This EMPLOYMENT AGREEMENT (this Agreement) is made and entered into as of May 8, 2019, by and between IronNet Cybersecurity, Inc., a Delaware corporation (the Company), and General Keith Alexander (Executive). The Company will continue to employ Executive and Executive accepts such continued employment upon the terms and conditions set forth in this Agreement.
1. Term. Executives employment under this Agreement will begin on May 8th, 2019 (Commencement Date) and continue until terminated at the will of either party for any reason or no reason, with or without notice, cause or liability (Term), subject to the terms set forth in Section 4.
2. Duties and Extent of Services.
a. Duties. Executive shall be employed as Chairman, Founder and co-Chief Executive Officer (CEO) reporting directly to the Board of Directors, with such duties and responsibilities as are normally incident to such title, and such other duties as mutually determined by the Board of Directors.
b. Extent of Services. During the Term, Executive shall devote substantially all of Executives working time and reasonable best efforts to the advancement of the Company and interests of the Company and to the discharge of Executives duties and responsibilities hereunder; provided, however, that nothing in this Agreement shall preclude Executive from devoting reasonable periods required for (i) participating in professional, educational, philanthropic, public interest, charitable, social or community activities, (ii) serving as a director or member of an advisory committee of any corporation or other entity that Executive is serving on as of the Commencement Date or any other corporation or entity that is not in competition with the Company without discussion and consent of the Board of Directors, or (iii) managing his personal investments; provided, further, that any such activities set forth in clauses (i) through (iii) above do not materially interfere with the Executives regular performance of his duties and responsibilities hereunder. Executive shall not engage in any activity which is in any way in conflict with the interests of the Company or that would interfere in any respect with the performance of Executives duties and responsibilities to the Company.
3. Compensation and Benefits
As compensation for all services performed by Executive hereunder during the term, and subject to performance of Executives duties and responsibilities to the Company, pursuant to this Agreement or otherwise:
a. Base Salary and Bonus. The Company shall pay Executive a base salary, at the rate of Three Hundred Sixty Thousand Dollars ($360,000.00) per year, payable in bi-weekly increments in accordance with the Companys normal payroll schedule. Executives base salary may be increased (but not decreased below the original base salary amount) from time to time, subject to the performance of goals and/or milestones established by the Company. Executive shall also be eligible for an annual bonus of up to Two Hundred Thousand Dollars ($200,000.00), as may be approved subject to a bonus agreement to be developed by the Company and Executive, but ultimately at the Companys sole discretion or as otherwise provided in such bonus agreement, provided that at all times (except as may otherwise be provided in the bonus agreement), such eligibility for the same shall be subject to the performance of the global sales teams and overall performance of the Company.
b. Paid Time Off. Executive will continue to be eligible for paid vacation, paid sick days and paid Company holidays consistent with the Companys policies as those policies may be amended from time to time.
c. Benefit Plans. Executive will be offered the opportunity to participate in such retirement, saving and health and welfare benefit plans, and any other employee benefit plans for which Executive is eligible as may be established from time to time by the Company and as generally made available to other similarly situated executive employees, beginning on the first day of employment.
c. Expenses. The Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by him during the Term in performing services hereunder, in accordance with the policies and procedures then in effect and established by the Company for its senior executive officers.
d. Equity Awards. The Executive shall be eligible to be granted such equity awards following the Commencement Date as the Board shall determine in its sole discretion.
