Exhibit 10.1
AGREEMENT
THIS AGREEMENT dated as of January 2, 1995 by and between PSC INC., a New
York corporation ("PSC" or the "Company") and ROBERT S. EHRLICH ("Ehrlich").
WHEREAS, PSC and Ehrlich entered into a certain Employment Agreement as of
August 1, 1991 which Agreement was thereafter amended on June 12, 1992; and
WHEREAS, the parties have mutually terminated Ehrlich's status as an
employee and have changed the nature of the relationship between them as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties as follows:
1. Definitions.
Business of the Company. The Business of the Company is the development,
manufacturing and marketing of technologies products and services for the
automatic identification and keyless data entry industry, and includes, but is
not limited to, products, services, applications, systems and technologies
relating to bar coded data, magnetic stripe encoded data, radio frequency
communications of bar coded or related data, optical character recognition,
machine vision as applied to the recognition of bar coded data, and electronic
interchange of bar coded or related data. The Business of the Company shall also
include any business in which the Company is actually engaged or as to which it
is doing research and development during the Term of this Agreement. Cause.
Conduct described in Section 10b.
Company. PSC, its subsidiaries and divisions and all entities controlled
by, under common control with or controlling PSC .
Confidential Information. The information described in Section 7.
Term. That period described in Section 3.
2. Services. Ehrlich shall render to the Company such consulting services
as may be, from time to time, reasonably requested by PSC's President and Chief
Executive Officer in such areas as strategic planning, corporate development,
mergers and acquisitions and development of overseas markets. During the Term,
in good faith, Ehrlich shall exert all reasonable efforts to promote the
interests of the Company and shall devote such time, attention and energies to
the performance of his responsibilities and duties hereunder and at such
locations as may reasonably be deemed necessary or appropriate by the parties.
During the Term, Ehrlich may have other business investments and participate in
other unrelated and non competitive business ventures, but these shall not
interfere or be inconsistent with his duties hereunder. Ehrlich may perform his
consulting services at such times, at such locations and by such means (i.e. in
person, by phone, by fax or other electronic devices) as shall be reasonably
appropriate and mutually agreeable.
3. Term. Ehrlich's engagement to provide consulting services to the Company
under this Agreement shall commence as of the date of this Agreement and shall
terminate on December 31, l996 (the "Term"), unless extended by the mutual
agreement of Ehrlich and PSC.
4. Compensation. For all consulting services to be rendered to the Company
by Ehrlich, PSC shall pay to Ehrlich an annual consulting fee of $54,000 The fee
shall be payable biweekly. As an independent contractor Ehrlich shall be
responsible for such taxes as may be due thereon.
5. Options. Notwithstanding the termination of Ehrlich's employment as an
employee, the parties agree that the Non-Qualified Stock Option held by Ehrlich
dated February 14, 1992 for 83,000 shares which is fully vested and the
Non-Qualified Stock Option held by Ehrlich dated May 27, 1992 for 10,000 shares
which is fully vested, will be exercisable in accordance with their respective
terms throughout the Term and for three months thereafter or until the
expiration date set forth in the respective option agreements, whichever is
earlier.
6. Independent Contractor. The Company and Ehrlich shall act solely as
independent contractors, and nothing herein shall at any time be construed to
create the relationship of employer and employee, partnership, principal and
agent, or joint venturers as between the Company and Ehrlich. Neither the
Company nor Ehrlich shall have any right or authority, and shall not attempt to
enter into any contract, commitment or agreement or incur any debt or liability,
of any nature, in the name of or on behalf of the other.
