Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the 12th
day of January 20045 by and between VERTEX INTERACTIVE, INC., a New Jersey
corporation (the "Employer") and Xxxx X. Xxxxxxx, residing at 0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employer desires to obtain the services of the Employee, and
the Employee desires to be employed by the Employer upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment: Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions hereinafter set
forth.
2. Duties: Employee shall perform such duties as Vice President General
Manager- Sales, Cape Group, which shall include 1) managing the smooth
integration of Cape Systems and Consulting Services Ltd, and Cape Systems, Inc.
(together the "Cape Group") into the businesses of Employer and Employer's
subsidiaries 2) providing general management and leadership of the Cape Group in
London, England and Dallas Texas 3) providing management of Cape Group sales and
4) providing other duties as reasonably requested from time to time by the Board
of Directors of Employer (the "Board of Directors"), and/or the Executive
Officers of Employer, provided, however, that all duties assigned to Employee
hereunder shall be commensurate with the skill and experience of Employee.
Employee agrees to devote 100% of his professional time, attention, skills,
benefits and best efforts to the performance of his duties hereunder and to the
promotion of the business and interests of Employer.
3. Term: The employment of Employee shall commence on January 12, 2005 and
shall continue, unless earlier terminated pursuant to Section 7 below (the
"Term").
4. Compensation: As compensation for his services rendered under this
Agreement, Employee shall be entitled to receive the following:
(a) Salary: During the Term, Employee shall be paid an annual base
salary of One Hundred Ten Thousand ($110,000.00) Dollars payable in
twenty four (24) equal installments each year. (the "base salary").
(b) Expenses: Employer shall reimburse Employee for all reasonable and
necessary out-of-pocket travel and other expenses incurred by
Employee in rendering services required under the terms of this
Agreement, promptly, and in no event more than thirty (30) business
days after submission, on a monthly basis, of a detailed statement
of such expenses and reasonable documentation.
(c) Benefits: During the Term, Employee shall continue to receive the
same benefits which Cape Systems, Inc. provided to Employee prior to
Employer's acquisition of the Cape Group and such additional group
benefits as Employer may provide to its other employees at
comparable salaries and responsibilities to those of Employee.
(d) Vacation: Employee shall be entitled to four weeks (20 business
days) paid vacation for each year of this Agreement.
(e) Stock Options: (i) Employer grants Employee the right, privilege and
option to purchase up to 1,000,000 shares of Employer's common stock
under Employer's Stock Incentive Plan, subject to approval of the
grant of said options by Employer's Board of Directors, at an
exercise price determined at the close of business on the date of
Board of Director approval in accordance with the Plan. Two hundred
thousand (200,000) options shall vest immediately upon Board of
Director approval. The remaining eight hundred thousand (800,000)
shall vest 160,000 for each year of employment for a period of 5
years commencing January 12, 2006.
(f) Bonus: Employee shall be entitled to a bonus per annum equal to 25%
of the "Income from Operations" of the Cape Group, as that phrase or
substantially similar language is defined in the fiscal year Profit
and Loss Statement of Employer, utilizing Generally Accepted
Accounting Principles.
In the event of termination pursuant to Section 7 herein, other than
for just cause, Employee shall be entitled to such Compensation [as defined in
Section 4(a) through 4(f)] as is accrued through the date of termination plus
three (3) months base salary. Additionally, in such event, all of Employee's
options granted pursuant to this Agreement shall be deemed fully vested and
exercisable subject to the terms of Employer's Stock Incentive Plan. The
compensation set forth in this Section 4 will be the sole compensation payable
to Employee and no additional compensation or fee will be payable by Employer to
Employee by reason of any benefit gained by the Employer directly or indirectly
through Employee's efforts on Employer's behalf, nor shall Employer be liable in
any way for any additional compensation or fee unless Employer shall have
expressly agreed thereto in writing.
