1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended and the rules and regulations
promulgated thereunder.
“FIG”
refers
to Fortress International Group, Inc.
“FIG
Securities”
has
the
meaning referred to in Section 3.6.
“FIG
Shares”
has
the
meaning referred to in Recital R-2.
“Governmental
Authority”
means
any nation or government, any foreign or domestic Federal, state, county,
municipal or other political instrumentality or subdivision thereof and any
foreign or domestic entity or body exercising executive, legislative, judicial,
regulatory, administrative or taxing functions of or pertaining to
government.
“Laws”
means
(a) all constitutions, treaties, laws, statutes, codes, regulations, ordinances,
orders, decrees, rules, or other requirements with similar effect of any
Governmental Authority, (b) all judgments, orders, writs, injunctions,
decisions, rulings, decrees and awards of any Governmental Authority, and (c)
all provisions of the foregoing, in each case binding on or affecting the Person
referred to in the context in which such word is used; “Law” means any one of
such “Laws”.
-
1 -
“Lien”
means
any lien, statutory or otherwise, security interest, mortgage, deed of trust,
priority, pledge, charge, conditional sale, title retention agreement, financing
lease or other encumbrance or similar right of others, or any agreement to
give
any of the foregoing.
“Person”
means
any individual, person, entity, or Governmental Authority and the heirs,
executors, administrators, legal representatives, successors, and assigns of
the
“Person” when the contest so permits.
“Purchaser”
means_________________.
“Public
Disclosure Documents”
has
the
meaning referred to in Section 3.7.
“Registration
Rights Agreement”
has
the
meaning referred to in Section 2.2.
“SEC”
means
the United States Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Tax”
means
any Federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, ad valorem, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, custom, tariff, impost, levy, duty or other like
assessment or charge.
“Taxing
Authority”
means
any government or any subdivision, agency, commission or authority thereof,
or
any quasi-governmental or private body having jurisdiction over the assessment,
determination, collection or other imposition of Taxes.
| 2. |
Agreement
to Sell and Purchase.
|
2.1 Sale
and Purchase.
Subject
to the terms and conditions of this Agreement and the Membership Purchase
Agreement, FIG hereby issues and sells to Purchaser, and Purchaser hereby
purchases from FIG, the FIG Shares.
| 2.2 |
Closing
Deliveries and Payment.
|
(a) Upon
the
execution of this Agreement, FIG will deliver to the Purchaser stock
certificates representing the FIG Shares.
(b) Simultaneously
with the execution of this Agreement, the Registration Rights Agreement attached
hereto as Exhibit
A
(the
“Registration
Rights Agreement”)
shall
be executed by the parties thereto.
-
2 -
| 3. |
Representations
and Warranties of FIG.
|
| 3.1 |
Organization
and Power.
|
FIG
is a
corporation duly organized, validly existing and in good standing under the
laws
of Delaware and has full corporate power and authority (a) to execute and
deliver this Agreement and the Registration Rights Agreement and (b) issue
the
FIG Shares.
| 3.2 |
Authorization
and Enforceability.
|
All
corporate action on the part of FIG, its officers, directors and stockholders
necessary for (a) the authorization, execution and delivery of this Agreement
and the Registration Rights Agreement, (b) the performance of all obligations
of
FIG hereunder and thereunder, and (c) the authorization, sale, issuance and
delivery of the FIG Shares pursuant hereto has been taken, as applicable. This
Agreement and the Registration Rights Agreement when executed and delivered,
will be valid and binding obligations of FIG, enforceable against FIG in
accordance with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles.
