Exhibit 10.65
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
17th day of April, 2000, by and between VERTEX INTERACTIVE, INC., a New Jersey
corporation (the "Employer") and Xxxxxxx X. Xxxxx an individual residing at , 0
Xxxxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx, 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, WHEREFORE, 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 financial management and other
duties as Chief Financial Officer of the Employer as reasonably
requested from time to time by the Board of Directors of Employer (the
"Board of Directors"), and/or the Joint Chief Executive Officers,
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.
Employee shall report directly to Xxxxxxxx Xxxx and Xxxx Xxxxxxxx.
3. Term: The employment of Employee shall commence on March 6, 2000, and
shall continue, unless earlier terminated pursuant to Section 7 below,
until March 5, 2005 (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
salary of One Hundred Fifty Thousand ($150,000.00) Dollars
subject to review on an annual basis. (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 receive such 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 4 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 125,000 shares of
common stock under the Company's Incentive Stock Option Plan
at an exercise price of $6 per common share. Options to
purchase 25,000 shares shall vest and be exercisable upon
signing of this Agreement. The remaining 100,000 options shall
vest 20,000 for each year of employment for a period of 5
years commencing April 17, 2001. In the event however this
Agreement is terminated pursuant to Section 7(b) of this
Agreement, options to purchase 25,000 shares shall vest on
September 5, 2000, and the remaining options shall be
cancelled. In the event this Agreement is terminated for any
other reason, all unvested shares shall be cancelled.
(f) Bonus: Employee shall be entitled to a bonus of up to $100,000
per annum based upon Employee's performance and mutually
agreed upon performance targets of Employer's business as a
whole.
In the event control of the Company changes, whether by consolidation,
merger, reclassification of Common Stock, or sale or transfer of stock, and
Employee is terminated without cause, as a result, then, in such event, a sum
equal to the greater of 1) Employee's base salary through the remaining term of
this Agreement as if this Agreement had remained in effect for its stated term
or 2) Employee's base salary for a twelve month period, shall immediately be
paid to Employee. In the event of a change of control, any annual bonus to which
Employee is entitled shall be prorated through the termination date.
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%, so long
as Employee and Affiliates combined do not purchase or hold an
aggregate equity interest of more than 5%, 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: In order
to protect Employer against the unauthorized use or the
disclosure of any Trade Secrets of Employer presently known or
hereinafter obtained by Employee during the term of this
Agreement, Employee agrees that, for any reason whatsoever,
neither Employee, nor any Affiliate, shall induce or attempt
to influence any employee of Employer to terminate his/her
employment, or to hire any such employee whether or not so
induced or influenced, except that any such employee may be
hired with Employer's prior written consent or after one (1)
year subsequent to the end of Employee's employment with
Employer.
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. Similarly, Employer shall, during the
term of this Agreement, refrain from making disparaging, negative or
other similar remarks concerning Employee to any third party, except to
the extent that Employer 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 the provision 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) the expiration of the Term as set forth in Section 3 above;
(b) At the option of either Employer or Employee, termination
shall occur on September 5, 2000, provided at least 21 days
written notice
is provided to the other party of either Employer's or
Employee's election to terminate this Agreement.
(c) The death of Employee;
(d) the "disability" (as hereinafter defined) of Employee;
(e) written notice to Employee from Employer of termination for
"just cause" (as hereinafter defined).
For purposes of Section 7(d) 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(e) 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. In the
event of the termination of Employee's employment for any reason set
forth in Section 7(d)), Employee shall be entitled to the full
compensation set forth in this Agreement as if Employee had worked the
full term of 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. Employer and Employee hereby agree that
notwithstanding any other provision of this Agreement, Employee shall
have all rights to products or information, or applications of such
information, which do not relate to Employer's business and which were
developed during his non-employment hours and without utilizing any
resources of Employer.
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.
00 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxx Xxxx, President
If to Employee: Xxxxxxx X. Xxxxx
0 Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Notices delivered personally shall be deemed communicated as of actual
receipt or receipt of facsimile, mailed notices shall be deemed
communicated as of three (3) 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 sums owed, or to
be owed, to Employee pursuant to Section 4 above, then such sums, as
they become 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/ Xxxxxxx X. Xxxxx
XXXXXXXX X.X. XXXX XXXXXXX X. XXXXX
JOINT CHIEF EXECUTIVE OFFICER
