Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
1st day of June, 2000, by and between Tridex Corporation, a Connecticut
corporation with a mailing address of 00 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 (the "Company"), and Xxxxxxx X. Xxxxx, an individual with a residence
address of 000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 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 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 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 Executive giving written notice of termination.
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. SALARY AND BONUS.
(a) BASE SALARY. The Company agrees to pay Executive a base salary at
an annualized rate of $150,000 (the "Base Salary"), payable monthly. Executive's
Base Salary shall not be decreased. On an annual basis hereafter the Board of
Directors of the Company (or any appropriate committee thereof) 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. Executive shall have an opportunity to earn an annual cash
bonus of up to thirty-five percent (35%) of the Base Salary under the Company's
Executive Incentive Compensation Plan,
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 Executive.
(c) OPTIONS. The Company hereby grants to the Executive the right and
option (the "Options") to purchase all or any part of Forty Thousand (40,000)
shares of Company common stock, no par value, for a purchase price per share
equal to the closing price of the Company'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 the Company and Executive in
the form attached hereto as EXHIBIT A.
4. OTHER BENEFITS.
(a) REIMBURSEMENT FOR INSURANCE PREMIUMS. The Executive shall receive
reimbursement, on a monthly basis during the Employment Period, of monthly or
other regular policy premium amounts due under the Executive's existing medical
insurance policy; provided, that the reimbursement amount shall not exceed
$350.00 per month.
(b) VACATION. 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 Executive with
an automobile allowance consisting of $400.00 per month.
(d) 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 AND SEVERANCE.
(a) NOTICE/EVENTS/DEFINED TERMS.
(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.
(iii) CHANGE IN CONTROL. A "Change in Control" will be
deemed to have occurred if: (1) the Company effectuates a Takeover Transaction;
or (2) any election of directors of 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 immediately preceding such election; or (3) the Company effectuates a
complete liquidation of the Company 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 the Company 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 the Company
with, or an acquisition of 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 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 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 twelve (12) 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 twelve (12) 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 Westport, Connecticut (unless such new location is closer than
Westport, Connecticut 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 one (1) year thereafter,
the Company shall provide 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; (2) payment on the first business day of each month of an amount equal
to one-twelfth of the Executive's annual target bonus amount under the Company's
Executive Incentive Compensation Plan for the year of termination, pro rated for
the portion of the fiscal year occurring prior to termination; and (3)
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 fifteen (15) months thereafter, the
Company shall provide 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; (2)
payment on the first business day of each month of an amount equal to
one-twelfth of the Executive's annual target bonus amount under the Company's
Executive Incentive Compensation Plan; and (3) 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.
At any time when the Company is obligated to make monthly payments under this
Section 6(b)(ii), the Company shall, ten (10) days after receipt of a written
request from the Executive, pay the Executive an amount equal to the balance of
the amounts payable under Section 6(b)(ii)(1)-(2), provided that the obligation
of the Company to continue to provide benefits pursuant to Section 6(b)(ii)(3)
or to make monthly payments under 6(b)(ii)(1)-(2) shall cease upon the payment
of such amount.
(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 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 and 4 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) in the
case of termination other than as a result of a Terminating Event, for one (1)
year following the termination of this Agreement or (b) in the case of
termination as a result of a Terminating Event, for two (2) years following the
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): (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.
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
Connecticut. The parties agree that this Agreement was made and entered into
in Connecticut and each party hereby consents to the jurisdiction of a
competent court in Connecticut 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:
00 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Chairman and CEO
(b) to the Executive at:
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 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.
TRIDEX CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, President,
Chairman and CEO
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxx X. Xxxxx