5. Confidentiality ; Covenants Not To Compete:
(a) Acknowledgement of Proprietary Interest: Employee recognizes the
proprietary interest of Employer in any Trade Secrets (as
hereinafter defined) of Employer. Employee acknowledges and agrees
that any and all Trade Secrets of Employer, learned by Employee
during the course of his employment by Employer or otherwise,
whether developed by Employee alone or in conjunction with others or
otherwise, shall be and is the property of Employer. Employee
further acknowledges and understands that his disclosure of any
Trade Secrets of Employer will result in irreparable injury and
damage to Employer. As used herein, "Trade Secrets" means all
non-public confidential and proprietary information of Employer,
including, without limitation, information derived from reports,
investigations, experiments, research, work in progress, drawings,
designs, plans, proposals, codes, software, source codes, databases,
marketing and sales programs, client lists, vendor lists, client
mailing lists, financial projections, cost summaries, pricing
formula, and all other materials, or information prepared or
performed for or by Employer. "Trade Secrets" also includes
confidential information related to the business, products or sales
of Employer or Employer's customers.
(b) Covenants Not to Divulge Trade Secrets: Employee acknowledges and
agrees that Employer is entitled to prevent the disclosure of Trade
Secrets of Employer. As a portion of the consideration for the
employment of Employee and for the compensation being paid to
Employee by Employer, Employee agrees at all times during the term
of this Agreement and for five (5) years thereafter to hold in
strictest confidence and not to disclose or allow to be disclosed to
any person, firm, or corporation, other than to persons engaged by
Employer to further the business of Employer, Trade Secrets of
Employer, without the prior written consent of Employer, including
Trade Secrets developed by Employee. Notwithstanding the foregoing,
Employee shall not be obligated to keep secret and not to disclose
or allow to be disclosed knowledge or information (a) which has
become generally known to the public through no wrongful act of
Employee; (b) which has been rightfully received by Employee from a
third party which to Employee's knowledge was received without
restriction on disclosure and not in violation of any
confidentiality obligation of said third party; (c) which has been
approved for release without restriction as to use or disclosure by
written authorization of Employer; or (d) which has been disclosed
pursuant to a requirement of a governmental agency or of law without
similar restrictions or other protections against public disclosure,
or which disclosure is required by operation of law. Without
limiting the generality of the foregoing, Employee agrees to
affirmatively take such precautions as Employer may reasonably
request or Employee reasonably believes are appropriate to prevent
the disclosure, copying or use of any of the computer software
programs, data bases or other such information now existing or
hereafter developed to any person or for any purpose not
specifically authorized by Employer.
(c) Return of Materials at Termination: In the event of any termination
of this Agreement for any reason whatsoever, Employee will promptly
deliver to Employer all documents, data and other information
pertaining to Trade Secrets. Employee shall not take any documents
or other information, or any reproduction or excerpt thereof,
containing or pertaining to any Trade Secrets.
(d) Competition During the Term of this Agreement: Employee agrees that
during the term of this Agreement, neither he, nor any company
controlled by Employee (an "Affiliate"), will directly or indirectly
compete with Employer in any way, and that he will not act as an
officer, director, employee, consultant, shareholder, lender or
agent of any entity which is engaged in any business of the same
nature as, or in competition with, the business in which Employer is
now engaged or other related business in which Employer becomes
engaged during the term of this Agreement; provided, however, that
this Section 5(d) shall not prohibit Employee or any Affiliate from
purchasing or holding an aggregate equity interest of up to 1% in
any business in competition with Employer. Furthermore, Employee
agrees that during the term of this Agreement, he will undertake no
planning for the organization of any business activity competitive
with the work he performs as an employee of Employer and Employee
will not combine or conspire with any employees of Employer for the
purpose of organization of any such competitive business activity.
