EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 15, 1997, by and between Robocom
Systems Inc., a New York corporation (the "Company"), and Xxxxxx Xxxx (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as Vice President -
Product Development and wishes to acquire and be assured of Employee's continued
services on the terms and conditions hereinafter set forth;
WHEREAS, the Employee desires to be employed by the Company as Vice
President - Product Development and to perform and to serve the Company on the
terms and conditions hereinafter set forth; and
NOW THEREFORE, in consideration of the mutual terms, covenants, agreements
and conditions hereinafter set forth, the Company and the Employee hereby agree
as follows:
1. Employment. The Company hereby employs the Employee to serve as a
full time employee of the Company, and the Employee hereby accepts such
employment with the Company, for the period set forth in Section 2 hereof. The
Employee's principal place of employment shall be at the Company's offices in
Massapequa, New York, or at such other location as shall be mutually acceptable
to the Employee and the Company.
2. Term. Unless earlier terminated as provided in this Agreement, the
term of the Employee's employment under this Agreement shall be for a period
beginning on the date hereof and ending on May 15, 2000 (such period or, if the
Employee's employment hereunder is earlier terminated, such shorter period,
being hereinafter called the "Employment Term").
3. Duties. The Employee shall be employed as Vice President - Product
Development of the Company, shall faithfully and competently perform such duties
at such times and places and in such manner as the Board of Directors of the
Company or the President and Chief Executive Officer of the Company may from
time to time reasonably direct or such other duties appropriate to a senior
executive managerial position as the Board of Directors shall from time to time
determine. Except as otherwise may be approved in advance by the Board of
Directors of the Company, and except during vacation periods and reasonable
periods of absence due to sickness, personal injury or other disability, the
Employee shall devote Employee's full time throughout the Employment Term to the
services required of Employee hereunder. The Employee shall render Employee's
services exclusively to the Company during the Employment Term and shall use
Employee's best efforts, judgment and energy to improve and advance the business
and interests of the Company in a manner consistent with the duties of
Employee's position.
4. Salary and Stock Options.
(a) Salary. In consideration for the services of the Employee
rendered to the Company hereunder, the Company shall pay the Employee a base
salary at an annual rate of $120,000 during the Employment Term, payable in
regular intervals in accordance with the Company's payroll practices. The
Employee's base salary shall be increased by 10% (or such greater amount as the
Board of Directors or a compensation committee of the Board shall determine) on
each November 30 during the Employment Term, commencing on November 30, 1998.
(b) Stock Options. Upon the execution by the Company of an
underwriting agreement in connection with a firm commitment underwritten public
offering of the common stock, par value $0.01 per share, of the Company (the
"Common Stock"), on or prior to September 30, 1997, the Company shall grant to
the Employee, pursuant to and subject to the terms of the Company's 1997 Stock
Option and Long-Term Incentive Compensation Plan, incentive stock options to
purchase 30,000 shares of Common Stock at an exercise price equal to the price
per share at which the Common Stock is sold to the public in such public
offering. Such options shall vest in three equal annual installment on the
first, second and third anniversaries of the date of grant and shall expire on
the fifth anniversary of the date of grant.
(c) Withholding, Etc. The payment of any amounts hereunder
shall be subject to income tax, social security and other applicable
withholdings, as well as such deductions as may be required under the Company's
employee benefit plans.
5. Benefits.
(a) During the Employment Term, the Employee shall be:
(i) eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be provided by the
Company for its key executive employees in accordance with the provisions of any
such plans, as the same may be in effect on and after the date hereof;
(ii) eligible to participate in any medical and
health plans or other employee welfare benefit plans that may be provided by the
Company for its key executive employees in accordance with the provisions of any
such plans, as the same may be in effect on and after the date hereof;
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(iii) entitled to annual paid vacation in accordance
with the Company policy that may be applicable on and after the date hereof to
key executive employees;
(iv) entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable on and
after the date hereof to key executive employees; and
(v) entitled to reimbursement for all reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the
performance of Employee's duties hereunder in accordance with the Company's
policies applicable (on and after the date hereof) thereto.