4. Severance and Equity Acceleration. (Outside of Change in Control) If Executive is subject to an Involuntary Termination (as defined in Section 4.b below), then the Company will pay Executive, within 30 days of such termination, a single upfront lump sum cash amount, in accordance with the Companys standard payroll practices, equal to Executives on-target earnings (OTE) for the year of termination, defined as Executives full annual salary and full annual incentive bonus (assuming full achievement of relevant target milestones) and Executive shall immediately receive accelerated vesting for the time-based vesting components of each of Executives current RSU grants. The number of RSUs that will accelerate under these circumstances will be the lesser of 50% of the original number of RSUs granted or the total number of remaining RSUs/shares unvested. Executives base salary will be paid at the rate in effect at the time of the Involuntary Termination. In addition, the Company will pay Executive, in accordance with the Companys standard payroll practices, equal to 12 months of COBRA premiums grossed up for taxes to be paid out over 12 month period. The foregoing payments are conditioned upon Executive: (i) returning all Company property in his possession, (ii) resigning as a member of the Boards of Directors of the Company and all of its subsidiaries, to the extent applicable, and (iii) executing the Companys general release of all claims, to the extent commercially reasonable.
a. Termination for Cause. For purposes of this Agreement, a termination for Cause means only the following:
(i) if Executive has committed a felony, or Executive pleads guilty or nolo contendere to, any crime or offense (whether or not involving the Company) either (A) causing substantial harm to the Company (whether or not for personal gain), or (B) constituting a crime of moral turpitude that is punishable by imprisonment in a state or federal correctional facility;
(ii) one or more acts of dishonesty by Executive resulting or intending to result in Executives personal gain or enrichment, in any material respect, at the expense of the Company;
(iii) conduct by Executive in connection with Executives employment duties that is fraudulent or unlawful, or a breach of fiduciary duty, and that is harmful in any material respect to the Company;
(iv) misconduct by Executive, which materially discredits or materially damages the Company;
(v) willful failure by Executive to comply with the lawful direction of the Companys Board of Directors, to the extent such direction is not inconsistent with the terms of this Agreement; or
(vi) any material breach by Executive of Executives obligations under this Agreement or any other agreement with the Company (where Executive fails to cure such breach, if curable, within ten (10) business days after being notified in writing by the Company of such breach), provided, however, that, notwithstanding the foregoing, no failure of the Executive or the Company to achieve performance goals, alone, shall be treated as a basis for termination of the Executives employment for Cause under clause (v) above.
For purposes of this Agreement, whether Executive has committed an act or omission of the type referred to in clauses (i) through (vi) above will be determined by the Companys Board of Directions, in its good faith discretion, based upon the facts known to the Board of Directors at the relevant time.
b. Termination for Good Reason. Resignation for Good Reason means a Separation as a result of Executives resignation after one of the following conditions has come into existence without Executives written consent (i) Executives fixed annual compensation (being Executives base salary and non-discretionary bonus, if any) is reduced 20% or more compared with Executives fixed annual compensation prior to such change, (ii) Executives duties or responsibilities are materially reduced when compared to Executives duties or responsibilities in effect immediately prior to such change; (iii) the relocation of Executives principal place of business to a location more than fifty (50) miles from such principal location, if such relocation increases Executives daily commuting distance, or (iv) Executive no longer reports directly to the Board of Directors (or in the event of a Change in Control of the Company, Executive ceases to report directly to the CEO (or Board of Directors) of the surviving entity in such transaction following the Change in Control). A Resignation for Good Reason will not be deemed to have occurred unless Executive gives the Company written notice of the condition giving rise to the attempted Resignation for Good Reason within 90 days after the condition comes into existence and the Company fails to remedy the condition within 30 days after receiving such written notice. Involuntary Termination means either (x) Executives Termination Without Cause or (y) Executives Resignation for Good Reason. Separation means a separation from service, as defined in the regulations under Section 409A of the Code. Termination Without Cause means a Separation as a result of a termination of Executives employment by the Company without Cause, provided Executive is willing and able to continue performing services within the meaning of Treasury Regulation 1.409A-1(n)(1). For the avoidance of doubt, and notwithstanding any of the foregoing, Executive acknowledges and agrees that none of the Companys appointment of a co-CEO in February 2019, the attendant division of duties between Executive and the co-CEO, or the Co-CEOs becoming the sole CEO (and Executive no longer holding the position of CEO or having the duties or responsibilities attendant therewith) will constitute grounds for a Resignation for Good Reason.
c. Standard Termination Benefits. If Executives employment with the Company terminates for any reason, Executive will be entitled to receive, in addition to any other benefits set forth herein: (i) payment of his accrued but unpaid Base Salary then in effect through the date of termination; (ii) any accrued and vested benefits under any compensation and benefit arrangements of the Company in which Executive was a participant on the date of termination, determined in accordance with the applicable terms of such arrangements; and (iii) reimbursement for all reasonable business expenses incurred by Executive in the performance of his duties.