-
3 -
| 3.3 |
No
Violation.
|
Neither
(i) the execution, delivery or performance of this Agreement and the
Registration Rights Agreement, nor (ii) the issuance of the FIG Shares
will:
(a) conflict
with or violate any provision of the certificate of incorporation, any bylaw
or
any corporate charter or document of FIG;
(b) result
in
the creation of, or require the creation of, any Lien upon any (i) shares of
stock of FIG or (ii) property of FIG;
(c) result
in
(i) the termination, cancellation, modification, amendment, violation, or
renegotiation of any contract, agreement, indenture, instrument, or commitment
pertaining to the business of FIG, or (ii) the acceleration or forfeiture of
any
term of payment;
(d) give
any
Person the right to (i) terminate, cancel, modify, amend, vary, or renegotiate
any contract, agreement, indenture, instrument, or commitment pertaining to
the
business of FIG, or (ii) to accelerate or forfeit any term of payment;
or
(e) violate
any Laws applicable to FIG or by which its properties are bound or
affected.
| 3.4 |
Consents.
|
Neither
(a) the execution, delivery or performance of this Agreement or the Registration
Rights Agreement, nor (b) the issuance of the FIG Shares will require (i) the
consent or approval under any agreement or instrument or (ii) FIG to obtain
the
approval or consent of, or make any declaration, filing (other than
administrative filings with Taxing Authorities, foreign companies registries
and
the like) or registration with, any Governmental Authority.
| 3.5 |
Authorization
of Stock Consideration.
|
When
issued, the FIG Shares will be (a) duly authorized, validly issued, fully paid
and nonassessable, (b) not subject to preemptive rights created by statute,
FIG’s certificate of incorporation or bylaws or any agreement to which FIG is a
party or by which FIG is bound and (c) free of restrictions on transfer or
Liens, other than restrictions on transfer under applicable state and federal
securities laws or restrictions or Liens imposed thereon by the
Purchaser.
| 3.6 |
Public
Disclosure Documents.
|
(a) FIG
has
filed with, or furnished to, the SEC each form, proxy statement or report
required to be filed with, or furnished to, the SEC by FIG pursuant to the
Exchange Act (collectively, with FIG’s prospectus filed with the SEC on July 13,
2005, as amended to date, the “Public
Disclosure Documents”).
The
Public Disclosure Documents, as amended, complied, as of the date of their
filing with the SEC, as to form in all material respects with the requirements
of the Exchange Act and Securities Act, as applicable. The information contained
or incorporated by reference in the Public Disclosure Documents was true,
complete and correct in all material respects as of the respective dates of
the
filing thereof with the SEC, and, as of such respective dates, the Public
Disclosure Documents did not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances under which they were
made, not misleading, except to the extent updated or superseded by any Public
Disclosure Document subsequently filed by FIG with the SEC prior to the date
hereof.
-
4 -
(b) The
financial statements of FIG included in the Public Disclosure Documents have
been prepared in accordance with the published rules and regulations of the
SEC
and in conformity with GAAP applied on a consistent basis throughout the periods
indicated therein, except as may be indicated therein or in the notes thereto,
and presented fairly, in all material respects, the financial position of FIG
as
of the dates indicated, and the results of the operations and cash flows of
FIG
for the periods therein specified (except in the case of quarterly financial
statements for the absence of footnote disclosure and subject, in the case
of
interim periods, to normal year-end adjustments).
4. Representations
and Warranties of Purchaser.
Purchaser hereby represents and warrants to FIG that:
| 4.1 |
Authorization
and Enforceability.
|
Purchaser
has all necessary power and authority under all applicable provisions of Laws
to
execute and deliver this Agreement and the Registration Rights Agreement and
to
carry out his obligations hereunder and thereunder. All actions on the part
of
the Purchaser required for the lawful execution and delivery of this Agreement
and the Registration Rights Agreement have been or will be effectively taken
prior to the date hereof, as applicable. Upon their execution and delivery,
this
Agreement and the Registration Rights Agreement, will be valid and binding
obligations of Purchaser, enforceable in accordance with their terms, subject
to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.
| 4.2 |
Purchase
Entirely For Own Account.
|
The
Purchaser is acquiring the FIG Shares for his own account (not as a nominee
or
agent) and for investment and not with a view to the resale or distribution
of
any part thereof except as specifically permitted by Section 4.3 hereof.
| 4.3 |
Investment
Experience.
|
Purchaser
is an "accredited investor" as defined in Rule 501(a) under the Securities
Act.
Purchaser has acquired sufficient information about FIG to reach an informed
decision to purchase the FIG Shares. Purchaser has such business and financial
experience as are required to give it the capacity to protect its own interests
in connection with the purchase of the FIG Shares.