(b) During the Employment Term, the Company shall reimburse
Employee for Employee's automobile lease, insurance and maintenance expenses up
to an amount equal to $600 per month.
6. Inventions and Confidential Information. The Employee hereby
covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing and servicing with respect
to its business.
(b) The Employee's employment hereunder creates a relationship
of confidence and trust between the Employee and the Company with respect to
certain information pertaining to the business of the Company and its Affiliates
(as hereinafter defined) or pertaining to the business of any client or customer
of the Company or its Affiliates which may be made known to the Employee by the
Company or any of its Affiliates or by any client or customer of the Company or
any of its Affiliates or learned by the Employee during the period of Employee's
employment by the Company.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or otherwise
become known to it (including, without limitation, information created,
discovered or developed by, or made known to, the Employee during the period of
Employee's employment or arising out of Employee's employment) or in which
property rights have been or may be assigned or otherwise conveyed to the
Company, which information has commercial value in the business in which the
Company is engaged and is treated by the Company as confidential.
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(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and services methods or
techniques, formulae, designs, styles, specifications, data bases, computer
programs (whether in source code or object code), know-how, strategies and data,
whether or not patentable or registrable under copyright or similar statutes,
made, developed or created by the Employee (whether at the request or suggestion
of the Company, any of its Affiliates, or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of Employee's employment by the Company which may pertain to
the business, products, or processes of the Company or any of its Affiliates
(collectively hereinafter referred to as "Inventions"), will be promptly and
fully disclosed by the Employee to an appropriate executive officer of the
Company (other than the Employee) without any additional compensation therefor,
all papers, drawings, models, data, documents and other material pertaining to
or in any way relating to any Inventions made, developed or created by Employee
as aforesaid. For the purposes of this Agreement, the term "Affiliate" or
"Affiliates" shall mean any person, corporation or other entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. For the purposes of this definition, "control" when
used with respect to any person, corporation or other entity means the power to
direct the management and policies of such person or entity, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(e) The Employee will keep confidential and will hold for the
Company's sole benefit any Invention which is to be the exclusive property of
the Company under this Section 6 for which no patent, copyright, trademark or
other right or protection is issued.
(f) The Employee also agrees that Employee will not without
the prior written consent of the President and Chief Executive Officer or the
Executive Vice President - Marketing and Sales of the Company (i) use for
Employee's benefit or disclose at any time during Employee's employment by the
Company, or thereafter, except to the extent required by the performance by
Employee of Employee's duties as an employee of the Company, any information
obtained or developed by Employee while in the employ of the Company with
respect to any Inventions or with respect to any customers, clients, suppliers,
products, employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any of its
Affiliates, or any confidential matter, except information which at the time is
generally known to the public other than as a result of disclosure by Employee
not permitted hereunder, or (ii) take with Employee upon leaving the employ of
the Company any document or paper relating to any of the foregoing or any
physical property of the Company or any of its Affiliates.
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(g) The Employee acknowledges and agrees that a remedy at law
for any breach or threatened breach of the provisions of this Section 6 would be
inadequate and, therefore, agrees that the Company and its Affiliates shall be
entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach; provided, however,
that nothing contained herein shall be construed as prohibiting the Company or
any of its Affiliates from pursuing any other rights and remedies available for
any such breach or threatened breach.
(h) The Employee agrees that upon termination of Employee's
employment by the Company for any reason, the Employee shall forthwith return to
the Company all documents and other property in Employee's possession belonging
to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 9 hereof, the
Employee hereby expressly agrees that the foregoing provisions of this Section 6
shall be binding upon the Employee's heirs, successors and legal
representatives.
