Exhibit 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 2nd day of
August, 1999, by and between Tridex Corporation, a Connecticut corporation with
a mailing address of 00 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Company"), and Xxxxxx Xxxxxx, an individual with an address of 0000 Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000, (the "Executive").
INTRODUCTION
1. The Company is in the business of providing point-of-sale (POS) and
back-office enterprise resource management software, systems integration
and related services for the food service and specialty retail markets (the
"Business").
2. The Company desires to employ Executive and Executive desires to accept
such employment on the terms and conditions set forth herein.
AGREEMENT
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 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 an intent to
terminate.
2. EMPLOYMENT DUTIES. Subject to the terms and conditions set forth herein,
the Company hereby employs Executive to act as President of Progressive
Software, during the Employment Period, and Executive hereby accepts such
employment. The duties assigned and authority granted to Executive shall be
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 at an annualized rate
of $150,000 per year, payable bi-weekly in arrears.
(b) BONUS. Executive shall have an opportunity to earn an annual cash
bonus under the Company's Incentive Compensation Plan, subject to the
discretion of the Company's Board of Directors (or any appropriate
committee thereof).
4. OTHER BENEFITS.
(a) INSURANCE AND OTHER BENEFITS. The Executive shall be entitled to
participate in, and shall receive the maximum benefits available
under, the Company's insurance programs (including health, disability
and life insurance) and any ERISA benefit plans, as the same may be
adopted and/or amended from time to time, and shall receive all other
forms of fringe benefits that are provided by the Company to other
senior executives. The Company shall contribute the maximum amount
permitted under current law to the Executive's 401(k) Plan, and any
other Company pension or retirement plan during the Employment Period.
(b) VACATION. Executive shall be entitled to an annual vacation of such
duration as may be determined by Company policy 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.
(d) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
all reasonable travel, entertainment and other expenses incurred or
paid by the Executive in connection with, or related to, the
performance of her 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 six (6) 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, and/or the CEO, with
respect to the services to be rendered and the manner of rendering
such services by Executive, provided such refusal is material and
repetitive and is not justified or excused either by the terms of this
Agreement or by actions taken by the Company in violation of this
Agreement, and with respect to the first two refusals Executive has
been given reasonable written notice and explanation thereof and
reasonable opportunity to cure and no cure has been effected within a
reasonable time after such notice.
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.
6.1 NOTICE/EVENTS/DEFINED TERMS.
(a) 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.
(b) 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.
(c) 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 any affiliate thereof.
(d) TAKEOVER TRANSACTION. A "Takeover Transaction" shall mean (i) 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
are or become a majority of the members 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 (ii) 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.
(e) TERMINATING EVENT. A "Terminating Event" shall mean: (i) termination
by the Company of the employment of the Executive without Cause
occurring within twelve (12) months of a Change in Control; or (ii)
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 salary payable by the
Company to the Executive from the 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 Incentive Compensation Plan; or (D) the relocation of
the Company's executive offices (or, if the Executive is primarily
located at the Company's software development facilities, such
facilities) 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
(iii) 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 (iv) while the Executive is receiving payments
or benefits from a Company sponsored plan by reason of the Executive's
disability.
6.2 SEVERANCE
(a) 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 Executive with a severance
package which shall consist of the following: (i) 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 under Section 3(a)
hereof; (ii) 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 (iii) continuation of all benefits
under Section 4(a), (b) and (d).
(b) 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 one (1) year thereafter, the
Company shall provide Executive with a severance package which shall
consist of the following: (i) payment on the first business day of
each month an amount equal to one-twelfth of the Executive's then
current annual base salary under Section 3(a) hereof; (ii) 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 (iii) continuation of all
benefits under Section 4(a), (b), and (d). 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 Section 6.2(b),
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 6.2(b)(i)-(ii), provided that the
obligation of the Company to continue to provide benefits pursuant to
Section 6.2(b) (iii) or to make monthly payments under 6.2(b) (i)-(ii)
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 with 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.
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 six (6)
months following the termination of this Agreement or (b) in the case of
termination as a result of a Terminating Event, for one (1) year 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.
For purposes of this Section 7, 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 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 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.
Executive agrees as follows: (1) only to use the Confidential Information
to provide services to the Company; (2) only to communicate Confidential
Information to fellow employees, agents and representatives of the Company
on a need-to-know basis; and (3) 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 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.
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:
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 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
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Title: Chairman and CEO
EXECUTIVE:
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