-
5 -
| 4.4 |
Access
To Information.
|
The
Purchaser has had an opportunity to ask questions of and receive answers from
FIG and its officers and directors concerning FIG and the terms and conditions
of the sale of the FIG Shares under the terms of this Agreement and has had
an
opportunity to obtain additional information from FIG to the extent deemed
necessary or advisable by the Purchaser in order to verify the accuracy of
the
information obtained. The Purchaser has, to the extent deemed necessary by
the
Purchaser, consulted with his or her own advisors (including the Purchaser’s
attorney, accountant or investment advisor) regarding the Purchaser’s investment
in the FIG Shares and understands the significance and effect of his
representations, warranties, acknowledgments and agreements set forth in this
Agreement.
| 4.5 |
Speculative
Investment.
|
The
Purchaser understands that his investment in the FIG Shares entails a high
degree of risk and that a total loss of the Purchaser’s investment in the FIG
Shares is possible. The Purchaser understands that his acquisition of the FIG
Shares will be a highly speculative investment.
| 4.6 |
Representations
and Warranties by FIG.
|
The
Purchaser acknowledges that neither FIG, nor any of its officers, directors,
representatives or affiliates, nor any other person or entity, has made any
representations or warranties, except as otherwise expressly set forth herein,
with respect to FIG, its or its affiliates’ businesses, or the FIG
Shares.
| 4.7 |
Restricted
Securities.
|
Purchaser
understands that (a) the FIG Shares are being offered in a transaction not
involving any public offering in the United States within the meaning of the
Securities Act, (b) the FIG Shares have not been registered under the Securities
Act (in reliance upon an exemption from the Registration Requirements of the
Securities Act pursuant to Section 4(2) thereof), (c) the FIG Shares have not
been registered under applicable state securities laws, and (d) Purchaser may
not resell, pledge or otherwise transfer any such FIG Shares unless registered
under the Securities Act and applicable state securities laws (FIG being under
no obligation to so do, except as provided in the Registration Rights
Agreement).
| 4.8 |
Legends.
|
Purchaser
understands that the FIG Shares, and any securities issued in respect thereof
or
exchanged therefor, may bear the following legend until such time, if any,
as
(a) the FIG Shares or such securities (i) are sold in compliance with Rule
144
under the Securities Act (or a comparable successor provision) or pursuant
to an
effective registration statement under the Securities Act or (ii) pursuant
to
Rule 144(k) under the Securities Act (or a comparable successor provision),
or
(b) FIG receives an opinion of counsel reasonably acceptable to it to the effect
that such legend may be removed:
“THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN
EXEMPTION PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.”
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| 5. |
Miscellaneous.
|
| 5.1 |
Notices.
|
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered to the parties
at the addresses set forth below, as same may be modified from time to time.
Each such notice, request or other communication shall be effective (a) if
given
by facsimile, when such facsimile is transmitted to the facsimile number set
forth below if such facsimile is transmitted on a business day, and if not,
then
on the next business day thereafter, (b) if given by mail, five (5) days after
mailed by registered or certified mail (return receipt requested) or (c) if
given by express courier, on the day delivered by an express courier (with
confirmation from recipient) to the following addresses:
(a) if
to
FIG, to:
Fortress
International Group, Inc.
Attn:
Xxxxxx X. Xxxxx
Chairman
of the Board
0000
Xxxxx Xxxxxxx Xxxxx, #0000
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile
No.:
(b) if
to
Purchaser, to:
Xxxxxx
X.
Xxxxxxxxx
0
Xxxxxxx
Xxxx
Xxxxxxx
Xxxx, XX 00000
Facsimile
No.: _______________
Notice
of
any change in any address or facsimile number shall also be given in the manner
set forth above. Whenever the giving of notice is required, the giving of such
notice may be waived by the party entitled to receive such notice.
| 5.2 |
Entire
Agreement.
|
This
Agreement, the Membership Purchase Agreement and the Registration Rights
Agreement contain the entire agreement between the parties hereto with respect
to the matters contemplated herein and supersede all prior agreements or
understandings among the parties related to such matters.