7. Termination. (a) The Employee's employment hereunder shall be
terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee's employment
hereunder by the Employee at any time for any reason whatsoever (including,
without limitation, resignation or retirement) other than for "good reason" as
contemplated by clause (v)(B) below;
(iii) termination of the Employee's employment
hereunder by the Company because of the Employee's inability to perform
Employee's duties on account of disability or incapacity for a period of one
hundred eighty (180) or more days, whether or not consecutive, occurring within
any period of twelve (12) consecutive months;
(iv) termination of the Employee's employment
hereunder by the Company at any time for "cause" (as hereinafter defined), such
termination to take effect immediately upon written notice from the Company to
the Employee; and
(v) termination of the Employee's employment
hereunder (A) by the Company at any time, other than termination by reason of
disability or incapacity as contemplated by clause (iii) above or termination by
the Company for "cause" as contemplated by clause (iv) above and (B) by the
Employee for "good reason" (as hereinafter defined).
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The following actions, failures or events shall constitute
"cause" for termination within the meaning of clause (iv) above: (1) conviction
of having committed a felony, (2) acts of dishonesty or moral turpitude which
are materially detrimental to the Company and/or its Affiliates, (3) failure by
the Employee to obey the reasonable and lawful orders of the Board of Directors,
the President and Chief Executive Officer or any Executive Vice President of the
Company or (4) negligence by the Employee in the performance of, or willful
disregard by the Employee of, Employee's obligations hereunder.
The following actions, failures or events shall constitute
"good reason" within the meaning of clause (v)(B) above: (1) a material breach
by the Company of its obligations under this Agreement or (2) a material
diminution of the Employee's responsibilities or authority hereunder.
(b) In the event that the Company has terminated the
Employee's employment without cause, then (i) this Agreement shall nonetheless
be deemed terminated, except that the Company shall pay the Employee his base
salary under Section 4(a) and his reimbursement of automobile expenses pursuant
to Section 5(b) through the term of this Agreement and (ii) the Employee shall
be entitled to the continuation of medical and health benefits through the term
of this Agreement comparable to those benefits furnished by the Company to the
Employee on the date of termination. The Company and the Employee agree that the
payments made pursuant to this paragraph (b) shall be paid to the Employee as
consideration for the non-competition provisions set forth in Section 8(a)(x)
hereof and that if the Employee is no longer employed by the Company and the
non-competition provisions set forth in Section 8(a)(x) extend beyond the term
of this Agreement, the payments made pursuant to this paragraph (b) shall be
paid to the Employee through the date of termination of his agreement not to
compete.
(c) Notwithstanding anything to the contrary expressed or
implied herein, except as required by applicable law and except as set forth in
paragraph (b) above, the Company (and its Affiliates) shall not be obligated to
make any payments to the Employee or on Employee's behalf of whatever kind or
nature by reason of the Employee's cessation of employment (including, without
limitation, by reason of termination of the Employee's employment by the Company
for "cause"), other than (i) such amounts, if any, of Employee's salary and
bonus as shall have accrued and remained unpaid as of the date of said cessation
and (ii) such other amounts which may be then otherwise payable to the Employee
from the Company's benefits plans or reimbursement policies, if any.
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(d) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
8. Non-Competition. (a) The term "Non-Compete Term" shall mean the
period during which Employee is employed hereunder and (x) in the event
Employee's employment is terminated by the Company for any reason other than
"cause" or by Employee for "good reason," the one-year period following such
termination, (y) in the event Employee's employment is terminated by the Company
for "cause" or by Employee for any reason other than "good reason," the two-year
period following such termination. During the Non-Compete Term:
(i) the Employee will not make any statement or
perform any act intended to advance an interest of any existing or prospective
competitor of the Company or any of its Affiliates in any way that will or may
injure an interest of the Company or any of its Affiliates in its relationship
and dealings with existing or potential customers or clients, or solicit or
encourage any other employee of the Company or any of its Affiliates to do any
act that is disloyal to the Company or any of its Affiliates or inconsistent
with the interest of the Company or any of its Affiliate's interests or in
violation of any provision of this Agreement;
(ii) the Employee will not discuss with any existing
or potential customers or clients of the Company or any of its Affiliates the
present or future availability of services or products of a business, if the
Employee has or expects to acquire a proprietary interest in such business or is
or expects to be an employee, officer or director of such business, where such
services or products are competitive with services or products which the Company
or any of its Affiliates provides;
(iii) the Employee will not directly or indirectly
(as a director, stockholder, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own any
interest in, perform any services for, participate in or be connected with (i)
any business or organization which engages in competition with the Company or
any of its Affiliates in any geographical area where any business is presently
carried on by the Company or any of its Affiliates, or (ii) any business or
organization which engages in competition with the Company or any of its
Affiliates in any geographical area where any business shall be hereafter,
during the period of the Employee's employment by the Company, carried on by the
Company or any of its Affiliates, if such business is then being carried on by
the Company or any of its Affiliates in such geographical area; and
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(iv) the Employee will not directly or indirectly
solicit for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of the Company or any of its
Affiliates; and
provided, however, that the provisions of this Section 8(a) shall not be deemed
to prohibit the Employee's ownership of not more than five percent (5%) of the
total shares of all classes of stock outstanding of any publicly held company.
