Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
26th day of December, 2000, by and between Progressive Software, Inc., a North
Carolina corporation with a mailing address of 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Company"), and Xxxxxxxxxxx Xxxxx, an
individual with a residence address of 0000X Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 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;
provided that, thereafter, the term of this Agreement shall automatically extend
by thirty (30) days for each thirty (30) day period which shall expire without
either the Company or the Executive giving written notice of termination.
2. EMPLOYMENT DUTIES. Subject to the terms and conditions set forth
herein, the Company hereby employs the Executive to act as Executive Vice
President with specific responsibility for Sales, Marketing and Product
Development, 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 its Board of Directors and Chief Executive
Officer. 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 base salary
at an annualized rate of $150,000 (the "Base Salary"), payable monthly. The
Executive's Base Salary shall not be decreased. On an annual basis hereafter the
Chief Executive Officer shall review and may increase the Executive's annual
base salary in its discretion, based upon the Company's performance and the
Executive's particular contributions.
(b) BONUS. The Executive shall have an opportunity to earn an annual
cash bonus of up to thirty percent (30%) of the Base Salary based upon achieving
the goals set forth in Exhibit B [Company's Executive Incentive Compensation
Plan payable after completion of the annual audit], subject to 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. Tridex Corporation ("Tridex") which is the parent of the
Company hereby grants to the Executive the right and option (the "Options") to
purchase all or any part of Seventy Thousand (70,000) shares of its common
stock, no par value, of Tridex for a purchase price per share equal to the
closing price of Tridex's common stock as reported on the Over-the-Counter
Bulletin Board on the date of execution hereof, on the terms and conditions and
subject to all limitations set forth in the Tridex Corporation 1997 Long Term
Incentive Compensation Plan (the "Plan"), and in an option agreement (the
"Option Agreement") between Tridex and the Executive in the form attached hereto
as EXHIBIT A.
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 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], without interruption of salary.
(c) AUTOMOBILE ALLOWANCE. The Company shall provide the Executive
with an automobile allowance consisting of $575.00 per month.
(d) 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.
(e) For the first six (6) months of this Agreement, the Company will
reimburse the Executive for up to $4,000 with respect to temporary living
expenses (apartment, automobile and personal travel) incurred by the Executive
while physically located in Charlotte, North Carolina. Effective date will be
fir day of employment.
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 Chief
Executive Officer, 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.
(iii) CHANGE IN CONTROL. A "Change in Control" will be deemed
to have occurred if: (1) Tridex or the Company effectuates a Takeover
Transaction; or (2) any election of directors of Tridex or the Company (whether
by the directors then in office or by the stockholders at a meeting or by
written consent) where a majority of the directors in office following such
election are individuals who were not nominated by a vote of two-thirds of the
members of the Board of Directors of such company immediately preceding such
election; or (3) the Company effectuates a complete liquidation or a sale or
disposition of all or substantially all of its assets. A "Change in Control"
shall not be deemed to include, however, a merger or sale of stock, assets or
business of the Company if the Executive immediately after such event owns, or
in connection with such event immediately acquires (other than in the
Executive's capacity as an equity holder of Tridex or as a beneficiary of its
employee stock ownership plan or profit sharing plan), any stock of the buyer or
other party to a merger, or any affiliate thereof.
(iv) TAKEOVER TRANSACTION. Takeover Transaction. A
"Takeover Transaction" shall mean (1) a merger or consolidation of Tridex or
the Company with, or an acquisition of Tridex or the Company or all or
substantially all of its assets by, any other corporation, other than a
merger, consolidation or acquisition in which the individuals who were
members of the Board of Directors of Tridex or the Company immediately prior
to such transaction continue to constitute a majority of the Board of
Directors of the surviving corporation (or, in the case of an acquisition
involving a holding company, constitute a majority of the Board of Directors
of the holding company) for a period of not less than twelve (12) months
following the closing of such transaction, or (2) when any person or entity
or group of persons or entities (other than any trustee or other fiduciary
holding securities under an employee benefit plan of Tridex or the Company)
either related or acting in concert becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of
securities of the Company representing more than fifty percent (50%) of the
total number of votes that may be cast for the election of directors of the
Company.
(v) TERMINATING EVENT. A "Terminating Event" shall mean: (1)
termination by the Company of the employment of the Executive without Cause
occurring within three (3) months of a Change in Control; or (2) resignation of
the Executive from the employ of the Company subsequent to any of the following
events occurring within three (3) months of a Change in Control: (A) a
significant reduction in the nature or scope of the Executive's
responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised by the
Executive immediately prior to the Change in Control; (B) a decrease in the Base
Salary payable by the Company to the Executive from the Base Salary payable to
the Executive immediately prior to the Change in Control except for
across-the-board salary reductions similarly affecting all management personnel
of the Company; (C) elimination or reduction of the Executive's participation in
the Company's Executive Incentive Compensation Plan; or (D) the relocation of
the Company's executive offices by more than 50 miles from their current
location in Charlotte, North Carolina (unless such new location is closer than
Charlotte, North Carolina to the Executive's then residence); provided, however,
that a Terminating Event shall not be deemed to have occurred (I) solely as a
result of the Executive being an employee of any direct or indirect successor to
the business or assets of the Company, rather than continuing as an employee of
the Company, following a Change in Control, or (II) while the Executive is
receiving payments or benefits from a Company sponsored plan by reason of the
Executive's disability.
(b) SEVERANCE.
(i) WITHOUT CAUSE. If the Company terminates this Agreement
without Cause, other than as a result of a Terminating Event, then commencing on
the date of such termination, and for a period equal to six (6) months
thereafter, the Company shall provide the Executive with a severance package
which shall consist of the following: (1) payment on the first business day of
each month of an amount equal to one-twelfth of the Executive's then current
annualized Base Salary; and (2) continuation of all benefits under Section 4(a).
(ii) WITH A TERMINATING EVENT. If the Company terminates this
Agreement as a result of a Terminating Event, then commencing on the date of
such termination and for a period equal to six (6) months thereafter, the
Company shall provide the Executive with a severance package which shall consist
of the following: (1) payment on the first business day of each month an amount
equal to one-twelfth of the Executive's then current annual Base Salary; and (2)
continuation of all benefits under Section 4(a). In addition, if the Company
terminates this Agreement as a result of a Terminating Event, then the Company
shall cause the immediate vesting of all options granted to the Executive under
the Company's stock plans.
(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 employees, officers, directors, agents and attorneys.
(d) RESIGNATION. If the Executive terminates this Agreement, he 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 (a) for one
(1) year following the termination of this Agreement or (b) 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): (i) 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 (ii) 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
(iii) 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:
0000X Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 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, INC.
By: /s/ Xxxx Xxxxxx
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Vice President
EXECUTIVE:
/s/ Xxxxxxxxxxx Xxxxx
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Xxxxxxxxxxx Xxxxx