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| 5.3 |
Assignment
and Binding Effect.
|
Except
as
otherwise expressly provided herein, the rights and obligations hereunder may
not be assigned or delegated by the Purchaser or FIG without the prior written
consent of the other; provided,
however,
that
Purchaser may assign its rights and delegate its obligations hereunder, in
whole
or in part; provided,
further,
that
any such assignee that acquires any FIG Shares shall, as a condition to
acquiring the FIG Shares, agree to be bound by the provisions of any agreement
applicable to the FIG Shares, including, but not limited to, the Registration
Rights Agreement. The provisions hereof shall inure to the benefit of, and
be
binding upon, the successors and assigns of the parties hereto.
| 5.4 |
Amendment
and Modification.
|
This
Agreement may be amended, modified, superseded, canceled, renewed or extended,
and the terms or covenants hereof may be waived, only by a written instrument
executed by all of the parties hereto or, in the case of a waiver, by the party
waiving compliance. Except as otherwise specifically provided in this Agreement,
no waiver by either party hereto of any breach by the other party hereto of
any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition
at
the same or at any prior or subsequent time.
| 5.5 |
Governing
Law.
|
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the laws of the State of Maryland, without
giving effect to the principles of conflicts of laws thereof.
| 5.6 |
Headings.
|
Headings
to the sections in this Agreement are intended solely for convenience, and
no
provision of this Agreement is to be construed by reference to the heading
of
any section.
| 5.7 |
Counterparts.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
agreement.
| 5.8 |
Fees
and Expenses.
|
Each
party hereto shall pay the fees and expenses incurred by it in connection with
the transactions contemplated herein. Without limiting the generality of the
foregoing, Purchaser hereby agrees that FIG shall not be responsible for any
expenses, taxes or other costs incurred by Purchaser in consummating the
transactions contemplated herein, including legal and other professional fees
and costs, income taxes, and sales or use taxes and that Purchaser shall be
solely responsible for the payment of all such expenses, taxes and
costs.
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8 -
| 5.9 |
Severability.
|
Any
term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms and provisions of this Agreement in any
other jurisdiction.
| 5.10 |
Further
Actions.
|
The
parties hereto agree to execute such further instruments and to take such
further actions as may reasonably be necessary to carry out the intent of this
Agreement.
| 5.11 |
Brokers.
|
Each
party hereto represents and warrants that, except as provided in the Membership
Purchase Agreement, no agent, broker, investment banker, person or firm acting
on behalf of or under the authority of such party hereto is or will be entitled
to any broker's or finder's fee or any other commission directly or indirectly
in connection with the transactions contemplated herein. Each party hereto
further agrees to indemnify each other party for any claims, losses or expenses
incurred by such other party as a result of the representation in this Section
being untrue
IN
WITNESS WHEREOF, the parties hereto have executed this Stock Acquisition
Agreement as of the date first set forth above.
|
FIG:
|
||
|
FORTRESS
INTERNATIONAL GROUP, INC.,
|
||
| a Delaware corporation | ||
|
By:__________________________
|
||
| Name:______________________ | ||
| Title:_______________________ | ||
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9 -
PURCHASER:
| ______________________ | ||
| Name:____________________ |
-
10 -
EXHIBIT
A
REGISTRATION
RIGHTS AGREEMENT
-
11 -
EXHIBIT
B
SEPARATION
FROM EMPLOYMENT AGREEMENT AND RELEASE
1. This
agreement is between the Executive, Xxxxxx X. Xxxxxxxxx, the Executive’s spouse,
family, agents and attorneys) (jointly, the "Executive") and Fortress
International Group, Inc. (the "Company"), its subsidiaries, affiliated
entities, direct or indirect owners and its and their respective officers,
directors, employees, agents, predecessors, successors, purchasers, assigns,
representatives, fiduciaries, and insurers (jointly, the "Released
Parties").
2. If
the
Executive signs this agreement and does not revoke it, the Executive will
receive the applicable severance payments and benefits set forth in Section
5
of the
Executive’s Executive Employment Agreement, dated __________ _____, 2006 (the
"Employment Agreement").
