Employment & Non-Compete Agreement - Infodata Systems Inc. and Richard M. Tworek
EMPLOYMENT & NON-COMPETE AGREEMENT
This Agreement is made as of October 11, 1995 between Infodata Systems Inc., a
Virginia corporation (the "Company"), and Richard M. Tworek ("Employee"). The
Company and Employee agree as follows:
1. Employment. The Company agrees to employ Employee and Employee accepts such
employment by the Company upon the terms and conditions set forth in this
Agreement, for the period beginning on the date of this Agreement and ending
upon termination pursuant to paragraph 4 (the "Employment Period").
2. Compensation. In consideration for the valuable services to be rendered by
Employee and for his agreement not to compete against the Company as described
in paragraph 5, the Company hereby agrees that during the two years of the
Employment Period, the Company will pay Employee a gross salary at the annual
rate of $125,000 per annum (the "Base Salary"). Employee's Base Salary may be
adjusted annually based on an annual performance salary review as determined in
the reasonable discretion of the Board of Directors of the Company (the
"Board"); provided, however, that Employee's Base Salary may not be adjusted to
an amount which is less than the initial base salary amount stated above.
Employee will also be eligible for participation in the Company's incentive
compensation program and Stock Option Plan. Employee will be appointed as a
corporate senior vice president of the Company and the president of the Merex
Division of the Company, as well as appointed to serve on the Company's
Management Committee, all for such time as may be determined in the reasonable
discretion of the Board.
3. Services. During the Employment Period, Employee agrees to devote his best
efforts and substantially all of his business time and attention to the business
affairs of the Company (except for reasonable vacation periods subject to the
reasonable approval of the Board or reasonable periods of illness or other
incapacity). During the Employment Period, Employee agrees to render such
services as the Board may from time to time direct. During the Employment
Period, Employee agrees that he will not, except with the prior written consent
of the Board or President of the Company, become engaged in or render services
for any business other than the business of the Company. The Board and the
President of the Company hereby agree that Employee may render services for the
businesses listed on Exhibit "A" hereto so long as Employee's services to such
other businesses does not unreasonably interfere, in the opinion of the Board or
the President of the Company, with Employee's performance of his duties to the
Company.
4. Termination. The Employment Period will continue from the date of this
Agreement for a period of twenty-four (24) months, unless extended by the mutual
agreement of the Company and Employee or unless terminated earlier by (a)
Employee's death or permanent disability which renders the Employee unable to
perform his duties hereunder (as determined by the provider of the Company's
disabili-
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ty insurance under the terms of the Company's disability insurance policy), (b)
by Employee's resignation upon prior written notice to the Company of sixty (6)
days or (c) the Board for Cause. For purpose of this paragraph 4, "Cause" shall
mean (i) the failure or refusal of Employee to follow the lawful directives of
the Board or its designee (except due to sickness, injury or disabilities), (ii)
inattention to duty or any other willful, reckless or negligent act (or omission
to act) by Employee, which, in the good faith judgment of the Board, materially
injures the Company, including the failure to follow the policies and procedures
of the Company, (iii) a material breach of this Agreement by Employee or (iv)
the commission by Employee of a felony or other crime involving moral turpitude
or the omission by Employee of an act of financial dishonesty against the
Company.
5. Non-Compete.
(a) The non-compete provisions of this paragraph 5 will apply to
Employe during the Employment Period and upon the expiration of the Employment
Period or the earlier termination of the Employment Period under paragraphs 4(b)
or 4(c) above. In the event the Employment Period is earlier terminated without
Cause, then no part of this paragraph 5 will apply to Employee.
(b) Employee recognizes and acknowledges that by virtue of accepting
employment hereunder, Employee will acquire valuable knowledge, enhance his
professional skills and experience, and learn proprietary trade secrets and
Confidential Information (as hereinafter defined in paragraph 6) of the Company.
In consideration of the foregoing and this employment contract, Employee agrees
that during the Employment Period and for two (2) years thereafter (the
"Non-Compete Period"), Employee will not directly or indirectly (i) request,
induce or attempt to influence any then existing client, customer or supplier of
the Company to curtail any business they are currently, or in the last 36 months
have been, transacting with the Company or Merex, Inc.; (ii) distrub, or attempt
to disturb, any business relationship between any third party and the Company or
Merex, Inc.; or (iii) make any statement to any third party, including the press
or media, likely to result in adverse publicity for the Company or Merex, Inc.
