EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 1st day of July, 1996 between HERTZ
TECHNOLOGY GROUP, INC., a Delaware corporation (the "Company") and I. MARILYN
HERTZ ("Hertz"). Except where the context indicates otherwise, the term Company
shall include the Company and any subsidiary.
1. Period.
Subject to the terms and conditions hereof, the term of employment of
Hertz under this Agreement shall be for the period (the "Employment Period")
commencing on the effective date of the Company's initial public offering (the
"Commencement Date") and terminating on the expiration of five (5) years from
such date, unless sooner terminated by the death of Hertz or as provided in
Paragraphs 4, 5 or 6 hereof.
2. Duties and Responsibilities. The Company shall employ Hertz and Hertz
accepts such employment as a senior executive during the Employment Period. She
shall oversee the marketing and promotional activities on behalf of the Company,
be in charge of human resources and shall coordinate the Company's activities
and participation at trade shows. She shall report to and be subject to the
direction of the Chief Executive Officer and the Board of Directors and shall
perform such duties commensurate with her title and position as may be assigned
to her from time to time by the Board of Directors. During the Employment
Period, Hertz shall devote her full
time, energy, skill and attention to the businesses of the Company and shall
perform her duties in a diligent, trustworthy, loyal and businesslike manner.
3. Compensation and Benefits.
(a) Hertz' base compensation shall be at the annual rate of $75,000,
payable in regular installments in accordance with the Company's practice for
its executives, less applicable withholding for income and employment taxes as
required by law and other deductions to which Hertz shall agree.
(b) Hertz shall be entitled to such increase in base compensation or
bonuses as and when determined by the Board of Directors.
(c) Except as otherwise provided herein, Hertz shall be entitled to
participate, to the extent she qualifies, in any bonus or other incentive
compensation, profit-sharing or retirement plans, life or health insurance plans
or other benefit plans maintained by the Company, upon such terms and conditions
as are made available to executives of the Company, generally. Hertz shall also
be entitled to the use of a luxury automobile.
(d) Hertz shall be entitled to reimbursement of all reasonable,
ordinary and necessary business related expenses incurred by him in the course
of her duties and upon submission of appropriate documentation in accordance
with the Company's procedures.
(e) Hertz shall be entitled to four full weeks of paid vacation during
each calendar year which shall be taken in accordance with the procedures of the
Company in effect from time to time.
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(f) Hertz shall be entitled to disability benefits and medical
insurance at the same level as now provided by the Company or at such higher
levels as the Company may hereinafter provide for other executives or employees
of the Company.
4. Termination in Case of Death or Disability. In case of a Disability,
which for this purpose shall mean that as a result of illness or injury, Hertz
is unable substantially to perform her duties hereunder for a period of at least
one hundred eighty (180) consecutive days, the Company may terminate Hertz's
employment hereunder upon giving Hertz at least thirty (30) days' written notice
of termination; provided, however, that if Hertz is eligible to receive
disability payments pursuant to a disability insurance policy paid for by the
Company, Hertz shall assign such benefits to the Company for all periods as to
which she is receiving full payment under this Agreement. This Agreement shall
terminate upon the death of Hertz.
6. Other Termination by the Company.
(a) The Company may terminate Hertz's employment for Cause (as defined
in sub-paragraph (b) below); provided, however, that the Company shall not
terminate this Agreement for reasons set forth in Section 6(b)(i) unless the
Company shall first have delivered to Hertz a notice which specifically
identifies such Cause and Hertz shall not have cured the same within thirty (30)
days after receipt of such notice (the "Cure Period").
(b) "Cause" shall mean (i) a material breach by Hertz of any of the
terms, covenants, agreements or representations set forth herein, or (ii) Hertz
willingly engaging in misconduct which is materially injurious to the Company,
monetarily or
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otherwise, including, but not limited to, engaging in any conduct which
constitutes a crime under federal, state or local laws (other than minor traffic
violations).
7. Termination by Hertz for "Good Reason". Hertz may terminate her
employment for "Good Reason" if:
(a) she is assigned, without her express written consent, any duties
inconsistent with her positions, duties, responsibilities, authority and status
with the Company as of the date hereof, or a change in her reporting
responsibilities or titles as in effect as of the date hereof; or
(b) her compensation or benefits are reduced.
8. Liquidated Damages. It is understood that if Hertz (i) shall elect to
terminate her employment for a Good Reason (as defined above) or (ii) her
employment is terminated by the Company otherwise than as provided in Section 5
and 6, Hertz will suffer damages which will be difficult to calculate.
