EXHIBIT 10.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the 6th
day of July, 2002 (the "Effective Date"), 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
Xxxxxxxxxxx Xxxxx, an individual with a residence address of 0000 Xxx Xxx Xxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (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 the Executive and the 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 one (1) year from the date hereof.
2. Employment Duties. Subject to the terms and conditions set forth herein,
the Company hereby employs the Executive to act as President and Chief Executive
Officer of the Company during the Employment Period, and the Executive hereby
accepts such employment. The duties assigned and authority granted to the
Executive shall be determined by the Company's Board of Directors. The 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 the Executive's duties
hereunder.
3. Salary and Bonus.
(a) Base Salary. The Company agrees to pay the Executive a salary at an
annualized rate of $175,000 from the Effective Date through December 31, 2002,
and a salary at an annualized rate of $200,000 from January 1, 2003 through the
remainder of the Employment Period, payable monthly.
(b) Bonus. The Executive shall have an opportunity to earn an annual cash
bonus in the discretion of the Company's Board of Directors (or any appropriate
committee thereof); provided, that nothing herein shall obligate the Company to
pay any bonus to the Executive.
(c) Options. The Executive shall have an opportunity to participate in any
employee option plan established by the Company in the discretion of the
Company's Board of Directors (or any appropriate committee thereof); provided,
that nothing herein shall obligate the Company to grant options to the
Executive.
4. Other Benefits.
(a) Reimbursement for Insurance Premiums. The Executive shall participate
in the Company's medical insurance program for its employees.
(b) Vacation. The Executive shall be entitled to an annual vacation of such
duration in accordance with the vacation policies of the Company in effect for
its executives and as may be determined by the Board of Directors, and in no
event less than three (3) weeks, without interruption of salary.
(c) Reimbursement of Expenses. The Company shall reimburse the 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 the 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.
(d) Moving Expenses. The Company shall reimburse the Executive for up to
$7,000 for moving expenses incurred by the Executive in connection with his
relocation to North Carolina.
(e) Forgiveness of Debt. The Company shall forgive loans in the amount of
$45,000 made before the date hereof by the Company to the Executive.
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, with respect to
the services to be rendered and the manner of rendering such services by the
Executive or the Executive's failure, after notice, to satisfactorily carry out
the duties assigned to him.
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 and Severance.
(a) Notice/Events/Defined Terms.
(i) Termination by the Executive. The 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 the 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) Severance. If the Company terminates this Agreement without cause
within the first six (6) months of the Effective Date, then commencing on the
date of such termination, the Company shall provide the Executive with a
severance payment equal to three quarters of his annual salary then in effect,
payable in nine (9) equal monthly installments. Thereafter, the Executive shall
accrue one (1) additional month of severance payment for every two (2) months of
service to the Company through the end of the Employment Period up to a maximum
severance payment equal to twelve (12) months of the Executive's annual salary
in effect at the time of termination of this agreement, payable in equal monthly
installments over the number of months of severance so accrued, upon termination
without cause during the last six (6) months of the Employment Period or upon
the end of the Employment Period if the Executive's employment is not continued
or renewed by the Company.
(c) General Release. As a condition precedent to receiving any severance
payment, the Executive shall execute a general release of any and all claims
which the Executive or his heirs, executors, agents or assigns might have
against the Company, its subsidiaries, affiliates, successors, assigns and its
past, present and future stockholders, employees, officers, directors, agents
and attorneys.
(d) Resignation. If the Executive or the Company with cause terminates this
Agreement, the Executive shall have no rights to receive severance payments from
the Company, and all obligations of the Company pursuant to Sections 3, 4 and 6
hereof shall terminate immediately effective upon the date of such termination;
provided, that the Company shall pay to the Executive any amounts under Section
3 hereof earned but unpaid as of such date of termination.
7. Non-Competition. During the term of this Agreement and for one (1) year
following the termination of this Agreement, the 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.
The 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 the 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 the 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. The 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").
The Executive hereby acknowledges Company's exclusive ownership of such
Confidential Information.
(a) The Executive's Agreements. The 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, together with its Exhibits,
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
(b) to the Executive at:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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/ Xxxxxxx X. Xxxxx
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Name:Xxxxxxx X. Xxxxx
Title:Treasurer
EXECUTIVE:
/s/ Xxxxxxxxxxx Xxxxx
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Xxxxxxxxxxx Xxxxx
