EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the 6th
day of August, 2002, by and between Progressive Software Holding, Inc., a
Delaware corporation with its principal place of business at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Company"), and Xxxxxxx X.
Xxxxx, an individual with a residence address of 000 Xx. Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000XXXXXXX (the "Executive").
INTRODUCTION
WHEREAS, the Company is in the business of designing, developing, and
marketing high quality, specialized point of sale ("POS"), back office and
enterprise technology for the food service and specialty retail industry (the
"Business"); and
WHEREAS, the Company desires to employ Executive and Executive desires to
accept such employment on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual promises herein
below set forth, the parties hereby agree as follows:
1. Employment Period. The term of this Agreement (the "Employment Period")
shall commence on the date hereof and, subject to earlier termination as
hereinafter provided, shall terminate six (6) months from the date hereof.
2. Employment Duties. Subject to the terms and conditions set forth herein,
the Company hereby employs Executive to act as Vice President and Chief
Financial Officer of the Company during the Employment Period, and Executive
hereby accepts such employment. The duties assigned and authority granted to
Executive shall be as set forth in the By-laws of the Company and as determined
by its Board of Directors and the CEO. Executive agrees to perform his duties
for the Company diligently, competently, and in a good faith manner. The
Executive may also engage in civic and charitable activities to the extent they
are not inconsistent with Executive's duties hereunder.
3. Base Salary. The Company agrees to pay Executive a salary during the
Employment Period of $100,000, payable in equal monthly installments.
4. Other Benefits.
(a) Reimbursement for Insurance Premiums. The Executive shall participate
in the Company's medical insurance program for its employees.
(b) Vacation. Executive shall be entitled to vacation of such duration as
may be determined by the Board of Directors, but not less than that generally
established for other executives of Company and in no event less than three (3)
weeks annually on a pro rata basis, without interruption of salary.
(c) Reimbursement of Expenses. The Company shall reimburse Executive for
all reasonable travel, entertainment, gasoline and other expenses incurred or
paid by the Executive in connection with, or related to, the performance of his
duties or responsibilities under this Agreement, provided that Executive submits
to the Company substantiation of such expenses sufficient to satisfy the record
keeping guidelines promulgated from time to time by the Internal Revenue
Service.
5. Termination by the Company with Cause. The Company may terminate this
Agreement if any of the following events shall occur:
(a) the death or disability of the Executive (for purposes of this
Agreement, "disability" shall mean the Executive's incapacity due to physical or
mental illness which has caused the Executive to be absent from the full-time
performance of his duties with the Company for a period of three (3) consecutive
months).
(b) any action or inaction by the Executive that constitutes larceny,
fraud, gross negligence, a willful or negligent misrepresentation to the
directors or officers of the Company, its successors or assigns, or a crime
involving moral turpitude; or
(c) the refusal of the Executive to follow the reasonable and lawful
written instructions of the Board of Directors of the Company or the CEO, with
respect to the services to be rendered and the manner of rendering such services
by Executive.
The Company may terminate this Agreement pursuant to this Section 5 immediately
upon written notice to the Executive, except for termination due to the death of
the Executive, which shall require no notice.
6. Termination.
(a) Notice/Events.
(i) Termination of the Executive. Executive may terminate this
Agreement at any time by providing a minimum of two (2) weeks of written
notice to the Company.
(ii) Termination by the Company Without Cause. The Company may
terminate this Agreement at any time, without cause by providing written
notice to Executive. As used in this Agreement, the term "without cause"
shall mean termination for any reason not specified in Section 5 hereof,
except for retirement.
(b) No Severance. If this Agreement expires or is terminated by the Company
or the Executive for any reason or no reason, the Executive shall have no rights
to receive severance payments from the Company, and all obligations of the
Company pursuant to Sections 3 and 4 hereof (except for amounts earned but
unpaid under Section 3) shall terminate immediately effective upon the date of
such termination; provided, however, if the Executive's employment is terminated
by the Company without cause, the Executive shall be entitled to receive his
salary for the remainder of the Employment Period.
7. Non-Competition. During the term of this Agreement and for one (1) year
following the expiration or termination of this Agreement, Executive will not
directly or indirectly whether as a partner, consultant, agent, employee,
co-venturer, greater than two percent owner or otherwise or through any other
Person (as hereafter defined): (a) be engaged in any business or activity which
is competitive with the Business of the Company in any part of the world in
which the Company is at the time of the Executive's termination engaged in
selling its products directly or indirectly; or (b) attempt to recruit any
employee of the Company, assist in their hiring by any other person, or
encourage any employee to terminate his or her employment with the Company; or
(c) encourage any customer of the Company to conduct with any other person any
business or activity which such customer conducts or could conduct with the
Company. For purpose of this Section 7, the term "Company" shall include any
person controlling, under common control with or controlled by, the Company, and
the term "Person" shall mean an individual or corporation, association or
partnership in estate or trust or any other entity or organization.