3. The
Executive, deeming this Agreement to be fair, reasonable, and equitable, and
intending to be legally bound hereby, agrees to and hereby does, forever and
irrevocably fully release and discharge the Released Parties from any and all
grievances, liens, suits, judgments, claims, demands, debts, defenses, actions
or causes of action, obligations, damages (whether compensatory, punitive or
otherwise), and liabilities whatsoever which the Executive now has, has had,
or
may have, whether the same be known or unknown, vested or contingent, at law,
in
equity, or mixed, in any way arising out of or relating in any way to any
matter, act, occurrence, or transaction before the date of this General Release
Agreement, including but not limited to his employment with Company, the
Executive's separation from Company and the Executive's employment agreement
with the Company (collectively, "Claims"). This
is a General Release.
The
Executive expressly acknowledges that this General Release includes, but is
not
limited to, the Executive's release of any tort and contract claims, arbitration
claims, claims under any local, state or federal wage and hour law, wage
collection law or labor relations law, and claims of age, race, sex, religion,
disability, national origin, ancestry, citizenship, retaliation or any other
claim of employment discrimination, under the Civil Rights Acts of 1964 and
1991
as amended (42 U.S.C. §§ 2000e et seq.),
the
Age Discrimination In Employment Act (29 U.S.C. §§ 621 et
seq.),
the
Americans With Disabilities Act (42 U.S.C. §§ 12101 et seq.),
the
Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.),
the
Family and Medical Leave Act (29 U.S.C. §§ 2601 et seq.),
the
Fair Labor Standards Act (29 U.S.C. §§ 201 et seq.),
and
any other law prohibiting employment discrimination or relating to employment.
Also, the Executive understands that this General Release Agreement is not
an
admission of liability under any statute or otherwise by the Released Parties,
and that the Released Parties do not admit but deny any violation of his legal
rights, and that he shall not be regarded as a prevailing party for any purpose,
including but not limited to, determining responsibility for or entitlement
to
attorneys’ fees, under any statute or otherwise. The Executive agrees that in
the event the Executive brings a Claim in which the Executive seeks damages
or
other relief from any Released Party, or in the event the Executive seeks to
recover against any Released Party in any Claim brought by a governmental agency
on the Executive’s behalf, this Agreement shall serve as a complete defense to
such Claims.
-
1
-
4. The
claims and causes of action the Executive is releasing and waiving include,
but
are not limited to, any and all claims and causes of action that any Released
Party:
· has
violated its personnel policies, handbooks, contracts of employment, or
covenants of good faith and fair dealing between the Executive and the
Company;
· has
discriminated against the Executive on the basis of age, race, color, sex
(including sexual harassment), national origin, ancestry, disability, religion,
sexual orientation, marital status, parental status, source of income,
entitlement to benefits, any union activities or other protected category in
violation of any local, state or federal law, constitution, ordinance, or
regulation, including but not limited to: the Age Discrimination in Employment
Act, as amended; Title VII of the Civil Rights Act of 1964, as amended; 42
U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With
Disabilities Act; the Family Medical Leave Act; the Employee Retirement Income
Security Act; Section 510; and the National Labor Relations Act.
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2
-
· has
violated any statute, public policy or common law (including but not limited
to
claims for retaliatory discharge; negligent hiring, retention or supervision;
defamation; intentional or negligent infliction of emotional distress and/or
mental anguish; intentional interference with contract; negligence; and/or
detrimental reliance).
5. Excluded
from this Agreement are any claims which cannot be waived by law. The Executive
is waiving, however, the Executive’s right to any monetary recovery should any
agency, such as the EEOC, pursue any claims on the Executive’s
behalf.
6. The
Executive also agrees that the Executive has been paid for all hours worked,
including any overtime bonus or other incentive compensation, has submitted
all
invoices and expense reports, and has not
suffered any on-the-job injury for which the Executive has not already filed
a
claim.
7. The
Executive agrees that every term of this Agreement, including, but not limited
to, the fact that an agreement has been reached and the amount paid, shall
be
treated by the Executive as strictly confidential, and expressly covenants
not
to display, publish, disseminate, or disclose the terms of this Agreement to
any
person or entity other than the Executive’s immediate family, the Executive’s
attorney(s) (for purposes of seeking advice concerning this agreement only)
and
the Employee’s accountant(s) (for purposes of seeking tax advice only), unless
compelled to make disclosure by lawful court order or subpoena.
