AGREEMENT
THIS AGREEMENT dated as of June 2, 1998 by and between PSC Inc., a New
York corporation ("PSC" or the "Company") and XXXXXX X. XXXXXXX ("Xxxxxxx").
WHEREAS, Xxxxxxx was elected Chairman of the Board of Directors of PSC
on April 30, 1997, and WHEREAS, the Company and Xxxxxxx entered into an
Agreement dated as of June 2, 1997 (the "1997
Agreement"), and
WHEREAS, the parties desire to amend the 1997 Agreement in certain
respects and to restate in its entirety said 1997 Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Services. Xxxxxxx shall perform such duties and exercise such powers
as are customarily associated with the position of Chairman of a Board of
Directors, including but not limited to, presiding at all meetings of the Board
of Directors, selecting and chartering Board committees, establishing Board
agendas, and monitoring and reviewing the performance of the President and Chief
Executive Officer. In addition, he shall perform such other duties as the Board
may from time to time direct, including but not limited to, services in such
areas as strategic planning, corporate development, mergers and acquisitions,
and development of overseas markets. During the Term, in good faith, Xxxxxxx
shall exert all reasonable efforts to promote the interests of the Company and
shall devote such time, attention and energies to the performance of his
responsibilities and duties hereunder and at such locations as may reasonably be
deemed necessary or appropriate by the parties. During the Term, Xxxxxxx may
have other business investments and participate in other unrelated and
non-competitive business ventures, but these shall not interfere or be
inconsistent with his duties hereunder. Xxxxxxx may perform his services at such
times, at such locations and by such means (i.e., in person, by phone, by fax or
other electronic devices) as shall be reasonably appropriate and mutually
agreeable.
2. Term. The term of service under this Agreement shall commence as of
the date of this Agreement and shall terminate on December 31, 2000 or on such
earlier date as Xxxxxxx may no longer be a member of the Board of Directors (the
"Term").
3. Compensation. For all services to be rendered to the Company by
Xxxxxxx in any capacity, PSC shall pay to Xxxxxxx a fee at the annual rate of
$85,000. The fee shall be payable biweekly.
4. Restricted Stock. Pursuant to the Company's 1994 Stock Option Plan,
on March 25, 1998 PSC awarded Xxxxxxx 17,500 restricted Common Shares of the
Company, upon the terms and conditions and subject to the restrictions set forth
in the Restricted Stock Award Agreement attached hereto as Exhibit A. If Xxxxxxx
is then Chairman of the Board of Directors of the Company, on each of March 25,
1999 and March 25, 2000, PSC will award Xxxxxxx 17,500 restricted Common Shares
pursuant to a Restricted Stock Award Agreement similar in form to Exhibit A, as
modified to reflect changes in dates and stock prices.
5. Confidential Information. Xxxxxxx agrees that during the Term and
for five years thereafter, he will not, except as required by the performance of
his duties under this Agreement, disclose or authorize anyone else to disclose
or use or make known for his or another's benefit, any confidential information,
knowledge or data of the Company, whether or not patentable or copyrightable, in
any way acquired by him from the inception of his original relationship with the
Company in any capacity through the expiration of the Term (herein "Confidential
Information"). Confidential Information, for purposes of this Agreement, shall
include, but not be limited to, matters not readily available to the public
which are:
a. of a technical nature, such as, but not limited to, methods, know-how,
formulae, compositions, drawings, blueprints, compounds, processes,
discoveries, machines, inventions, computer programs and similar items:
b. of a business nature, such as, but not limited to, information about sales
or lists of customers, prices, costs, purchasing, profits, markets,
strengths and weaknesses of products, business processes, business and
marketing plans and activities and employee personnel records;
c. pertaining to future developments, such as, but not limited to, research
and development, future marketing or merchandising plans or ideas.
Immediately upon termination of Xxxxxxx'x services, Xxxxxxx shall
deliver to the Company all originals and copies of everything in his possession
or under his control which embodies or contains Confidential Information,
including, without limitation, all documents, correspondence, specifications,
blueprints, notebooks, reports, sketches, formulae, computer programs, computer
discs, sales and other materials, price lists, customer lists or information,
samples, and all other materials.
Confidential Information shall not include information which (i) is
published or otherwise becomes generally available to the public other than by a
breach of confidentiality, or (ii) Xxxxxxx can show by documentation was
properly in his possession prior to the commencement of his original
relationship with the Company, or (iii) becomes available to Xxxxxxx from an
independent source without breach of his Agreement or violation of law, or (iv)
is independently developed by Xxxxxxx without the use of the Company's
Confidential Information.
