CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of April 1, l999 by and between ROBOCOM
SYSTEMS INTERNATIONAL INC., a New York corporation (the "Company"), and XXXXX
XXXXXXX, an individual residing at 00 Xxxxxxxxx Xxxx., Xxxxxxxx, Xxx Xxxx 00000
("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant has previously served as President and Chief Executive
Officer of the Company and is currently Chairman of the Board of Directors of
the Company; and
WHEREAS, the Company desires to obtain the consulting services of
Consultant for a three-year period of time on the terms and conditions
hereinafter stated, and Consultant is willing to furnish his consulting services
on such terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereto agree as follows:
Section 1. Consultancy.
(a) The Company hereby engages Consultant to perform consulting
services and Consultant hereby accepts such engagement on the terms provided
herein. Consultant agrees that he will use his skills and abilities faithfully
to promote the interests of the Company and to provide management of the Company
such consulting services on an as needed basis as requested by the Company
subject to the reasonable availability of Consultant as determined by the
Consultant in his sole discretion. Such consulting services may, from time to
time, be rendered by telephone and shall be performed in such manner and at such
times as shall be convenient to Consultant in light of Consultant's other
commitments and activities. Notwithstanding the foregoing, it is expressly
understood and agreed that nothing herein shall constitute Consultant an
employee or agent of the Company, except to the extent as might hereafter be
agreed upon for a particular purpose, and that without the prior written consent
of the Board of Directors or the President of the Company, Consultant shall not
have the authority to obligate or commit the Company nor shall Consultant enter
into any negotiations, contract or agreement with any third party which shall in
any way bind, obligate or commit the Company.
(b) It is understood and agreed that Consultant shall not be
required to provide any specified number of hours or days of service to the
Company and the amount and timing of services Consultant provides, if any, is
subject to Consultant's sole discretion.
Section 2. Term. The term of Consultant's engagement hereunder shall be
three (3) -years commencing on the date hereof and ending on March 1, 2002 (the
"Term").
Section 3. Compensation. For the agreements contained herein and for all
services to be rendered by Consultant under this Agreement, the Company shall
pay Consultant a consultancy fee at the annual rate of $12,000, payable
semi-monthly. In addition to the above, the Company shall pay Consultant a per
diem payment of $1,000 for each day the Consultant performs services for the
Company at the request of the Company.
Section 4. Reimbursement of Expenses. In addition to the fees payable
under Section 3, the Company shall reimburse Consultant for all of his expenses
incurred in connection with services rendered hereunder including, without
limitation, expenses for travel, meals, entertainment and other miscellaneous
business expenses. Consultant shall submit to the Company written, itemized
expense accounts.
Section 5. Benefits.
(a) The Company agrees that for the term of this Agreement,
Consultant shall be entitled to receive all perquisites he was entitled to
receive as a full-time employee of the Company in his capacity as President and
Chief Executive Officer.
(b) Consultant is entitled to participate in any retirement plan
maintained by the Company for its employees (including, without limitation,
pension, annuity, profit-sharing and deferred compensation plans), on the terms
enjoyed by him as a full-time employee of the Company in his capacity as
President and Chief Executive Officer.
(c) The Company will provide Consultant with the use of a full-size
automobile comparable to the automobile the Company provides for Consultant as
of the date hereof at no expense to Consultant, and to pay all costs
attributable to that automobile, including leasing fees and the costs of repair,
servicing, insurance, fuel and oil.
(d) The Company will provide supplemental medical insurance at the
maximum available plan approved by the State of New York.
Section 6. Noncompetition.
(a) Consultant expressly covenants and agrees that Consultant will
not, during the Term and for a period of one (1) year thereafter, directly or
indirectly, as owner, partner, joint venturer, stockholder, employee, broker,
agent, principal, trustee, corporate officer or director, licensor or in any
capacity whatsoever engage in, become financially interested in, be employed by,
render consulting services to, or have any connection with, any business engaged
in the design, development, marketing, installation or support of warehouse
management systems or other computer integrated or turnkey systems or any
business which provides products or services which are directly competitive with
the Company's products or services as they exist on the date of this Agreement
in the United States; provided, however, that Consultant may own any securities
of any corporation which is engaged in such business and is publicly owned and
traded but in an amount not to exceed at any one time three percent (3%) of any
class of stock or securities of such company.
(b) If any portion of the restrictions set forth in paragraph (a)
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
(c) Consultant declares that the foregoing time limitations are
reasonable and properly required for the adequate protection of the business of
the Company. In the event any such territorial or time limitation is deemed to
be unreasonable by a court of competent jurisdiction, Consultant agrees to the
reduction of either said territorial or time limitation to such area or period
which said court shall have deemed reasonable.
(d) The existence of any claim or cause of action by Consultant
against the Company or any subsidiary of the Company other than under this
Agreement shall not constitute a defense to the enforcement by the Company or
any such subsidiary of the foregoing restrictive covenants, but such claim or
cause of action shall be litigated separately.
(e) Subject to the foregoing, nothing in this Agreement shall
prevent Consultant from accepting any employment or consulting engagements of
any kind or from otherwise accepting any business opportunity.
