EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this 30 day of April 1997
between NYMA, INC. (the "Company" and the "Employer"), and Xxxxx X. Xxxxxxx
(the "Employee").
WITNESSETH:
WHEREAS, the Employee has heretofore for many years served in an
executive capacity with the Company and as a consequence thereof has acquired
significant management skills and experience; and
WHEREAS, the Company has entered into that certain Agreement and Plan
of Merger (the "Merger Agreement") dated as of even date herewith with NYMA
Acquisition, Inc. and certain stockholders of the Company pursuant to which
NYMA Acquisition, Inc. has merged with and into the company, with the Company
being the surviving corporation.
WHEREAS, the Company desires to continue to employ the Employee as
its President, for the term of employment stated herein subject to the
conditions hereof; and
WHEREAS, the Employee is willing and able to undertake employment
with the Company subject to the terms and conditions started herein.
NOW, THEREFORE, the Company and the Employee each agree as follows:
1. The Company hereby employs the Employee and the Employee accepts
continued employment as President, for the company. In such capacity, the
Employee shall perform such duties and exercise such powers for the Company and
its subsidiaries (if any) as the Chairman of the Board of Directors (the
"Chairman"), or his designee, may assign to or vest in him from time to time
commensurate with his position, including, without limitation, the duties and
services described in attachment Exhibit A. During the period of employment
with the Company, the Employee will devote his best efforts to the interest of
the Company and will not engage in other employment or in any activities
detrimental to the best interests of the Company without the prior written
consent of the Chairman.
2. This Agreement shall be for a term of Three (3) years,
commencing on the 30th day of April, 1997 and ending on the 29th day of April,
2000, unless the term is terminated earlier in accordance with this Agreement.
This Agreement shall be automatically extended from year to year thereafter for
additional one (1) year periods under the same terms and conditions, unless
either the Company or the Employee notifies the other party, in accordance with
this Agreement, no later than six (6) months prior to the expiration of the
term of the Agreement, or of any extension thereof, of its intent to terminate
the Agreement.
This Agreement may be terminated (a) by the Company (i) by giving, in
accordance with this Agreement, six (6) months notice of such termination, or
(ii) in accordance with Section 11 of this Agreement, or (b) by the Employee
giving to the Company, in accordance with this Agreement, six (6) months notice
of termination at any time the Agreement is in force. In the event this
Agreement
is terminated by the Company pursuant to Section 2(a)(i) above, the Company
hereby undertakes to continue to pay to the Employee his then current base
salary during the shorter of the notice period or the remaining term of this
Agreement.
3. While this Agreement is in effect, the Company will pay to the
Employee as compensation for this services a base salary of $20,833 per month
($250,000 annualized). Such base salary shall be subject to review annually by
the Board of Directors. The Employee shall participate in an executive
compensation plan maintained by the Company. The terms, conditions,
objectives, and incentive amount shall be communicated in writing annually to
the Employee by the Company.
4. The Company shall reimburse the Employee for all reasonable and
necessary expenses, including, but not limited to, travel expenses incurred by
him in the performance of his duties under this Agreement. The Company
understands that the Employee has no other special or routine expense payments
made on his behalf as the date of this Agreement other than the allotment of a
monthly car allowance, which shall continue at up to $600 per month during the
term hereof.
5. If the Board of Directors shall determine that Employee is
unable to carry out his duties under this Agreement because of a disabling
illness or injury, other than any illness or injury resulting from chronic
alcoholism or drug dependence (as provided in Section 11 of this Agreement),
compensation during such disability period shall be paid as specified in any
relevant written employment/benefit policies and procedures of the Company as
may be in effect from time to time.
6. The Employee will be entitled to paid holidays and vacation as
specified by local Company practice and policy, except that the Employee shall
be granted the maximum amount of actual leave/vacation offered to employees by
the company.
7. The Employee shall not at any time, either during or after
termination of employment of the Company, disclose in any manner any Inventions
or Confidential Information (as defined below), or any financial, marketing, or
trading information relating to the Company or any of its Affiliates (unless
ordered to do so by the Company or a court of competent jurisdiction), until
such information becomes generally known, so long as such information does not
become generally known as a result of a breach of this Agreement by the
Employee. The Employee further agrees not to make copies of such Confidential
Information except in the scope of this employment, and upon termination of
this employment or upon earlier request of the Company shall return or deliver
to the company all tangible forms of such Confidential Information in his
possession or control, including but not limited to drawings, specifications,
documents, records, computer media, devices, models, or any other material and
copies or reproductions thereof.
