AGREEMENT
Agreement, dated March 31, 2000, between Base Ten Systems, Inc., a
New Jersey corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
In consideration of the mutual promises herein contained,
the parties hereto hereby agree as follows:
1. Resignation. Effective on April 1, 2000 (the "Effective
Date"), Xxxxxxxxx hereby resigns as an officer and as an employee of the Company
and its subsidiaries.
2. Termination of Agreements; No Further Rights. The
parties hereto agree that the employment agreement, dated as of June 11, 1999
(the "Employment Agreement"), between the Company and Xxxxxxxxx and the change
in control agreement, dated June 11, 1999 (the "Change in Control Agreement"),
between the Company and Xxxxxxxxx, and all rights and obligations of the parties
thereunder, are hereby terminated, except as expressly otherwise provided in
Sections 5 and 9 of this Agreement. The parties hereto agree that, effective as
of the Effective Date, Xxxxxxxxx shall not be entitled to receive any further
compensation or benefits from the Company, or rights with respect to the
Company's Class A Common Stock, par value $5.00 per share, under the Employment
Agreement, the Change in Control Agreement or any other agreement or
arrangement, except (i) as set forth in Section 5 of this Agreement and (ii) for
compensation and benefits through and including March 31, 2000 that are due to
Xxxxxxxxx and unpaid.
3. Payment. Simultaneously with the execution of this
Agreement, the Company has paid to Xxxxxxxxx by Company check subject to
collection, and Xxxxxxxxx acknowledges that he has received payment of, a single
lump sum in the amount of $200,000.
4. Consulting Arrangement.
(a) The Company hereby engages Xxxxxxxxx as a consultant
for a period commencing on the Effective Date and ending on October 1, 2000 (the
"Consulting Period"). During the Consulting Period, Xxxxxxxxx shall provide to
the Company or its subsidiaries or affiliates such consulting services as are
reasonably requested by the Company, but in no event shall Xxxxxxxxx be
obligated to (i) devote more than nine days (the "Base Period") to the
performance of such services during any calendar month, or (ii) perform such
consulting services other than from his home in Napa, California or the
Company's California offices, unless the Company gives to Xxxxxxxxx reasonable
prior notice of alternate arrangements. In consideration for Xxxxxxxxx'x
services as a consultant, the Company, simultaneously with the execution of this
Agreement, has deposited $60,000 (the "Escrow Amount") with Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP, as escrow agent (the "Escrow Agent") under the escrow
agreement, dated the date hereof (the "Escrow Agreement"), among the Company,
Xxxxxxxxx and the Escrow Agent, which Escrow Amount will be paid by the Escrow
Agent in accordance with the terms of the Escrow Agreement.
(b) The Company may request Xxxxxxxxx to perform consulting
services under this Section 4 for a period beyond the Base Period during any
calendar month (the "Additional Services"), and Xxxxxxxxx may, but shall not be
obligated to, agree to perform the Additional Services requested by the Company.
If Xxxxxxxxx performs the Additional Services requested by the Company during
any calendar month, the Company shall pay to Xxxxxxxxx $1,200 for each day
beyond the Base Period in such calendar month that Xxxxxxxxx performs such
Additional Services.
(c) The Company shall, subject to and in accordance with
the Company's expense reimbursement policies for employees of the Company,
reimburse Xxxxxxxxx for his reasonable expenses incurred in performing
consulting services for the Company during the Consulting Period.
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5. Stock Options; Benefits. For the purposes of Xxxxxxxxx'x
participation in the Company's employee benefit plans (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended),
Xxxxxxxxx'x employment with the Company shall be deemed to have terminated on
the Effective Date, except that for the purposes of Xxxxxxxxx'x participation in
the Company's 1998 Stock Option and Stock Award Plan, his employment with the
Company shall be deemed to terminate on October 1, 2000.
6. Expenses. The Company shall reimburse Xxxxxxxxx for (i)
his moving costs incurred in connection with his relocation to Napa, California
and (ii) the fees and expenses of his attorney, Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
LLP, incurred in connection with services leading up to and including the
negotiation of this Agreement, the Escrow Agreement and the Mutual Release,
dated the date hereof, between the Company and Xxxxxxxxx, in each case subject
to the presentation by Xxxxxxxxx to the Company of documentation setting forth
such moving costs, fees and expenses with reasonable specificity, up to an
aggregate maximum of $7,500 for all such moving costs, fees and expenses.
7. Non-Disparagement. At no time shall either party hereto
make any public statement that intentionally disparages or defames the goodwill
or reputation of the other party; provided that it shall not be a violation of
this Section 7 for either party hereto to make truthful statements when required
to do so by law or by a court, governmental agency, administrative body or
legislative body with apparent jurisdiction to require such statements.
8. Withholding. The Company shall withhold all amounts
required by law to be withheld from any payments made pursuant to this
Agreement, including any and all amounts required to be withheld by any
applicable federal, state or foreign country's income tax act, and any
applicable city, county or municipality's earnings or income tax act.