7. Confidential Information. Ehrlich agrees that during the Term and for
five years thereafter, he will not, except as required by the performance of his
duties under this Agreement, disclose or authorize anyone else to disclose or
use or make known for his or another's benefit, any confidential information,
knowledge or data of the Company, whether or not patentable or copyrightable, in
any way acquired by him from the inception of his original relationship with the
Company in any capacity through the expiration of the Term (herein "Confidential
Information"). Confidential Information, for purposes of this Agreement, shall
include, but not be limited to, matters not readily available to the public
which are:
(a) of a technical nature, such as, but not limited to, methods, know-how,
formulae, compositions, drawings, blueprints, compounds, processes, discoveries,
machines, inventions, computer programs, and similar items;
(b) of a business nature, such as, but not limited to, information about
sales or lists of customers, prices, costs, purchasing, profits, markets,
strengths and weaknesses of products, business processes, business and marketing
plans and activities and employee personnel records;
(c) pertaining to future developments, such as, but not limited to,
research and development, future marketing or merchandising plans or ideas.
Immediately upon termination of Ehrlich's services, Ehrlich shall deliver
to the Company all originals and copies of everything in his possession or under
his control which embodies or contains Confidential Information, including,
without limitation, all documents, correspondence, specifications, blueprints,
notebooks, reports, sketches, formulae, computer programs, computer discs, sales
and other materials, price lists, customer lists or information, samples, and
all other materials.
Confidential Information shall not include information which (i) is
published or otherwise becomes generally available to the public other than by a
breach of confidentiality, or (ii) Ehrlich can show by documentation was
properly in his possession prior to the commencement of his original
relationship with the Company, or (iii) becomes available to Ehrlich from an
independent source without breach of this Agreement or violation of law, or (iv)
is independently developed by Ehrlich without the use of the Company's
Confidential Information.
8. Covenant Not to Compete.
a. In light of the special and unique services that have been and will be
furnished to the Company by Ehrlich and the Confidential Information that has
been and will be disclosed to him during his relationship with the Company,
Ehrlich agrees that during the Term, and for a period of eighteen (18) months
thereafter he will not, without the written consent of the Company, directly or
indirectly, whether as principal, agent, officer, director, consultant,
employee, partner, stockholder or owner of or in any capacity with any
corporation, partnership, business, firm, individual company or any entity
located in the United States, Canada, Europe, the Near East or Asia engage in,
or assist another to engage in, any work or activity in any way competitive with
the Business of the Company. However, nothing herein shall prevent Ehrlich from
owning not more than five percent (5%) of the outstanding publicly traded shares
of common stock of a corporation, as to which corporation Ehrlich has no
relationship other than as a shareholder.
Ehrlich specifically agrees that because of his special expertise and the
special and unique services that he will be furnishing the Company, and because
of the Confidential Information that has been acquired by him or that will be
disclosed to him during the Term, the above stated geographic areas and time
period, in and during which he will not compete with the Company, are reasonable
in scope and duration and are necessary to afford the Company just and adequate
protection against the irreparable damage which would result to the Company from
any activities prohibited by this Section.
b. If Ehrlich in any way breaches the obligations specified in this
Section, the Company shall have the right, in addition to any other remedies
available to it, to terminate the further payment of any amounts due under
Section 4 hereof, if, and only if, Ehrlich is terminated in accordance with the
provisions of Section 10 below.
c. If any provision hereof is found to be unreasonably broad, it shall
nevertheless be enforceable to the extent reasonably necessary for the
protection of the Company and to carry out to the fullest extent the parties'
mutual intent in entering into this Agreement, which intent is that the
provisions of this Section will be strictly enforced as agreed to.
9. Injunctive Relief. Ehrlich agrees that in the event of a breach or
threatened breach by Ehrlich of any of the provisions of Sections 7 or 8 hereof,
the Company shall be entitled to an injunction restraining Ehrlich from such
breach or threatened breach without posting any bond or other security. Nothing
herein, however, shall be construed as prohibiting the Company from pursuing, in
conjunction with an injunction or otherwise, any other remedies available to the
Company for such breach or threatened breach, including the recovery of damages
from Ehrlich.