The term "Inventions" means designs, trademarks, discoveries,
formulae, processes, manufacturing techniques, trade secrets, invention,
improvement, ideas or copyrightable works, including all rights to obtain,
register, perfect and enforce these proprietary interests.
The term "Confidential Information" means information of a
proprietary, secret or confidential nature pertaining to any aspects of the
business of the Company or its Affiliates or its customers or suppliers, where
of a technical nature or otherwise. The Employee recognizes and acknowledges
that the list of the Company's customers and prospects, as it may exist from
time to time,
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is a valuable, special and unique asset of the Company's business. As such,
the Employee will not, during or after the term of his employment, disclose
the list of the Company's customers and prospects or any part thereof to any
person, firm, corporation, association, or other entity for any reasons or
purpose whatsoever. In the event of a breach or threatened breach by the
Employee of this paragraph, the Company shall be entitled to an injunction
restraining the Employee from such disclosure.
8. The Employee agrees that, during the term of this employment, he
will not solicit or encourage any employee of the Company to either terminate
his employment with the Company or to accept employment with any other employer
with whom the Employee might become affiliated subsequent to his termination.
9. The Employee agrees that during his employment, he shall not be
engaged or involved in any business in any capacity, other than the business of
the Company and its subsidiaries, except with the express prior written consent
of the Company.
10. The Employee shall disclose to the Company any improvements,
discoveries, inventions, or secret processes made, discovered or developed by
the Employee, either solely or jointly with others, while the Employee works
for the Company, and which improvements, discoveries, inventions or secret
processes in any affect or relate to the business of the Company or its
subsidiaries. Any such improvements, discoveries, inventions or secret
processes shall be the sole and exclusive property of the Company.
The Employee further agrees to perform, during or after termination
of his employment, all acts deemed necessary or desirable by the company to
permit and assist it, at its expense, in obtaining and enforcing the full
benefits, enjoyment, rights and title throughout the world of any Inventions
assigned to the Company as set forth above. Such acts may include, but are not
limited to, execution of documents and assistance or cooperation in legal
proceedings. In order to achieve such ends, the Employee appoints the Company
as his attorney in fact with full power and authority to do and perform all
matters and things necessary to accomplish such actions. The Company may
appoint, remove at will or substitute any person as attorney in fact for the
Employee.
11. Notwithstanding the provisions of Section 2 of this Agreement,
the employment of the Employee may also be terminated (a) on the death of the
Employee; or (b) for cause (as defined below). Termination for cause under
this Section shall be effective as of the date of the Company gives notice to
the Employee in accordance with this Agreement. Termination for cause shall be
generally limited to the following acts by, or conditions with respect to, the
Employee, as shall be determined by the Board of Directors, acting in their
reasonable discretion:
a. chronic alcoholism;
b. drug addiction;
c. conviction for commission of a felony;
d. fraud or dishonesty for material personal gain at the
expense of Company or its Affiliates; or
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e. committing acts amounting to gross negligence of willful
misconduct to the detriment of the Company or its Affiliates.
In the case of events (a) or (b) above, the Company, as a severance
payment, shall continue to pay the Employee for a period of three (3) months
following such termination at his monthly salary then in effect.
12. The Employee shall be entitled to participate in all benefit
plans in effect from time to time at the Company (a) for which he qualifies or
(b) for which he could qualify in due course, at such time as he does so
qualify. The Company reserves the right to discontinue or to amend such plans
to conform to legal requirements or for other reasons, as determined by the
Company to be in the best interest of the business.
13. Upon termination of his employment, the Employee shall
immediately resign any directorships, offices or other positions which he may
hold in the Company or any of its Affiliates.