5. Change in Control Benefits:
(a) Change in Control and No Involuntary Termination: If there is a Change in Control (as defined below) within the first two years of Executives employment, then Executive will immediately receive accelerated vesting for the time-based vesting components of all of Executives current RSU grants. The number of RSUs that will accelerate under these circumstances will be the lesser of 50% of the original number of RSUs granted or the total number of remaining RSUs/shares unvested.
(b) Change in Control and Involuntary Termination: If there is a Change in Control prior to the termination of Executives employment with the Company and Executive is subject to an Involuntary Termination within 6 months before or 12 months after the Change in Control, then the Company shall pay Executive, in accordance with the Companys standard payroll practices, a single upfront lump sum cash payment within 30 days of such termination, on-target earnings (OTE) for the year of termination, defined as full annual salary and full annual incentive bonus (assuming full achievement of relevant target milestones). Executives base salary will be paid at the rate in effect at the time of the Involuntary Termination. In addition, the Company will pay Executive, in accordance with the Companys standard payroll practices, 12 months of COBRA premiums grossed up for taxes to be paid out over 12 month period after your separation, and the time-based and performance-based vesting requirements of all current RSU awards will be deemed to have been satisfied in full effective as of the termination date. Notwithstanding the foregoing, (i) with respect to any restricted stock units (RSUs) granted to the Executive prior to the Commencement Date, the satisfaction of the time-based and performance-based vesting requirements shall not change the time at which shares of Company common stock are delivered under the RSU and for purposes of determining such delivery, the Executive shall be deemed to have continued to perform services on each applicable vesting date and (ii) with respect to any RSUs granted to Executive following the Commencement Date, for any Involuntary Termination following the Change in Control, the shares subject to the RSU that have not satisfied the time-based vesting requirement as of the date of the Involuntary Termination shall be delivered promptly following (and no more than 10 days) later than the satisfaction of the requirements in the following sentence. The foregoing payments are conditions upon Executive (i) returning all Company property in his possession, (ii) resigning as a member of the Board of Directors of the Company and all of its subsidiaries, to the extent applicable, and (iii) executing the Companys general release of all claims, to extent commercially reasonable.
(c) For purposes of this Agreement, Change in Control shall mean the consummation of any of the following transactions pursuant to a bona fide offer by an unrelated third party that is not an affiliate of the Company in a single transaction or series of related transactions: (i) the sale or issuance of equity interests of the Company to any unrelated third party (other than (A) a person who is an existing equity holder, (B) any trust, partnership or corporation controlled by an existing equity holder, (C) any employee benefit plan of the Company or any affiliate, or any entity holding equity for or pursuant to the terms of any such employee benefit plan), such that the equity holders of the Company immediately prior to such transaction and their respective affiliates hold less than a majority (i.e., less than 50%) of the total fair market value or total voting power of the then issued and outstanding voting equity interests of the Company immediately following such transaction; (ii) the consummation of a merger of the Company with or into another person if more than one-half of the combined voting power of the continuing or surviving persons securities outstanding immediately after the merger is owned by persons who were not equity holders or affiliates of equity holders of the Company immediately before the merger; or (iii) the sale, transfer or other disposition of all or substantially all of the assets of the Company and its affiliates, taken as a whole, excluding for purposes of (i), (ii), and (iii) above, any grant of security interests in any equity securities or assets of the Company or any affiliates of the Company. Notwithstanding anything herein to the contrary, no event or transaction or series of events or transactions shall constitute a Change in Control unless such event or transaction or series of events or transactions constitutes a change in control event within the meaning of Treasury Regulation 1.409A-3(i).
