AGREEMENT
THIS AGREEMENT dated as of June 2, 1997 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 desires to terminate all existing agreements and
understandings with Xxxxxxx, and in lieu thereof, to enter into this Agreement
providing, among other things, for his services as Chairman of the Board, and
WHEREAS, Xxxxxxx is willing to enter into this Agreement upon the terms and
conditions hereinafter set forth.
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. Xxxxxxx shall serve as Chairman of the Board of Directors at the
pleasure of the Board of Directors or until his successor shall have been
duly elected or until he shall have been removed with or without cause by a
vote of a majority of the entire Board of Directors then in office at a
meeting called for that purpose whenever in its judgment the best interests
of the Company will be served thereby (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 $75,000.
The fee shall be payable biweekly.
4. Options.
a. As additional compensation for services to be rendered as
Chairman of the Board, PSC, pursuant to the Company's 1994
Stock Option Plan, hereby grants Xxxxxxx a stock option for
35,000 Common Shares of the Company at an exercise price of
$6.50 per share, the fair market value of the Company's Common
Shares on the date hereof, upon the terms and conditions set
forth in the Option Agreement attached hereto as Exhibit A.
b. As compensation in full for significant past services rendered
to the Company as a consultant in the integration of the
Company and Spectra-Physics Scanning Systems, Inc., PSC,
pursuant to the Company's 1994 Stock Option Plan, hereby
grants to Xxxxxxx a stock option for 50,000 Common Shares of
the Company at an exercise price of $6.50 per share, the fair
market value of the Company's Common Shares on the date
hereof, upon the terms and conditions set forth in the Option
Agreement attached hereto as Exhibit B.
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: ------------------------------
Xxxxxx X. Xxxxxxxxxx
President & Chief Executive Officer
---------------------------------
Xxxxxx X. Xxxxxxx