14. For a period of (a) three (3) years following the date the
Employee gave notice during the initial term of this Agreement in Accordance
with Section 2(b); (b) six (6) months following the date the Company gave
notice in Accordance with this Agreement Section 2(a)(i); (c) three (3) months
following the date the company gave notice in Accordance with this Agreement
with this Agreement Section 1l(a) and 1l(b) or (d); one (1) month following the
date the Company gave notice in Accordance with this Agreement Section 11(c),
11(d) or 11(e); employee shall not, without the express prior written consent
of the Company, directly or indirectly, anywhere in the United States, whether
for himself or for any other person or entity, and whether as a proprietor,
principal, shareholder (other than the holder of not more than five percent
(5%) of the stock of a corporation), lender, partner, agent director, officer,
employee, consultant, independent contractor, joint venturer or any other
capacity whatsoever, at any time during the period of time described above, (i)
enter into or engage in any business or other enterprise, or render, offer or
attempt to render or solicit the rendition of services to, any business,
individual or other enterprise, in direct competition with any business which
is being engaged in or which is contemplated to be engaged in by the Company or
its Affiliates at the date after termination, (ii) solicit for employment or
employ to or for the benefit of the Employee or any other person or entity, any
employee of the Company or its Affiliates, or (iii) urge, directly or
indirectly, any client or referrer of clients, customers, or accounts of the
Company or its Affiliates to discontinue, in whole or in part, business with
the Company or any Affiliate, as the case may be, or not to do business with
the Company or such Affiliate. The term "Affiliate" means any person or entity,
directly or indirectly, controlled by or under common control with the Company.
15. This Agreement sets forth the entire understanding between the
parties as to the subject matter of this Agreement and merges and supersedes
all prior (but not contemporaneous) agreements, commitments, representations
writing and discussions between them; and neither of the parties shall be bound
by any obligations, conditions, warranties or representations, with respect to
the subject matter of this Agreement, other than as expressly provided in this
Agreement or as duly set forth on or subsequent to the date hereof in writing
and signed by the proper and duly authorized representative of the party to be
bound hereby.
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16. All notices, approvals, consents, requests or demands required
or permitted to be given under this Agreement shall be in writing and shall be
deemed sufficiently given when deposited in the mail, registered or certified,
postage prepaid, and addressed to the party entitled to receive such notice at
the following address or other such addressed as the parties may subsequently
designate:
The Company/Employer: NYMA, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
with a copy to: FDC Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
The Employee: Xxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If notice is given by any other method, it shall be deemed effective when the
written notice is actually received.
17. No party shall be deemed to have waived any right, power or
privilege under this Agreement or any provisions hereof unless such waiver
shall have been duly executed in writing and acknowledged by the party to be
charged with such waiver. The failure of any party at any time to insist upon
performance of any of the provisions of this Agreement shall in no way be
construed to be a waiver of such provisions, nor in any way effect the validity
of this Agreement or any part hereof. No waiver of any breach of this
Agreement shall be held to be a waiver of any subsequent breach.
18. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Maryland.
19. Each party hereto irrevocably and unconditionally agrees that
any suit, action or other legal proceeding arising out of this Agreement may be
brought only in the County of Xxxxxxxxxx, State of Maryland.
20. The Prevailing party in any action to interpret or enforce this
Agreement shall receive its costs and expenses (including, without limitation,
reasonable attorney's fees) from the losing party in such action.
21. This Agreement is binding on the Employee and on the Company and
its successors and assigns (whether by assignment, by operation of law or
otherwise).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
/s/ Xxxxx X. Xxxxxxx
______________________________
Xxxxx X. Xxxxxxx
NYMA, INC.
By:____________________________
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EXHIBIT A
XXXXX X. XXXXXXX
DUTIES AND RESPONSIBILITIES
Whereas NYMA, Inc. (the "Company") shall operate initially as a subsidiary of
FDCT Corp., the Employee shall serve as President of this subsidiary and be
responsible and accountable for:
- Financial management of the Company, including achieving
annual objectives for revenue and profit;
- Complete and satisfactory performance of all contractual
obligations of the Company to its customers, teaming partners,
subcontractors, and suppliers; Growth of the Company by
winning new contracts, direct sales, and other necessary new
business activities;
- Effectively leading and managing the employees of the Company
so as to maintain high employee morale, minimize employee
turnover and vacant positions, and assure the availability of
the skills necessary for the success of Company's business;
- Working in a cooperative and supportive manner with other
parts of FDC Technologies, Inc. and its Affiliates so as to
enhance the overall profitability, growth, competitiveness,
planning, and image of the Company as well as FDC
Technologies, Inc. and its Affiliates;
- Effectively communicating the status, plans, issues, concerns,
requirements, risks, accomplishments, and shortcomings of the
Company to the senior management of the Company FDC
Technologies, Inc.
- Performing other duties as assigned by the senior management of
the Company and FDC Technologies, Inc.
Over time, the Employer may elect to restructure the Company and/or its
relationship to FDC Technologies, Inc. Such change may result in changes to the
duties and responsibilities of the Employee. Changes in the Employee's duties
and responsibilities will be communicated to the Employee in writing as a
revision to this EXHIBIT A.
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