9. Confidential Information. Section 4 (Confidentiality) of
the Employment Agreement shall remain in full force and effect from and after
the date hereof, and Xxxxxxxxx shall remain subject to all of his obligations
thereunder.
10. Non-Competition.
(a) For purposes of this Section 10, "Restricted Area"
shall be defined as the State of New Jersey, the remainder of the United States,
and the remainder of the world. The phrase "Products and Services" shall be
defined as all services, including customization and design, with respect to
products sold or offered for sale by the Company, or any of its subsidiaries or
affiliates, used or developed for the Company, or any of its subsidiaries or
affiliates, by Xxxxxxxxx or under the direction of Xxxxxxxxx, at any time, and
from time to time, during his Employment Term (as defined in the Employment
Agreement).
(b) From the Effective Date through October 1, 2000,
Xxxxxxxxx shall not, directly or indirectly, acting as employee, investor,
officer, partner, principal or otherwise of any corporation or other entity,
within the Restricted Area, on behalf of or for any entity other than POMS
Corporation or Pro Pack Data GmbH which, on the Effective Date, is not in the
business of providing products and services which compete materially with the
Products and Services (any such entity, a "Restricted Entity"), engage in any
activity involving products or services which compete materially with the
Products and Services, as such Products and Services existed during the
Employment Term (any such activity, a "Restricted Activity"), except that, if
the Company has expressly declined to engage in any Restricted Activity, or if
Xxxxxxxxx has confirmed with an executive officer of the Company that the
Company is unable to engage in any Restricted Activity, on behalf of or for any
Restricted Entity, then Xxxxxxxxx may engage in that Restricted Activity on
behalf of or for that Restricted Entity.
(c) From the Effective Date through October 1, 2002,
Xxxxxxxxx shall not, directly or indirectly, acting as employee, investor,
officer, partner, principal or otherwise of any corporation or other entity,
within the Restricted Area, engage in any activity on behalf of or for POMS
Corporation or Pro Pack Data GmbH.
(d) The parties hereto agree that in the event that either
the length of time or the geographical area set forth in this Section 10 is
deemed too restrictive in any court proceeding, the court may reduce such
restrictions to those which it deems reasonable under the circumstances.
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(e) Xxxxxxxxx agrees and acknowledges that the Company and
its subsidiaries and affiliates do not have an adequate remedy at law for the
breach or threatened breach by Xxxxxxxxx of the covenants under this Section 10
and agrees that the Company or any subsidiary or affiliate of the Company shall
be entitled to apply for injunctive relief (without the need to post bond or
other security) to restrain Xxxxxxxxx from such breach or threatened breach, in
addition to any other remedies which might be available to the Company or any
subsidiary or affiliate of the Company at law or in equity.
11. Notices. Any notice, consent, demand, request or other
communication given by Xxxxxxxxx or the Company in connection with this
Agreement shall be in writing and shall be deemed to have been given (i) when
delivered personally to the party specified or (ii) three days after mailing by
certified or registered mail, return receipt requested, or (iii) provided that a
written acknowledgment of receipt is obtained, upon delivery by a nationally
recognized overnight courier, to the address set forth below for the party
specified (or to such other address for such party as shall be specified by ten
days' advance notice given pursuant to this Section 11).
(a) If to the Company:
Base Ten Systems, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Board of Directors
(b) If to Xxxxxxxxx:
Xxxxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000
12. Assignment/Binding Effect. This Agreement shall be
binding upon and inure to the benefit of Xxxxxxxxx, the Company and their
respective successors and permitted assigns. No rights of any party under this
Agreement may be assigned, and no obligations of any party under this Agreement
may be delegated, without the prior written consent of the other party, except
that the Company may freely assign its rights and delegate its duties under this
Agreement to any successor of the Company (by way of merger, consolidation or
similar transaction) or to any transferee of all or substantially all of the
Company's assets.
13. Integration. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all other agreements, contracts, understandings and other
arrangements, written or oral, between the parties with respect to the subject
matter hereof, all of which are hereby terminated and shall be of no further
force or effect, including, without limitation, any employment contracts,
agreements or understandings in effect as of the date hereof, except as
expressly otherwise provided herein.
14. Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or discharge is
agreed to in writing signed by Xxxxxxxxx and such officer of the Company as may
be specifically designated by the Board of Directors. No waiver by either party
hereto at any time of any breach by the other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of any similar or dissimilar provision or condition at the same or any
prior or subsequent time. No representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. In the event that any
provision or portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remainder of this
Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law so as to achieve the purposes of this
Agreement. This Agreement may not be terminated by either party without the
written consent of the other party. The headings of the Sections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of New York without regard to conflict of
law principles. This Agreement may be executed in counterparts, each of which
shall be deemed a duplicate original and all of which shall be deemed to be one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
BASE TEN SYSTEMS, INC.
By:_____________________________
Name:
Title:
--------------------------------
Xxxxxx X. Xxxxxxxxx
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