Exhibit 10.1
SM&A
EMPLOYMENT AGREEMENT
This Employment Agreement (this
“Agreement”) is entered into as of March 6, 2007, by
and between SM&A, a Delaware corporation (the
“Company”), and Cynthia A. Davis-Sailar
(“Employee”), with reference to the
following:
A.
The Company desires to employ
Employee on the terms and conditions set forth herein;
B.
Employee desires to perform services
for the Company as an employee of the Company on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration for
the promises and obligations set forth below, the Company and
Employee agree as follows:
1.
Employment and Term
.
1.1.
The Company agrees to employ, and
Employee agrees to be employed by the Company, on the terms and
conditions described below (the
“Employment”).
1.2.
This Agreement shall be effective as
of April 2, 2007(the “Effective Date”) and shall
terminate on April 1, 2010 unless sooner terminated pursuant to the
terms set forth below.
2.
Duties .
2.1.
Employee agrees that during the
Employment, Employee shall devote her full-time efforts to her
duties as an employee of the Company, now or in the future assigned
to Employee by the Company. From and after the Effective Date
of this Agreement, Employee shall serve as Chief Executive Officer
of the Company.
3.
Compensation
.
3.1.
As consideration for the performance
of Employee’s duties hereunder and for adherence to the
covenants in this Agreement, Employee shall be entitled to the
compensation set forth on Exhibit A attached hereto and
incorporated herein by this reference (the
“Compensation”).
3.2.
Employee understands and
acknowledges that, except as otherwise set forth in this Agreement,
the Compensation will constitute the full and exclusive
consideration to be received by Employee for all services performed
by Employee in connection with the Company’s employment of
Employee, and for the performance of all Employee’s promises
and obligations under this Agreement.
1
3.3.
Aside from the Compensation, the
Company may adopt, or continue in force, benefit plans for the
benefit of its employees or certain of its employees which may
include, but not be limited to, group life insurance, medical
insurance, etc. The Company may terminate any or all such plans at
any time and may choose not to adopt any additional or replacement
plans. Employee’s rights under any benefit plans now in force
or later adopted by the Company shall be governed solely by the
terms of such plans; provided, however, that in no event shall
Employee’s rights under any such benefit plans be less than
those of any other executive officer of the Company.
4.
Duty to Devote Full Time and
Avoid Conflict of Interest . Employee agrees that during the
Employment she shall devote her full-time efforts to her duties as
an employee of the Company. Employee further agrees that during the
Employment she shall not, directly or indirectly, engage or
participate in any activities which are in conflict with the best
interests of the Company. Notwithstanding the foregoing,
nothing herein shall preclude Employee from: (i) serving,
with the prior written consent of the Company, which consent shall
not be unreasonably withheld, as a member of the board of directors
or advisory boards (or their equivalents in the case of a
non-corporate entity) of non-competing businesses and charitable
organizations; (ii) engaging in charitable activities and community
affairs; and (iii) managing her personal investments and affairs;
provided , however , that the activities set out in
clauses (i), (ii) and (iii) shall be limited by Employee so as not
to materially interfere, individually or in the aggregate, with the
performance of her duties and responsibilities
hereunder.
5.
Compliance with Rules and
Regulations .
Employee agrees to comply with the Company’s rules,
regulations and practices as they may from time to time be adopted
or modified, so long as they are uniformly applied to all
employees.
6.
Non-competition, Non-recruitment
and Non-solicitation by Employee .
6.1.
Employee agrees that, during the
Employment, Employee will not engage in any activity competitive
with or adverse to the Company’s business or welfare, whether
alone, as a partner, or as an officer, director, employee or
shareholder of any other corporation and shall not otherwise
undertake planning for or the organization of any business activity
competitive with the Company’s business or combine or
conspire with other employees or representatives of the Company for
the purpose of organizing any such competitive business activity.
This prohibition shall not include ownership of less than five
percent (5%) of the outstanding stock by Employee in a publicly
traded corporation.
6.2.