(the "Non-Compete"). Furthermore, during the Non- Compete Period, Employee shall
not, without the Company's prior written consent, directly or indirectly,
solicit, encourage or attempt to influence any employee to leave the employment
of the Company or Merex, Inc. Employee agrees that for a one (1) year period
immediately following the Employment Period, Employee shall not employ any
person who is or was an employee of the Company or Merex, Inc. Employee agress
that the restraint imposed under this paragraph 5 is reasonable and not unduly
harsh or oppressive.
(c) If, at the time of enforcement of any provision of paragraph 5(b) above, a
court or arbitrator holds that the
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restrictions stated therein are unreasonable under circumstances then existing,
the Company and Employee agree that the maximum period, scope, or geographical
area reasonable under such circumstances will be substituted for the stated
period, scope or area.
(d) Since a material purpose of this Agreement is to protect the
Company's investment in the Employee and to secure the benefits of his
background and general experience in the industry, the parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this paragraph 5. Therefore, in the event of a breach by
Employee of any of the provisions of this paragraph 5, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
its favor, apply to any court or law or equity of competent jurisdiction for
specific performance and/or inunctive or other relief in order to enforce or
prevent any violations of the provisions of this Agreement.
6. Confidential Information. Employee acknowledges that the information,
observations, data and trade secrets (collectively, "Confidential Information")
obtained by him during the course of his performance under this Agreement
concerning the business or affairs of the Company are the property of the
Company. For purposes of this Agreement, "trade secret" means any method,
program or compilation of information which is used in the Company's business,
including but not limited to: (a) techniques, plans and materials used by the
Company, (b) business and marketing methods and strategies employed by the
Company, (c) all computer hardware and software developed or utilized by the
Company in its business and (d) all lists of past, present or prospective
clients, customers and suppliers of the Company. For purposes of this Agreement,
all such Confidential Information of the Company shall include all Confidential
Information of Merex, Inc. Employee agress that he will not disclose to any
unauthorized person or use for his own account any of such Confidential
Information without the Board's writen consent, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a result of Employee's acts or omissions to act or
become known to Employee lawfully outside the scope of his employment under this
Agreement. Employee agrees to deliver to the Company at the termination of his
employment, or at any other time the Company may request, all memoranda, notes,
plans, records, reports and other documents (and copies thereof) relating to the
business of the Company which he may then possess or have under his control.
7. Notices. Any notice provided for in this Agreement shall be in writing and
shall be either personally delivered, sent by overnight courier (e.g. Federal
Express) or mailed by first class certified mail, return receipt requested, to
the recipient at the address below indicated:
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To the Company: Infodata Systems Inc.
12150 Monument Drive, Suite 400
Fairfax, Virginia 22033
Attention: Mr. Harry Kaplowitz, President
To Employee: Richard M. Tworek
3856 St. Clair Court
Monrovia, Maryland 21770
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior writen notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered,
sent or mailed.
8. Miscellaneous. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law.
The parties agree that (i) the provisions of this Agreement shall be severable
in the event that any of the provisions hereof are for any reason whatsoever
invalid, voidor otherwise unenforceable, (ii) such invalid, void or otherwise
unenforceable provisions shall be automatically replaced by other provisions
which are as similar as possible in terms to such invalid, void or otherwise
unenforceable provisions but are valid and enforceable and (iii) the remaining
provisions shall remain enforceable to the fullest extent permitted by law. This
Agreement embodies the complete agreement and understanding among the parties
and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way. This Agreement may be executed on
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement. This Agreement is
intended to bind and inure to the benefit of and be enforceable by Employee and
the Company, and their respective successors and assigns. Employee may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company. The Company may assign its rights and delegate
its duties hereundfer without the consent of Employee to Permitted Transferees.
All questions concerning the construction, validity and interpretation of the
Agreement will be governed by the internal law, and not the law of conflicts, of
the State of Virginia. Any provision of this Agreement may be amended or waived
only with the prior written consent of the Company and Employee.
9. Definitions. "PERSON" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
governmental entity or any department or agency thereof. "PERMITTED TRANSFEREE"
shall mean (a) any successor by merger or consolidation to the Company or any
Permitted Transferee; (b) any purchaser of all or substantially all of the
Company's or any Permitted Transferee's assets; and (c) any lender to (i) the
Company, (ii) any Permitted Transferee and/or
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(iii) any affiliate of the Company or of any Permitted Transferee.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
INFODATA SYSTEMS INC.
By: /s/Harry Kaplowitz /s/Richard M. Tworek
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Harry Kaplowitz Richard M. Tworek
President
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