(e) Competition Following Termination of this Agreement: Employee
undertakes that for a period terminating on the later of i) two
years from the date of termination of Employee's employment with
Employer or ii) three years from the date of Closing of the Stock
Purchase transaction between Employer, the Cape Group, Employee and
Xxxxxxx X. Xxxxx, without the prior written consent of Purchaser,
directly or indirectly, whether alone or in conjunction with, or on
behalf of any other business, concern or person and whether as a
principal, shareholder, director, employee, agent, consultant,
partner or otherwise:
(i) canvass, solicit, or approach or cause to be canvassed,
solicited or approached, any person or entity who was a customer of Employer or
the Cape Group for the supply of goods and/or services which are competitive
with those supplied by Employer or the Cape Group;
(ii) deal or contract with any person or entity who was a customer
or proposed customer of Employer or the Cape Group for the purpose of supplying
goods and/or services which are competitive with those supplied by Employer or
the Cape Group; (ii) solicit or entice away any supplier to Employer or the Cape
Group who has supplied goods and/or services to Employer or the Cape Group, if
such solicitation or enticement causes or could reasonably be expected to cause
such supplier to cease supplying, reduce its supply of, or alter the terms upon
which it is supplying those goods and/or services to Employer or the Cape Group;
(iii) if terminated by Employer for other than just cause, work for
or be engaged, concerned, or (save as the holder of shares or other securities
in any Companies which is quoted, listed or otherwise dealt with on a recognized
stock exchange or other securities market and which confers not more than 5% of
the votes which could be cast at a general meeting of the Companies concerned)
have an interest in any trade or business which competes with any trade or
business carried on, or proposed to be carried on, by Employer or the Cape Group
as of the date of this Agreement;
(iv) solicit or entice away from Employer or the Cape Group any
employee of the Employer or the Cape Group employed in a senior or key
managerial, supervisory, technical, sales, marketing or administrative post; or
(v) use in connection with any trade or business any name which
includes the name of Employer or the Cape Group or any colorable imitation of
them; or
(vi) attempt to knowingly assist or procure any other person to do
any of the foregoing things.
Employer and Employee agree that each of the undertakings set
out in each of the preceding sections are separate and
severable and enforceable accordingly, and if any one or more
of such undertakings or part of an undertaking is held to be
against the public interest or unlawful or in any way an
unreasonable restraint on trade, the remaining undertakings or
remaining part of the undertaking shall continue in full force
and effect and shall bind Employee.
6. Prohibition of Disparaging Remarks: Employee shall, during the terms of
this Agreement, refrain from making disparaging, negative or other similar
remarks concerning Employer, any of its subsidiaries or other affiliated
companies, to any third party that causes substantial harm to Employer, except
to the extent that Employee is required to make such remarks (a) by applicable
law or regulation or judicial or regulatory process, or (b) in or in connection
with any pending or threatened litigation relating to this Agreement or any
transaction contemplated hereby or thereby. In view of the difficulty of
determining the amount of damages that may result to the parties hereto from the
breach of this Section 6, it is the intent of the parties hereto that, in
addition to monetary damages, any non-breaching party shall have the right to
prevent any such breach in equity or otherwise, including, without limitation,
prevent by means of injunctive relief
7. Termination: This Agreement and the employment relationship created
hereby shall terminate upon the occurrence of any of the following events:
(a) thirty days written notice from Employer to Employee;
(b) The death of Employee;
(c) the "disability" (as hereinafter defined) of Employee;
(d) written notice to Employee from Employer of termination for
"just cause" (as hereinafter defined).
For purposes of Section 7(c) above, the "disability" of Employee shall
mean his inability because of mental or physical illness or capacity, to perform
his duties under this Agreement for a continuous period of 120 days or for 120
days out of any 150-day period. For purposes of Section 7(d) above, "just cause"
shall mean (a) the failure of Employee to diligently or effectively perform his
duties under this Agreement, (b) the commission by Employee of any act involving
moral turpitude or the commission by Employee of any act or the suffering by
Employee of any occurrence or state of facts which renders Employee incapable of
performing his duties under this Agreement, or adversely affects or could
reasonably be expected to adversely affect Employer's business reputation, or
(c) the violation by Employee of material instructions or material policies
established by Employer with respect to the operation of its business and
affairs or Employee's failure, in a material respect, to carry out the
reasonable instructions of the Board of Directors of Employer.
Notwithstanding anything to the contrary in this Agreement, the provisions
of Sections 5 and 6 shall survive any termination, for whatever reason, of
Employee's employment under this Agreement.