Section 7. Death of Consultant. In the event of the death of Consultant
during the term of this Agreement, the Company shall pay to Consultant's estate
in lieu of any other amounts due and owing to Consultant pursuant to Section 3a
benefit to be paid within sixty (60) days of the death of Consultant equal the
entire amount payable by the Company pursuant to Section 3 for the remaining
term of this Agreement.
Section 8. Termination
(a) Consultant's consultancy may be terminated for Cause at any time
by the Company effective immediately upon written notice of such termination to
Consultant (which notice shall contain the reason for such termination);
provided that, with respect to (iii) below, written notice of termination shall
be given only after advance written warning by the Company and a ten (10) day
period to cease the event constituting Cause and such Cause continues after the
end of such ten (10) day period. "Cause" for termination of consultancy shall
mean only the occurrence of any of the following events:
(i) Willful misfeasance or nonfeasance of duty by
Consultant; or
(ii) Conviction of a crime of Consultant by a court of
competent jurisdiction, punishable by imprisonment; or
(iii) Consultant's failure to perform consulting services as
reasonably requested in writing by the Company with
respect to material matters or failure of Consultant to
comply with any material term of this Agreement.
(b) In the event the Company terminates Consultant's engagement as
set forth in this Section 8, all compensation hereunder shall terminate, except
for the payment to Consultant of such portion of Consultant's compensation
payable under Section 3 as is accrued and unpaid during the period prior to
termination.
Section 9. Confidentiality. Except as may be required by law, Consultant
will not, during the term of this Agreement, use directly or indirectly, for his
own account or for the account of any person, or disclose to any person, the
Company's proprietary information disclosed or entrusted to him or developed or
generated by him in the performance of his duties hereunder, including but not
limited to information relating to the Company's organizational structure,
operations, business plans, technical projects, pricing data, production costs,
research data or results, inventions, trade secrets, customer lists or other
work product developed by or for the Company whether on the premises of the
Company or elsewhere. The provisions of this Section 9 shall not apply to any
proprietary, confidential or secret information which is, at the commencement of
the term of
this Agreement or at some later date, publicly known under circumstances
involving no breach of this Agreement or is lawfully and in good faith made
available to Consultant without restrictions as to disclosure by a third party.
Section 10. Indemnification. The Company agrees to defend and shall
indemnify and hold Consultant harmless from any and all liability, costs and
expenses which may be assessed against Consultant by reason of the performance
of his responsibilities and duties under the terms of this Agreement.
Section 11. Representations and Warranties of Consultant. Consultant
represents and warrants that the entering into by Consultant of this Agreement
and the performance by Consultant hereunder will not conflict with, violate or
constitute a breach of, or require any consent or approval under, any agreement,
license, arrangement or understanding, whether written or oral, or any law,
judgment, decree, order, rule or regulation to which Consultant is a party or by
which he is bound.
Section 12. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) The Company has all necessary power and authority to execute and
deliver, and to perform all of its obligations under, this Agreement. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms.
(b) The entering into by the Company of this Agreement and the
performance by the Company hereunder will not conflict with, violate or
constitute a breach of, or require any consent or approval under, the terms of
its certificate of incorporation or by-laws, or any agreement, license,
arrangement or understanding, whether written or oral, or any law, judgment,
decree, order, rule or regulation to which the Company is a party or by which it
is bound.
Section 13. Severability. If any provision of this Agreement is invalid
and unenforceable in any jurisdiction, then, to the fullest extent permitted by
law: (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction; and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
Section 14. Entire Agreement. This Agreement contains the entire
understanding and agreement between the Company (and its subsidiaries and
affiliates) and Consultant with respect to the subject matter hereof and cannot
be amended, modified or
supplemented in any respect, except by subsequent written agreement entered into
by both parties.
Section 15. Successors. This Agreement shall inure to the benefit of and
be binding upon the Company, its successors and assigns, including any person,
partnership or corporation which may acquire all or substantially all of the
Company's assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation or transfer. In every respect, this Agreement
shall inure to the benefit of and be binding upon Consultant and his heirs,
executors and personal representatives and, being personal in nature, shall not
be assignable by Consultant.
Section 16. Effect of Waiver. The waiver by either party of a breach of
any provision of this Agreement shall not operate as or be construed as a waiver
of any subsequent breach.
Section 17. Notices. Any notice, request, demand or other communication in
connection with this Agreement must be in writing and shall be deemed to have
been given and received five (5) days after a certified or registered letter
containing such notice, properly addressed with postage prepaid, is deposited in
the United States mail; and if given otherwise than by registered or by
certified mail, it shall not be deemed to have been given until actually
delivered to and received by the party to whom it is addressed.
A. Notice to the Company shall be given at its principal mailing
address, which at the time of execution of this Agreement is 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxx 00000, Attention: Secretary, or at such other address as it
may designate, with a copy to Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.
B. Notice to Consultant shall be given at his home address, which at
the time of execution of this Agreement is 00 Xxxxxxxxx Xxxx., Xxxxxxxx, Xxx
Xxxx 00000, or at such other address as he may designate.
Section 18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 19. Survival. Each of the terms and provisions of this Agreement
which are expressly or impliedly so intended shall survive the termination of
this Agreement.
Section 20. Applicable Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such state.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first stated above.
ROBOCOM SYSTEMS INTERNATIONAL INC.
By: /s/ Xxxxxxxx Xxxxx
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XXXXXXXX XXXXX
Secretary
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