6. Protection of Confidential Information. Executive recognizes that by virtue of Executives employment with the Company, Executive will be granted otherwise prohibited access to trade secrets and other confidential and proprietary information which is not known to the Companys competitors or within the Companys industry generally, which was developed by the Company over a long period of time and/or at substantial expense, and which is confidential in nature or otherwise of great competitive value to the Company (Confidential Information). Confidential Information includes, but is not limited to, trade secrets, information relating to the Companys practices and methods of doing business; sales, marketing, and service strategies, programs, technologies, and procedures; customers and prospective customers, including, but not limited to, their particularized requirements and preferences, their product specifications, the identity and authority of their key contact persons, payment methods, and order histories and patterns; service, product and material costs; pricing structures; bids; responses to requests for proposals; bonus and incentive plans; vendors and sources of supply; financial position and business plans; computer programs and databases; research projects; new product and service developments; compositions, formulas, patterns, compilations, programs, techniques, devices, processes, plans, designs, and drawings; and any other information of the Company, its affiliates, or any of its vendors or customers, which the Company informs Executive, or which Executive should know by virtue of Executives position or the circumstances in which Executive learned it, is to be kept confidential. Confidential Information does not include information that is publicly available or otherwise known in the industry but not as a result of Executives violation of his obligations under this Agreement. Nothing in this Agreement shall prohibit or impede Executive from communicating, cooperating or filing a complaint with any U.S. federal, state or local governmental or law enforcement branch, agency or entity (collectively, a Governmental Entity) with respect to possible violations of U.S. federal, state or local law or regulation, or otherwise making disclosures to any Governmental Entity, in each case, that are protected under the whistleblower provisions of any such law or regulation, provided that in each case such communications and disclosures are consistent with applicable law. Executive does not need prior authorization (or to give notice to) the Company regarding any such communication or disclosure. Notwithstanding the foregoing, under no circumstance is Executive authorized to disclose any information covered by the Companys attorney-client privilege or attorney work product or Company trade secrets without prior written consent of the Companys Board of Directors.
(i) Executive will not, at any time during or after Executives employment with the Company, disclose, use or permit others to use any Confidential Information, except as required in the course of Executives employment for the benefit of the Company.
(ii) Executive will take all reasonable measures during and after Executives employment with the Company to protect the Confidential Information from any accidental or unauthorized disclosure or use.
(iii) Notwithstanding Executives confidentiality and nondisclosure obligations as set forth above, Executive is hereby advised as follows pursuant to the Defend Trade Secrets Act: An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
7. Return of Property. Upon the voluntary or involuntary termination of Executives employment with the Company, or at any time requested by the Company, Executive shall return to the Company all literature, correspondence, memoranda, reports, summaries, manuals, proposals, contracts, documents, computer disks and other electronic storage media, computer programs, mobile/smart phones, pagers, computers, and other materials and equipment of any kind which relate to the business of the Company, including specifically, but not exclusively, all materials which comprise or refer to the Companys Confidential Information. It is understood and agreed that all such materials are, and will remain, the exclusive property of the Company and that Executive will not retain any copy, facsimile or note memorializing any such materials or the contents thereof. Further while employed by the Company, Executive shall not, except for the benefit of the Company, use, copy or duplicate any Company documents or other materials.
8. Developments. Executive agrees as follows with regard to any developments that relate to the Companys business or Confidential Information, or that Executive conceives, makes, develops or acquires during the term of his employment with the Company and within the scope of his/her employment by the Company, including, but not limited to, any trade secrets, discoveries, inventions, improvements, ideas, programs, formulas, diagrams, designs, plans and drawings, whether or not reduced to writing, patented, copyrighted or trademarked (Developments):
(i) Executive shall promptly and fully disclose all Developments to the Company, and shall prepare, maintain, and make available to the Company adequate and current written records of such Developments and all modifications, research, and studies made or undertaken by Executive with respect thereto.