8. The
Executive and the Company have entered into an Assignment of Invention,
Non-Disclosure, Non-Solicitation and Non-Competition Agreement ("NDA
Agreement"). The Executive reaffirms his obligation to comply with all of the
post termination obligations in the NDA Agreement.
-
3
-
9. The
Executive also agrees that:
· The
Executive is entering into this agreement knowingly and
voluntarily;
· The
Executive has been advised by the Company to consult an attorney;
· The
Executive has been given the right to take [21/45]
days
(the "Consideration Period") to consider this agreement; provided, however
the
Employee and the Company hereby agree that if there is a dispute as to the
payment of wages such that the Executive is unable to make the representation
set forth in Section
6
as to
payment for hours worked (including any overtime bonus or other incentive
compensation), the Consideration Period shall terminate on the later of the
natural expiration of the Consideration Period or the date that is one day
after
the resolution of all claims regarding wages;
· But
for
the Executive's execution of this agreement, the Executive would not otherwise
be entitled to the payments described in paragraph 2;
· if
any
part of this agreement is found to be illegal or invalid, the rest of the
agreement will be enforceable; and
· this
agreement has been individually negotiated between the Executive and the Company
and is not part of a group exit incentive or other group employment termination
program. The Executive and the Company agree that the sole reason for the
termination of the Executive’s employment is a business reorganization and
reduction in force of the Company’s [INSERT DEPARTMENT OR JOB CLASSIFICATION]
which is occurring on [INSERT DATE]. All individuals who are being terminated
in
the [INSERT DATE] reduction in force will be eligible for benefits based upon
their execution of a release identical to this release. The Executive
acknowledges by signing this Agreement that the Executive understands that
the
Executive is eligible for the benefits which the Executive will receive
contingent upon the Executive executing this release, because the Executive
was
part of this reduction in force. As is more fully set forth in Attachment B,
this reduction in force will affect [NUMBER AFFECTED] other executives on
[DATE].
10. After
the
Executive signs this agreement, the Executive will have 7 days to revoke it.
If
the Executive wants to revoke it, the Executive should deliver a written
revocation to __________ . If the Executive does not revoke it, the Executive
will receive the payment described in Paragraph 2.
-
4
-
| EMPLOYEE: | COMPANY: | |
| FORTRESS INTERNATIONAL GROUP, INC. | ||
| ____________________ | _______________________________ | |
| [NAME AND TITLE] | ||
| Date:____________________ | Date:_______________________________ | |
-
5
-
CONSIDERATION
PERIOD
I,
Xxxxxx
X. Xxxxxxxxx understand that I have the right to take at least [21/45]
days to
consider whether to sign this Separation From Employment and Release Agreement,
which I received on _________________, 2006. If I elect to sign this Agreement
before [21/45]
days
have passed, I understand I am to sign and date below this paragraph to confirm
that I knowingly and voluntarily agree to waive the [21/45]-day
consideration period.
| ____________________ | ||
| Executive Signature | ||
| ____________________ | ||
| Date |
ATTACHMENT
B
SCHEDULE
TO SEPARATION FROM EMPLOYMENT AGREEMENT AND RELEASE
On
[Date], the employment of the following individuals (identified by job title
and
age), who will the [sole] holders of their job title, will be terminated in
a
reduction in force:
|
Title
|
Age
|
The
employment of the following individuals (identified by age), who are the [sole]
holders of their job title, will not be terminated on [Date] in the reduction
in
force.
|
Title
|
Age
|
EXHIBIT
C
INVENTION
ASSIGNMENT, NON-COMPETE
AND
CONFIDENTIALITY AGREEMENT
The
following confirms an Invention Assignment, Non-Compete and Confidentiality
Agreement ("Agreement") between me and Fortress International Group, a Maryland
corporation (the "Company," which term includes the Company’s Affiliates,
subsidiaries and any assigns). The promises and commitments that I make in
this
Agreement are a material part of the Company’s consideration in my employment
relationship with the Company.
1.