6. Covenant Not to Compete.
a. In light of the special and unique services that have been and will be
furnished to the Company by Xxxxxxx and the Confidential Information that
has been and will be disclosed to him during his relationship with the
Company, Xxxxxxx agrees that during the Term, and for a period of eighteen
(18) months thereafter, he will not, without the written consent of the
Company, directly or indirectly, whether as principal, agent, officer,
director, consultant, employee, partner, stockholder or owner of or in any
capacity with any corporation, partnership, business, firm, individual
company or any entity located any where in the world engage in, or assist
another to engage in, any work or activity in any way competitive with the
Business of the Company (as hereinafter defined). However, nothing herein
shall prevent Xxxxxxx from owning not more than five percent (5%) of the
outstanding publicly traded shares of common stock of a corporation, as to
which corporation Xxxxxxx has no relationship other than as a shareholder.
Xxxxxxx specifically agrees that because of his special expertise and the
special and unique services that he will be furnishing the Company, and
because of the Confidential Information that has been acquired by him or
that will be disclosed to him during the Term, the above stated geographic
areas and time period, in and during which he will not compete with the
Company, are reasonable in scope and duration and are necessary to afford
the Company just and adequate protection against the irreparable damage
which would result to the Company from any activities prohibited by this
Section.
b. If Xxxxxxx in any way breaches the obligations specified in this Section,
the Company shall have the right, in addition to any other remedies
available to it, to terminate the further payment of any amounts due under
Section 3 hereof.
c. If any provision hereof is found to be unreasonably broad, it shall
nevertheless be enforceable to the extent reasonably necessary for the
protection of the Company and to carry out to the fullest extent the
parties' mutual intent in entering into this Agreement, which intent is
that the provisions of this Section will be strictly enforced as agreed to.
d. For purposes of this Agreement, the "Business of the Company" is the
development, manufacturing and marketing of technologies, products and
services for the automatic identification and keyless data entry industry,
and includes, but is not limited to, products, services, applications,
systems and technologies relating to bar coded data, magnetic stripe
encoded data, radio frequency communications of bar coded or related data,
optical character recognition, machine vision as applied to the recognition
of bar coded data, electronic interchange of bar coded or related data, and
custom xxxx-relay switching systems. The Business of the Company shall also
include any business in which the Company is actually engaged or as to
which it is doing research and development during Xxxxxxx'x services with
the Company.
7. Injunctive Relief. Xxxxxxx agrees that in the event of a breach or
threatened breach by Xxxxxxx of any of the provisions of Sections 5 or 6 hereof,
the Company shall be entitled to an injunction restraining Xxxxxxx from such
breach or threatened breach without posting any bond or other security. Nothing
herein, however, shall be construed as prohibiting the Company from pursuing, in
conjunction with an injunction or otherwise, any other remedies available to the
Company for such breach or threatened breach, including the recovery of damages
from Xxxxxxx.
8. Notices. All notice given in connection with this Agreement shall be
in writing and shall be delivered either by personal delivery, by telegram,
telex, telecopy or similar facsimile means, by certified or registered mail,
return receipt requested, or by express courier to the parties hereto at the
following addresses:
To Xxxxxxx: To PSC:
Xxxxxx X. Xxxxxxx PSC Inc.
X.X. Xxx 0000 000 Xxxxxx Xxxx
Xxxxx 00000 Xxxxxxx, XX 00000
Israel Attn: Chief Executive Officer
Fax: 000-000-000-0000 Fax: 000-000-0000
or at such other address and number as either party shall have previously
designated by written notice given to the other party in the manner hereinabove
set forth. Notice shall be deemed given when received, if sent by telegram,
telex, telecopy or similar facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent by
telex, telecopy or other facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if
hand-delivered, sent by express courier or delivery service, or sent by
certified or registered mail, return receipt requested.
9. Waiver. Any waiver of a breach of any of the terms of this Agreement
shall not operate as a waiver of any other breach of such terms or of any other
terms, nor shall failure to enforce any term hereof operate as a waiver of any
such term or of any other term.
10. Severability. If any term of this Agreement or the application
thereof is held invalid or unenforceable, the validity or unenforceability shall
not affect any other terms of this Agreement which can be given effect without
the invalid or unenforceable term.
11. Governing Law: Venue. This Agreement shall be construed and
enforced in accordance with and governed by the internal laws of the State of
New York, without reference to conflict of law principles or the domicile or
residence of any individual party if other than New York. The parties hereby
submit and consent to the exclusive personal jurisdiction of the Supreme Court
of New York, Monroe County or of the United States District Court for the
Western District of New York for any legal action instituted by any party
against any other with respect to the subject matter hereof and process in such
action shall be effectively served if served in accordance with Section 8
hereof.
12. Prior Agreement. This Agreement supersedes all previous agreements
and understandings relating to the subject matter herein.
13. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended or changed except by a writing signed by both parties.
IN WITNESS WHEREOF, Xxxxxxx has executed this Agreement and the Company
has caused this Agreement to be executed as of the date set forth above.
PSC INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
President and Chief Executive Officer
Xxxxxx X. Xxxxxxx
