EXHIBIT 10(ll)
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EMPLOYMENT & NON-COMPETE AGREEMENT
This Agreement is made as of October 11, 1995 between Infodata
Systems Inc., a Virginia corporation (the "Company"), and Andrew M. Fregly
("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 $90,000 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.
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.
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 disability 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 (60) 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 commission 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 Employee
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) disturb, 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 agrees 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 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 of law or equity of competent
jurisdiction for specific performance and/or injunctive 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 agrees that he will not
disclose to any unauthorized Person or use for his own account any of such
Confidential Information without the Board's written consent, unless and to
the extent that the aforementioned matters become generally known to and
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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:
To the Company: Infodata Systems Inc.
12150 Monument Drive, Suite 400
Fairfax, Virginia 22033
Attention: Mr. Harry Kaplowitz, President
To Employee: Andrew M. Fregly
3151 K Covewood Court
Falls Church, Virginia 22042
or such other address or to the attention of such other Person as
the recipient party shall have specified by prior written 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, void or 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 hereunder 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.
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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 (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/Andrew M. Fregly
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Harry Kaplowitz Andrew M. Fregly
President
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