I
understand and agree that my employment by the Company creates a duty of loyalty
and a relationship of confidence and trust between me and the Company with
respect to any information made known to me by the Company or by any client,
customer or vendor of the Company or other person who submits information to
the
Company, or which may be learned by me during the period of my
employment.
2.
I
recognize that the Company is continuously engaged in activities that the
Company regards as confidential, proprietary and/or legally protectable, which
activities are at least in part intended to further the interests of the Company
and to provide the Company with a competitive advantage. The Company possesses
and will, in the future, continue to possess information that has been or will
be created, discovered, developed or otherwise becomes known to the Company
(including information created by, discovered or developed by, or made known
to
me) during the period of or arising out of my employment by the Company. I
understand that various intellectual and other property rights have been
assigned or otherwise conveyed to the Company. All information concerning the
above described activities and information is collectively called "Proprietary
Information" under this Agreement.
3.
By
way of
illustration, but not limitation, Proprietary Information includes: trade
secrets, processes, formulas, data and know-how; software programs,
improvements, and inventions; research and development plans, tools and
techniques; new product introduction plans, specifications, requirements
documents and strategies; manufacturing techniques, strategies and costs,
expenses, supplier information and lists and distribution information; terms
and
conditions in contracts of all kinds; marketing plans, strategies and service;
support strategies and procedures; development schedules; revenue forecasts;
computer programs; copyrightable material, employee salaries, employee
expertise, employee ability levels, training programs and procedures, copies
of
memos or presentations incorporating confidential information which I may have
in my files (including those which I authored), patent applications and
disclosures and customer lists.
-
1
-
4.
In
consideration of my employment by the Company and the compensation received
by
me from the Company from time to time, I hereby agree as follows:
(a)
All
Proprietary Information shall be the sole property of the Company, and the
Company shall be the sole owner of all patents, copyrights, trademarks and
other
rights related to Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in Proprietary Information. At all times, both
during and after my employment by the Company, I will keep in confidence and
trust all Proprietary Information, and I will not use or disclose any
Proprietary Information or anything related to it without written consent of
the
Company, except as may be necessary in the ordinary course of performing my
duties to the Company.
(b)
All
documents, records, apparatus, equipment and other physical property, whether
or
not pertaining to Proprietary Information, furnished to me by the Company or
produced by myself or others in connection with employment by the Company shall
be and remain the sole property of the Company, shall be used by me solely
for
the benefit of the Company and shall be returned to the Company immediately
as
and when requested by the Company. Even if the Company does not so request,
I
shall return and deliver all such property to the Company upon termination
of my
employment by me or by the Company for any reason. I will not take with me
any
such property or any form of copy or reproduction of such property upon my
termination.
(c) I
will
promptly disclose to the Company, or any persons designated by it, all
improvements, inventions, formulas, ideas, processes, techniques, know-how
and
data, whether or not patentable, made or conceived or reduced to practice or
learned by me, either alone or jointly with others, during the period of my
employment (all said improvements, inventions, formulas, ideas, processes,
techniques, know-how and data shall be hereinafter collectively call
"Inventions").
(d)
I
agree
that all Inventions that I develop or have developed (in whole or in part,
either alone or jointly with others) and (i) use or have used equipment,
supplies, facilities or trade secret information of the Company, or (ii) use
or
have used the hours for which I am to be or was compensated by the Company,
or
(iii) which relate to the business of the Company or to its actual or
demonstrably anticipated research and development or (iv) which result, in
whole
or in part, from work performed by me for the Company shall be the sole property
of the Company and its assigns, and the Company and its assigns shall be the
sole owner of all patents, copyrights and other rights in connection therewith.
I hereby assign to the Company any rights I may have or acquire in such
Inventions. I further agree as to all such inventions and improvements to assist
the Company in every proper way (but at the Company’s expense) to obtain and
from time to time enforce patents, copyrights or other rights on said inventions
and improvements in any and all countries, and to that end I will execute all
documents in use for applying for and obtaining such patents and copyrights
thereon and enforcing same, as the Company may desire, together with any
assignments thereof to the Company or persons designated by it. My obligation
to
assist the Company in obtaining and enforcing patents, copyrights or other
rights for such inventions and improvements in any and all countries shall
continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after such termination for time actually
spent by me at the Company’s request on such assistance.