During the Employment and for a
period of two (2) years following the termination of the
Employment, Employee shall not, directly or indirectly, induce,
solicit or influence or attempt to induce, solicit or influence any
person who is engaged or employed by the Company (whether part-time
or full-time and whether as an officer, employee, consultant, agent
or advisor), to terminate his/her employment or other engagement
with the Company. Employee further agrees that, during the
term of this Agreement and for two (2) years after termination of
the Employment, Employee will not in any manner seek to recruit for
employment any individual who is employed or engaged by the
Company, as an officer, employee, consultant, agent or advisor for
any person or entity other than the Company.
2
6.3
Employee agrees that during the
Employment and for two (2) years after termination of the
Employment, Employee shall not, directly or indirectly, personally,
or on behalf of or in conjunction with any person or entity, use or
rely in any manner confidential and/or proprietary material or
information constituting trade secrets (including Secrets as
defined in Section 7.1 below) to divert or take away any client or
customer of the Company.
7.
Trade Secrets of the
Company/Works and Property .
7.1
Employee acknowledges and
understands that during the Employment, Employee will have access
to and will utilize and review information which constitutes
valuable, important and confidential trade secrets, as that term is
interpreted under the Uniform Trade Secrets Act (California Civil
Code Section 3426 et seq.) and/or confidential and proprietary
material and information of or relating to the business of the
Company necessary for the successful conduct of the Company’s
business. This information includes, but is not limited to: (a)
listings of and data regarding the clients (past and current) of
the Company (collectively, the “Clients”); (b)
information regarding potential customers and clients; (c) data
relating to the identity of the Clients of the Company; (d)
information regarding bidding, billing and pricing practices; (e)
information regarding the nature and type of services rendered to
the Clients; (f) other methodologies, computer programs, databases,
processes, compilations of information, results of proposals, job
notes, reports and records, and (g) information regarding the
nature and type of software products sold to or under development
with any Client (all of which information is sometimes referred to
in this Agreement as the “Secrets”). The
foregoing notwithstanding, the Secrets shall not include
information or data which is (i) in the public domain, (ii)
generally known in the information technology staffing services
industry, (iii) already known to Employee as of the date she began
her employment with the Company, or (iv) rightfully disclosed to
Employee outside of the scope of her employment with the Company by
a third party not under a duty of confidentiality to the Company.
Employee understands further that the Secrets have been and will be
accumulated, by Employee and other personnel at the Company at
considerable expense to the Company (including but not limited to
compensation paid to the Company personnel dealing with the Secrets
and the Clients), and that the Company has and will continue to
expend its resources in order to maintain actively and vigorously
the confidentiality of the Secrets, as such information is
extremely valuable to the Company, and well worth the expense of
enforcement and preservation of such confidentiality. Accordingly,
Employee agrees as follows:
(a)
All of the Secrets shall be
safeguarded and treated as confidential by Employee.
(b)
Any and all data, notes, letters,
computer programs, email records, reports, telephone records and
all other written documentation relating to the business of the
Company (including but not limited to the Secrets) that may be
collected, compiled, written, reviewed or conceived by Employee,
whether set forth in tangible media or intangible, from or by
reason of services performed by Employee for the Company shall
become the sole and absolute property of the Company, and Employee
shall not assert or establish a claim for any statutory or common
law right or any other possessory or proprietary right with respect
to any of the above.
3
(c)
Employee shall hold the Secrets in
strictest confidence and shall not (i) disclose any Secrets to any
person, corporation, firm, or other entity, either during the
Employment or afterward, or (ii) use any Secrets in
Employee’s subsequent business or employment, without the
prior express written authorization of the Company; provided,
however, that Employee may disclose Secrets to the extent required
to do so by a subpoena lawfully issued in a judicial proceeding or
arbitration.
(d)
Employee shall not otherwise commit
any act which shall compromise the confidentiality of any Secrets,
including but not limited to making a copy of such property
(whether electronic, paper or otherwise) without the prior express
written authorization of the Company.