(ii) All Developments and related records shall become and remain the exclusive property of the Company and, to the extent Executive has any rights thereto, Executive hereby assigns all such rights, title, and interest to the Company and waives any moral rights he/she may have in any Developments.
(iii) Upon request by the Company, the Executive at any time, whether during or after his employment by the Company, shall execute, acknowledge and deliver to the Company, all assignments and other documents which the Company deems necessary or desirable to: (a) vest the Company with full and exclusive right, title, and interest to such Developments, and (b) enable the Company to file and prosecute an application for, or acquire, maintain or enforce, all letters of patent, trademark registrations, and copyrights covering such Developments.
(i) Executive understands that the foregoing provisions regarding assignments do not apply to any Developments for which no equipment, supplies, facility or trade secret information of the Company was used, and which were developed entirely on Employees own time, unless the Developments: (a) relate to the Companys business or to its actual or demonstrably anticipated research or development, or (b) result from any work performed by Executive for the Company.
9. Restrictions on Solicitation and Competition. Executive recognizes that by virtue of Executives employment with the Company, he may be introduced to and extensively involved in the servicing of long-standing customers of the Company; that he may be extensively involved in soliciting and servicing new customers identified, developed and/or secured by the Company during his employment; and that he may be afforded numerous and extensive resources to assist him in soliciting and servicing such customers. Executive understands and agrees that all efforts expended in soliciting and
servicing the Companys customers shall be for the exclusive benefit of the Company; that the Company shall secure and retain a proprietary interest in all such customers; and that Executive will not, during the Restricted Period, knowingly undertake any action which could reasonably be expected to disturb the Companys relationship with its customers in any material respect. Executive acknowledges the Companys legitimate interest in protecting its Confidential Information, customer relationships, referral relationships and general goodwill during Executives employment with the Company and for a reasonable period of time following the termination of Executives employment with the Company. Accordingly, Executive agrees that, during his employment with the Company and for a period of one (1) year following the voluntary or involuntary termination of his employment for any reason (the Restricted Period):
(i) Executive will not, directly or indirectly, without the express written consent of the Company, hire, employ, engage, or attempt to hire, employ or engage any Company Employee, or otherwise solicit, request, entice, or induce any Company Employee to terminate his/her or her employment or engagement with the Company, for the purpose of engaging in business activities that are competitive with the Companys business activities. The term Company Employee means an employee of the Company with whom Executive interacted for business purposes at any time during the six (6) month period immediately preceding the termination of Executives employment with the Company and who was employed by the Company at any time within the last sixty (60) days of Executives employment with the Company.
(ii) Executive will not directly or indirectly, solicit or accept business from any Company Customer, where such business would be competitive with the Companys business or services. The term Company Customer means (i) any customer of the Company to whom Executive played a role in selling, rendering or providing the Companys services at any time during the one (1) year period immediately preceding the termination of his employment; (ii) any entity for which Executive orchestrated, developed, supervised, coordinated or participated in marketing strategy, marketing plans and marketing campaigns; bid submissions; or responses to requests for proposals on behalf of the Company at any time during the one (1) year period immediately preceding the termination of his employment; or (iii) any entity as to which Executive acquired Confidential Information at any time during his employment with the Company.
(iii) Executive will not, on his own behalf, or through acceptance of any consulting engagement, assignment or employment with any third party, compete against the Company for work under any government contract held by the Company at any time during the Restricted Period, or under any re-compete, re-bid, extension or modification thereof. Nothing in this paragraph is intended to restrict Executive from accepting any consulting engagement, assignment or employment with any third party, including any Company Customer, to provide services that would not compete with the Companys business or services.
(iv) Executive will not directly or indirectly, knowingly interfere, or attempt to interfere with any relationship the Company has with any of its vendors or suppliers in any material respect.