10. Termination of Services.
(a) Death or Disability of Ehrlich. The services of Ehrlich under this
Agreement shall terminate if he dies or, at the option of the Company, if he
shall be prevented from performing his duties under this Agreement because of
disability or illness for a continuous period of 180 days.
(b) Termination for Cause. The parties acknowledge that among the several
justifications for payment of the consulting fees set forth in Section 4 hereof
are Ehrlich's continued good faith and reasonable efforts to promote the
interests of the Company. The Company shall have the right to terminate the
services of Ehrlich at any time without further liability or obligations to
Ehrlich upon the happening of any of the following events:
(i) Ehrlich engages in dishonesty, willful misconduct, any criminal act
(other than minor infractions) or habitual neglect of his duties, which is
inconsistent with the foregoing acknowledged exercise of good faith and
reasonable efforts or with the responsibilities associated with Ehrlich's duties
under this Agreement, or which is seriously detrimental to the Company; or
(ii) Ehrlich violates or breaches in any material respect any material
term, covenant, or condition contained in this Agreement.
Termination of the services of Ehrlich for cause pursuant to the provisions
of Section 10(b)(i) or (ii) above shall not be effective unless and until acted
upon by the Board of Directors and unless and until written notice shall have
been given to Ehrlich which notice shall include (i) identification with
specificity of the provision of this Agreement on which the termination is based
and (ii) identification with specificity of each and every factual basis or
incident upon which the termination is based.
(a) Termination Without Cause. Any termination of services of Ehrlich for
reasons other than those specified in Sections 10(a) or (b) above shall be
deemed to be "without cause", and the Company shall be obligated to continue to
pay to Ehrlich the consulting fees provided for by Section 4 of this Agreement.
Said consulting fees shall be paid in the same manner, at the same times, and
for the same term as specified in Sections 3 and 4.
11. Notices. All notice given in connection with this Agreement shall be in
writing and shall be delivered either by personal delivery, by telegram, telex,
telecopy or similar facsimile means, by certified or registered mail, return
receipt requested, or by express courier or the parties hereto at the following
addresses:
To Ehrlich: To PSC:
Robert S. Ehrlich PSC Inc.
P.O. Box 1334 675 Basket Road
Efrat 90962 Webster, NY 14580
Israel Attn: President
Fax: 011-972-293-2189 Fax: 716/265-6406
or at such other address and number as either party shall have previously
designated by written notice given to the other party in the manner hereinabove
set forth. Notice shall be deemed given when received, if sent by telegram,
telex, telecopy or similar facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent by
telex, telecopy or other facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if
hand-delivered, sent by express courier or delivery service, or sent by
certified or registered mail, return receipt requested.
12. Waiver. Any waiver of a breach of any of the terms of this Agreement
shall not operate as a waiver of any other breach of such terms or of any other
terms, nor shall failure to enforce any term hereof operate as a waiver of any
such term or of any other term.
13. Severability. If any term of this Agreement or the application thereof
is held invalid or unenforceable, the validity or unenforceability shall not
affect any other terms of this Agreement which can be given effect without the
invalid or unenforceable term.
14. Governing Law: Venue. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of New York,
without reference to conflict of law principles or the domicile or residence of
any individual party if other than New York. The parties hereby submit and
consent to the exclusive personal jurisdiction of the Supreme Court of New York,
Monroe County or of the United States District Court for the Western District of
New York for any legal action instituted by any party against any other with
respect to the subject matter hereof and process in such action shall be
effectively served if served in accordance with Section 11 hereof.
15. Prior Agreements. This Agreement supersedes all previous agreements
related to the subject matter herein.
16. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof. This Agreement may not be
amended or changed except by a writing signed by both parties.
IN WITNESS WHEREOF, Ehrlich has executed this Agreement and the Company
has caused this Agreement to be executed as of the date set forth above.
PSC INC.
Attest:
By:
L. Michael Hone, President
Robert S. Ehrlich