Consequently, in the event of a termination of Hertz's employment for either of
these reasons, Hertz shall be entitled by way of liquidated damages and not as a
penalty to receive a single lump sum payment in an amount equal to the amount of
the compensation payments that, but for her termination of employment under this
Section 8, would have been payable to Hertz for the remainder of the Employment
Period or twelve (12) months, whichever is higher.
Such payment shall be made by the Company to Hertz within fifteen (15)
days following her termination of employment for the reason set forth in this
Section 8. Hertz shall not be required to mitigate the amount of any payment
provided in this
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Section 8 nor shall the amount payable under this Section be reduced by any
compensation earned by Hertz after the date of her termination of employment.
9. Confidentiality; Non-Compete.
(a) Hertz agrees that during the Employment Period, or at any time
thereafter, she will not, directly or indirectly, use for her own benefit or for
the benefit of any third party, or reveal or cause to be revealed to any person,
firm, entity or corporation, any Confidential Information (as defined herein)
which relates to the Company or its customers. Confidential Information shall
include, but not be limited to, trade secrets, supplier lists, customer lists,
intellectual property and any other information, whether or not proprietary,
which relates to the business of the Company and which otherwise is not
considered to be public information; provided, however, that the parties
acknowledge that it is not the intention of this paragraph to include within its
subject matter (i) information not proprietary to the Company, (ii) information
which is then in the public domain, or (iii) information required to be
disclosed by law.
(b) Hertz further agrees that during the Employment Period and for a
period of one (1) year thereafter, she will not, directly or indirectly, in any
manner (i) engage in any business which competes with any business conducted by
the Company, and will not, directly or indirectly, own, manage, operate, join,
control or participate in the ownership, management, operation or control of, or
be employed by or connected in any manner with any corporation, firm, entity, or
business that is so engaged unless duly authorized by written consent of the
Company; provided,
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however, that nothing herein shall prohibit Hertz from owning not more than
three (3%) percent of the outstanding stock of any publicly held corporation;
(ii) persuade or attempt to persuade any employee of the Company to leave the
employ of the Company or to become employed by any other entity; (iii) persuade
or attempt to persuade any current client or former client to reduce the amount
of business it does or intends or anticipates doing with the Company or (iv)
take any action which might divert from the Company any opportunity of which she
became aware during her employment with the Company which would be within the
scope of any of the businesses then engaged in or planned to be engaged in by
the Company.
(c) Hertz acknowledges that a violation of any of the covenants
contained in this paragraph 9 may cause irreparable injury to the Company and
that the Company will be entitled, in addition to any other rights and remedies
it may have, to injunctive relief; provided, however, that nothing contained
herein constitutes a waiver by Hertz of her rights to contest the existence of
any such violation of such covenants.
(d) In the event the covenants contained in this paragraph 9 should be
held by any court or other duly constituted judicial authority to be void or
otherwise unenforceable in any particular jurisdiction or with respect to any
particular activity, then such covenants so affected shall be deemed to have
been amended and modified so as to eliminate therefrom the particular
jurisdiction or activity as to which such covenants are so held to be void or
otherwise unenforceable, and, as to all other jurisdictions and activities
covered hereby, the terms and provisions hereof shall remain in full force and
effect.
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(e) In the event this Agreement shall be terminated, then
notwithstanding such termination, the provisions of this paragraph 9 shall
survive such termination.
10. Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be enforceable by the parties hereto, their personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. Notice. Any notice, request, instruction or other document to be given
hereunder by any party shall be in writing and shall be deemed to have been duly
given when delivered personally or five (5) days after dispatch by registered or
certified mail, postage prepaid, return receipt requested, to the party to whom
the same is so given or made:
If to the Company
addressed to: Hertz Technology Group, Inc.
325 Fifth Avenue
New York, NY 10016-5012
with a copy to: Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, NY 10022
Attn: Howard L. Weinreich, Esq.
If to Hertz to: I. Marilyn Hertz
75-08 186th
Fresh Meadow, NY 11366-1222
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12. Governing Law; Change or Termination. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in New York, and may not be
changed or terminated orally.
13. Validity. The invalidity or unenforceability of any provision of this
Agreement in any respect shall not affect the validity or enforceability of such
provision in any other respect or of any other provision of this Agreement, all
of which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date first hereinabove
written.
HERTZ TECHNOLOGY GROUP, INC.
By:_______________________________
I. Marilyn Hertz
Senior Executive officer
__________________________________
I. MARILYN HERTZ