(b) (i) For purposes of this Section 8, a person or entity
(including, without limitation, the Employee) shall be deemed to be a competitor
of the Company or any of its Affiliates, or a person or entity (including,
without limitation, the Employee) shall be deemed to be engaging in competition
with the Company or any of its Affiliates, only if such person or entity in any
way conducts, operates, carries out or engages in the design, development,
marketing, installation or support of warehouse management systems or other
computer integrated or turnkey warehouse management systems in the United States
or such other business or businesses as the Company may in the future conduct in
such geographical area or areas as such business or businesses are conducted by
the Company.
(ii) The Employee further agrees that the limitations
set forth in this Section 8 (including, without limitation, any time or
territorial limitations) are reasonable and properly required for the adequate
protection of the businesses of the Company and its Affiliates. It is understood
and agreed that the covenants made by the Employee in this Section 8 (and in
Section 6 hereof) shall survive the expiration or termination of this Agreement.
(iii) The Employee acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of this
Section 8 would be inadequate and, therefore, agrees that the Company and any of
its Affiliates shall be entitled to injunctive relief in addition to any other
available rights and remedies in cases of any such breach or threatened breach;
provided, however, that nothing contained herein shall be construed as
prohibiting the Company or any of its Affiliates from pursuing any other rights
and remedies available for any such breach or threatened breach.
9. Non-Assignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee, Employee's beneficiaries, or
legal representatives without the Company's prior written consent; provided,
however, that nothing in this Section 9 shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon
Employee's death or incapacity.
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10. Binding Effect. Without limiting or diminishing the effect of
Section 9 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
11. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and either delivered in person or
sent by first class certified or registered mail, postage prepaid, if to the
Company, at the Company's principal place of business, and if to the Employee,
at Employee's home address set forth on the signature page hereto, or to such
other address or addresses as either party shall have designated in writing to
the other party hereto.
12. Severability. The Employee agrees that in the event that any court
of competent jurisdiction shall finally hold that any provision of Section 6 or
8 hereof is void or constitutes an unreasonable restriction against the
Employee, such provision shall not be rendered void but shall apply with respect
to such extent as such court may judicially determine constitutes a reasonable
restriction under the circumstances. If any part of this Agreement other than
Section 6 or 8 is held by a court of competent jurisdiction to be invalid,
illegible or incapable of being enforced in whole or in part by reason of any
rule of law or public policy, such part shall be deemed to be severed from the
remainder of this Agreement for the purpose only of the particular legal
proceedings in question and all other covenants and provisions of this Agreement
shall in every other respect continue in full force and effect and no covenant
or provision shall be deemed dependent upon any other covenant or provision.
13. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
14. Entire Agreement; Modifications. This Agreement constitutes the
entire and final expression of the agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
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15. Relevant Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York without regard to the
conflicts of law principles thereof.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company and the Employee have duly executed and
delivered this Agreement as of the day and year first above written.
ROBOCOM SYSTEMS INC.
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President
EMPLOYEE:
/s/ Xxxxxx Xxxx
-----------------------------------------
XXXXXX XXXX
Address: 000 Xxxxx Xxxxxx
---------------------------------
Xxxxxxxxxx, XX 00000
---------------------------------
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