The Executive recognizes and agrees that because a violation by him of this
Section 7 will cause irreparable harm to the Company that could not be
quantified and for which money damages would be inadequate, the Company shall
have the right to injunctive relief to prevent or restrain any such violation,
without the necessity of posting a bond.
Executive expressly agrees that the character, duration and scope of this
covenant not to compete are reasonable in light of the circumstances as they
exist at the date upon which this Agreement has been executed. However, should a
determination nonetheless be made by a court of competent jurisdiction at a
later date that the character, duration or geographical scope of this covenant
not to compete is unreasonable in light of the circumstances as they then exist,
then it is the intention of both Executive and the Company that this covenant
not to compete shall be construed by the court in such a manner as to impose
only those restrictions on the conduct of Executive which are reasonable in
light of the circumstances as they then exist and necessary to provide the
Company to the fullest extent permitted by law the intended benefit of this
covenant not to compete.
8. Confidentiality Covenants. Executive understands that Company may impart
to him confidential business information including, without limitations,
designs, financial information, personnel information, strategic plans, product
development information and the like (collectively "Confidential Information").
Executive hereby acknowledges Company's exclusive ownership of such Confidential
Information.
(a) Executive's Agreements. Executive agrees as follows: (i) to use the
Confidential Information only to provide services to the Company; (ii) to
communicate Confidential Information only to fellow employees, agents and
representatives of the Company on a need-to-know basis; and (iii) not to
otherwise disclose or use any Confidential Information. Upon demand by the
Company or upon termination of Executive's employment, Executive will deliver to
the Company all manuals, photographs, recordings, and any other instrument or
device by which, through which, or on which Confidential Information has been
recorded and/or preserved, which are in the Executive's possession, custody or
control. Executive acknowledges that for purposes of this Section 8 that term
"Company" means any person or entity now or hereafter during the term of this
Agreement which controls, is under common control with, or is controlled by, the
Company.
(b) Remedies for Violation. The Executive recognizes and agrees that
because a violation by him of this Section 8 will cause irreparable harm to the
Company that could not be quantified and for which money damages would be
inadequate, the Company shall have the right to injunctive relief to prevent or
restrain any such violations, without the necessity of posting a bond.
9. Governing Law/Jurisdiction. This Agreement shall be governed by and
interpreted and governed in accordance with the laws of the State of North
Carolina. The parties agree that this Agreement was made and entered into in
North Carolina and each party hereby consents to the jurisdiction of a competent
court in North Carolina to hear any dispute arising out of this Agreement.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and thereof
and supersedes any and all previous agreements, written and oral, regarding the
subject matter hereof between the parties hereto. This Agreement shall not be
changed, altered, modified or amended, except by a written agreement signed by
both parties hereto.
11. Notices. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by
generally recognized overnight courier service, telex or telecopy, or certified
mail, return receipt requested.
(a) to the Company at:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chairman and CEO
(b) to the Executive at:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Any such notice or other communication will be considered to have been
given (i) on the date of delivery in person, (ii) on the third day after mailing
by certified mail, provided that receipt of delivery is confirmed in writing,
(iii) on the first business day following delivery to a commercial overnight
courier, or (iv) on the date of facsimile transmission (telecopy) provided that
the giver of the notice obtains telephone confirmation of receipt.
Either party may, by notice given to the other party in accordance with
this Section, designate another address or person for receipt of notices
hereunder.
12. Severability. If any term or provision of this Agreement, or the
application thereof to any person or under any circumstance, shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such terms to the persons or under circumstances other than those as to which
it is invalid or unenforceable, shall be considered severable and shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. The invalid or unenforceable provisions
shall, to the extent permitted by law, be deemed amended and given such
interpretation as to achieve the economic intent of this Agreement.
13. Waiver. The failure of any party to insist in any once instance or more
upon strict performance of any of the terms and conditions hereof, or to
exercise any right of privilege herein conferred, shall not be construed as a
waiver of such terms, conditions, rights or privileges, but same shall continue
to remain in full force and effect. Any waiver by any party of any violation of,
breach of or default under any provision of this Agreement by the other party
shall not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of or default under any other
provision of this Agreement.
14. Successors and Assigns. This Agreement shall be binding upon the
Company and any successors and assigns of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PROGRESSIVE SOFTWARE HOLDING, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
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Xxxxxxxxxxx Xxxxx
President and CEO
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