7.2
During the Employment, Employee
shall disclose in writing, fully, and on a timely basis, to the
Company, any and all “Works and Property” (as such term
is herein defined) realized in connection with the performance of
her duties under this Agreement. Employee acknowledges and
agrees that, during the Employment any and all Works and Property
shall constitute the sole and exclusive property of the Company and
Employee shall not have any rights thereto and/or any interest
therein. During the Employment, Employee shall assign,
transfer and convey to the Company, without further consideration,
any and all Works and Property in accordance with this
Agreement. For purposes of this Agreement, the term
“Works and Property” shall mean any and all works and
property including, but not limited to, all intellectual
properties, ideas, inventions, concepts, products, improvements,
innovations, discoveries, developments, methods, formulas,
techniques, software, know-how and writings which are made,
conceived, reduced to practice, developed, written, contributed to
or prepared by Employee whether or not patentable or copyrightable
and whether made solely by Employee or jointly with others.
All Works and Properties shall unconditionally be, become, and
remain the sole and exclusive property of the Company or any of its
affiliates, successors, or assignees, as the case may be.
Employee will promptly execute, acknowledge and deliver all
applications, oaths, declarations and further documents and will
provide such additional assistance as the Company or its counsel
may deem necessary or desirable to evidence the Company’s
title to such Works and Property. This section does not apply
to Works and Property that qualifies as a non-assignable invention
under Section 2870 of the California Labor Code. Employee
acknowledges having received from the Company a copy of said code
Section.
8.
Confidential Information of
Clients . All
ideas, concepts, information and written material disclosed to
Employee by the Company, or acquired from any of the Clients, and
all financial, accounting, statistical, personnel, and business
data and plans of the Clients, are and shall remain the sole and
exclusive property and proprietary information of the Company, or
said Client, and are disclosed in confidence by the Company or
permitted to be acquired from the Clients in reliance on
Employee’s agreement to maintain them in confidence and not
to use or disclose them to any other person except in furtherance
of the Company’s business.
4
9.
Return of Information
. At the time of the
termination of the Employment or upon request, Employee agrees to
deliver promptly to the Company all notes, books, electronic data
(regardless of storage media), correspondence and other written or
graphical records (including all copies thereof) in
Employee’s possession or under Employee’s control
relating to any business, work, the Clients or any other aspect of
the Company, whether or not they contain any Secrets, including but
not limited to each original and all copies of all or any part
thereof.
10.
Cooperation
. Employee agrees to cooperate
in good faith with the Company in connection with any defense,
prosecution, or investigation by the Company regarding any actual
or potential litigation, administrative proceeding, or other such
procedures, in which the Company may be involved as a party or
non-party from time to time, including following the termination of
employment.
11.
Remedies; Injunctive
Relief . In the
event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, Employee agrees that the Company, in
addition to and not in limitation of any other rights, remedies, or
damages available to the Company at law or in equity, shall be
entitled to a preliminary and a permanent injunction in order to
prevent or restrain any such breach by Employee or by
Employee’s partners, agents, representatives, servants,
employers, employees, and/or any and all persons directly or
indirectly acting for or with Employee, without necessity of
posting bond or other security.
12.
Termination of
Employment .
12.1
The Employment may be terminated by
the Company with “Cause” (as defined below) at any time
upon written notice. Except as otherwise agreed in writing or as
otherwise provided by this Agreement as due and payable (or as
required by law), upon termination of the Employment by the Company
with Cause, the Company shall have no further obligation to
Employee under this Agreement by way of compensation or otherwise,
but Employee’s obligations under Sections 6 through 10,
inclusive, shall continue after said termination of
Employment.
12.2
Absent a Change of Control (as
defined below), the Employment may be terminated at any time (i) by
the Company without Cause (as defined below) by giving Employee
thirty (30) days’ advance written notice of such termination
or (ii) by Employee for Good Reason (as defined below) by giving
the Company thirty (30) days’ advance written notice of such
termination. In the event that the Company terminates the
Employment without Cause or Employee terminates the Employment for
Good Reason, the Company shall (i) pay to Employee, in accordance
with the Compa