10. Reasonableness of Restrictions. Executive acknowledges that the restrictions set forth in Sections 6, 7, 8 and 9 of this Agreement are reasonable to protect the Companys legitimate business interests and that such restrictions do impose an undue burden on Executive. Executive further agrees that his breach of Sections 6, 7, 8 or 9 of this Agreement would cause the Company immediate and irreparable harm and that the Company may pursue preliminary and permanent injunctive relief to enforce Sections 6, 7, 8 or 9.
11. Assignment. All of the provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto, except that the duties and responsibilities of Executive hereunder are of a personal nature and shall not be assignable or delegable by Executive.
12. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
13. Amendment, Waiver. Neither Executive nor the Company may modify, amend, or waive the terms of this Agreement other than by a written instrument signed by Executive and the Company. Either partys waiver of the other partys compliance with any specific provision of this Agreement is not a waiver of any other provision of this Agreement or of any subsequent breach by such party of a provision of this Agreement. No delay on the part of any party in exercising any right, power or privilege hereunder will operate as a waiver thereof.
14. Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage prepaid, registered or certified, and addressed to Executive at Executives last known address on the books of the Company or, in the case of the Company, at its principal place of business, attention of the Manager of the Company, or to such other address as either party may specify by notice to the other actually received.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and terminates all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of Executives employment with the Company, provided that any outstanding Company equity awards shall remain subject to the applicable equity award agreement with only the specific modifications set forth herein. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement, and that Executive voluntarily and knowingly enters into said Agreement.
16. Advice of Counsel and Construction. The parties acknowledge that all parties to this Agreement have been represented by counsel, or had the opportunity to be represented by counsel of their choice. Accordingly, the rule of construction of contract language against the drafting party is hereby waived by all parties. Additionally, neither the drafting history nor the negotiating history of this Agreement may be used or referred to in connection with the construction or interpretation of this Agreement.
17. Governing Law. This is a Maryland contract and shall be construed and enforced under and be governed in all respects by the laws of the State of Maryland, without regard to the conflict of laws principles thereof.
18. Effect of Excise Tax and Limit on Golden Parachute Payments.
(a) Contingent Reduction of Parachute Payments. If there is a change in ownership or control of the Company that would cause any payment or distribution by the Company or any of its subsidiaries or any other person or entity to the Executive or for the Executives benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (each, a Payment, and
collectively, the Payments) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the Code) (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the Excise Tax), then the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (after taking into account federal, state, local and social security taxes): (1) the Payments or (2) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the Safe Harbor Amount). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount, then the reduction will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. Any reductions pursuant to this Section shall be made in a manner intended to be consistent with the requirements of Section 409A of the Code and the Department of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidelines that may be issued after the Commencement Date (Section 409A).
(b) Determination of the Payments. All determinations required to be made under this Section 9, including whether and when the Safe Harbor Amount is required and the amount of the reduction of the Payments and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm or national law firm designated by Company (the Accounting Firm) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall cooperate with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.
(c) Adjustments. As a result of the uncertainty in the application of Section 4999 of the Code at the time of a determination hereunder, it is possible that Payments will be made which should not have been made under clause (a) of this Section 18 (Overpayment) or that additional Payments which are not made pursuant to clause (a) of this Section 18 should have been made (Underpayment). In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to Company together with interest at the applicable Federal rate provided in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service or a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by Company to or for the benefit of the Executive, together with interest at the applicable Federal rate provided in Section 7872(f)(2) of the Code.
(d) Consultation. The Company shall consult with the Executive in good faith regarding the implementation of the provisions of this Section 18 and the application of Sections 4999 and 409A of the Code; provided, that neither the Company nor any of its subsidiaries, employees or representatives shall have any liability to the Executive with respect thereto.
IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its duly authorized representative, and by Executive, as of the date first above written.
|IronNet Cybersecurity, Inc.|
|Name: William Welch|
|GEN. (Ret) Keith Alexander|| |