-
2
-
(e)
In
the
event that the Company is unable for any reason whatsoever to secure my
signature to any lawful and necessary document required to apply for or execute
any patent, copyright or other applications with respect to such inventions
and
improvements (including renewals, extensions, continuations, divisions or
continuations in part thereof), I hereby irrevocably designate and appoint
the
Company and its authorized officers and agents, as my agents and
attorneys-in-fact, this power of attorney being coupled with an interest, to
act
for and in my behalf and instead of me, to execute and file any such application
and to do all other lawfully permitted acts to further the prosecution and
issuance of patents, copyrights or other rights thereon with the same legal
force and effect as if executed by me.
(f)
As
a
matter of record, on Attachment
A,
I have
attached a complete list of all inventions or improvements relevant to the
subject matter of my employment by the Company which have been made or conceived
or first reduced to practice by me alone or jointly with others prior to my
employment with the Company that I desire to remove from the operation of this
Agreement, and I covenant that such list is complete. If no such list is signed
by me and attached to this Agreement, I represent and warrant that I have no
such inventions or improvements at the time of signing this Agreement, and
I
agree that I will make no claim against the Company with respect to any such
inventions or ideas.
(g) I
represent that my performance of all the terms of this Agreement will not breach
any agreement to keep in confidence proprietary information acquired by me
in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral
in
conflict with this Agreement.
(h) I
acknowledge that the Company from time to time may be involved in government
projects of a classified nature. I further acknowledge that the Company from
time to time may have agreements with other persons or governmental agencies
which impose obligations or restrictions on the Company regarding inventions
made during the course of work thereunder or regarding the confidential nature
of such work or information disclosed in connection therewith. I agree to be
bound by all such obligations and restrictions and to take all action necessary
to discharge the obligations of the Company thereunder.
-
3
-
(i)
I
represent and warrant that execution of this Agreement, my employment with
the
Company and my performance of my proposed duties to the Company in the
development of its business have not and will not violate any obligations which
I may have to any former employer.
|
(j)
|
I
agree that at no time during my employment by the Company or thereafter
shall I make, or cause or assist any other person to make, any statement
or other communication to any third party which impugns or attacks,
or is
otherwise critical of, the reputation, business or character of the
Company or any of its Affiliates or any of their respective directors,
officers or employees.
|
5.
This
Agreement shall be effective as of the first day of my employment by the
Company.
6.
This
Agreement may not be changed, modified, released, discharged, abandoned or
otherwise amended, in whole or in part, except by an instrument in writing,
signed by myself and a majority of the members of the Board.
I
agree that any subsequent change or changes in my duties, salary or compensation
shall not affect the validity or scope of this Agreement.
7.
I
acknowledge receipt of this Agreement and agree that with respect to the subject
matter hereof it is my final, complete and exclusive agreement with the Company,
superseding any previous oral or written representations, understanding or
agreements with the Company or any officer or representative with respect to
the
subject matter herein.
8.
In
the
event that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be modified to
the
extent necessary to give effect to the intent of the parties or, if necessary,
severed from this Agreement and the entire Agreement shall not fail on account
thereof, but shall otherwise remain in full force and effect.
9.
This
Agreement shall be construed in accordance with the laws of the State of
Maryland without regard to its choice of law principles.
10.
This
Agreement shall be binding upon me, my heirs, executors, assigns, and
administrators and shall inure to the benefit of the Company, its successors
and
assigns.
I
acknowledge that the foregoing restrictions contained in Section
4
are
reasonable in all respects including the scope, duration and geographic
limitations. I agree that the restrictions are an appropriate means of
protecting the Company’s legitimate business interests, and no greater than
necessary to protect the Company’s interests. I acknowledge that these
restrictions will not unreasonably interfere with my ability to make a
living.
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4
-
Dated:
__________ _____, 2006
| _________________ | ||
| Executive Signature | ||
| Xxxxxx X. Xxxxxxxxx |
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5
-
Accepted
and Agreed to:
Fortress
International Group, Inc.
By:______________________
Name:
Xxxxxx X. Xxxxx
Title:
Chairman
Date:_____________________
359767v3
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