8. Remedies: Each party recognizes and acknowledges that in the event of
any default in, or breach of any of, the terms, conditions and provisions of
this Agreement (either actual or threatened) by the other party, then the
non-defaulting party's remedies at law shall be inadequate. Accordingly, each
party agrees that in such event, the non-defaulting party shall have the right
of specific performance and/or injunctive relief in addition to any and all
other remedies and rights at law or in equity, and such rights and remedies
shall be cumulative.
9. Acknowledgments: Employee acknowledges and recognizes that the
enforcement of any of the non-competition provisions set forth in Section 5
above by Employer will not interfere with Employee's ability to pursue a proper
livelihood. Employee further represents that he is capable of pursuing a career
in other industries to earn a proper livelihood. Employee recognizes and agrees
that the enforcement of this Agreement is necessary to ensure the preservation
and continuity of the business and good will of Employer. Employee agrees that
due to the nature of Employer's business, the non-competition restrictions set
forth in this Agreement are reasonable as to time and geographic area. Employee
acknowledges that the term "Employer" as used in Sections 5 and 6 to this
Agreement shall be defined to include Vertex Interactive, Inc. and its
subsidiaries.
10. Notices: Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
shall be deemed to have been duly given in writing personally delivered, by
facsimile or sent by mail, registered or certified, postage prepaid with return
receipt requested, as follows:
If to Employer: VERTEX INTERACTIVE, INC.
0000 Xxxxxxx Xxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxxx X.X. Xxxx
Chief Executive Officer
If to Employee: Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx 00000
Notices delivered personally shall be deemed communicated as of actual
receipt or receipt of facsimile. Mailed notices shall be deemed communicated as
of five (5) days after mailing.
11. Entire Agreement: This Agreement contains the entire agreement of the
parties hereto and supersedes all prior agreements and understandings, oral or
written, between the parties hereto. No modification or amendment of any of the
terms, conditions or provisions herein may be made otherwise than by written
agreement signed by the parties hereto.
12. Governing Law and Forum: This Agreement and the rights and obligations
of the parties hereto shall be governed, construed and enforced in accordance
with the laws of the State of New Jersey and the parties agree to the courts of
the State of New Jersey having exclusive jurisdiction over any dispute arising
out of or relating to this Agreement.
13. Parties Bound: This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of Employer and Employee and
their respective heirs, personal representatives, successors and assigns.
Employer shall have the right to assign this Agreement to its successors,
provided that such successors agree to be bound by the terms hereof. The term
"successors" shall include any person, corporation, partnership or other entity
that buys all or substantially all of Employer's assets or all of its stock, or
with which Employer merges or consolidates. The rights, duties or benefits to
Employee hereunder are personal to him, and no such right or benefit may be
assigned by him. It is specifically agreed that this Agreement shall survive any
change in capitalization, organization or control of Employer.
14. Estate: If Employee dies prior to the payment of all compensation
owed, or to be owed, to Employee pursuant to Section 4 above, whether pro-rata
or otherwise, then such compensation, as it becomes due, shall be paid to
Employee's estate.
15. Enforceability: If, for any reason, any provision contained in this
Agreement should be held invalid in part by a court of competent jurisdiction,
then it is the intent of each of the parties hereto that the balance of this
Agreement be enforced to the fullest extent permitted by applicable law. It is
the intent of each of the parties that the covenants not-to-compete contained in
Section 5 above be enforced to the fullest extent permitted by applicable law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any covenant is too broad to be enforced as written, it is the intent of each
of the parties that the court should reform such covenant to such narrower scope
as it determines enforceable.
16. Waiver of Breach: The waiver by any party hereto of a breach of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by any party.
17. Captions: The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
18. Other Obligations: For purposes of Section 5 above, and elsewhere
herein where appropriate, the term "Employer" shall also mean affiliates,
including subsidiaries, of Employer.
19. Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, but only one of which need be provided.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EMPLOYER: EMPLOYEE:
VERTEX INTERACTIVE, INC.
/s/ XXXXXXXX X. X. XXXX /s/ XXXX X. XXXXXXX
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XXXXXXXX X.X. XXXX XXXX X. XXXXXXX
CHIEF EXECUTIVE OFFICER
