Exhibit 10.66
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of the 4th day of
December, 2000, by and among VERTEX INTERACTIVE, INC., a New Jersey corporation
(the "Employer") and Donald W. Rowley (the "Employee") an individual residing at
65 Ridgefield Road, Wilton, CT 06897.
W I T N E S S E T H:
WHEREAS, the Employer desires to obtain the services of Employee, and
Employee desires to be employed by the Employer upon the terms and conditions
hereinafter set forth;
NOW, WHEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment: Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions
hereinafter set forth.
2. Duties: Employee shall perform such duties as Executive Vice President
with responsibility for finance, human resources, internal IT, and
contract administration.
The Employee shall report to the Co-Chairmen and Co-Chief Executive
Officers. Employee's duties shall be principally those customary to
positions having such a title and shall include, without limitation,
deployment of the corporate strategy, the day-to-day operations,
development of business strategies, plans and budgets, and such other
duties as reasonably requested from time to time, provided, however,
that all duties assigned to Employee hereunder shall be commensurate
with the skill and experience of Employee. Employee agrees to devote
100% of his professional time, attention, skills, benefits and best
efforts to the performance of his duties hereunder and to the promotion
of the business and interests of Employer.
3. Term: The term of Employee's employment hereunder shall commence on
December 4, 2000 and shall continue, unless earlier terminated pursuant
to Section 7 below (the "Termination").
4. Compensation: As compensation for his services rendered under this
Agreement, Employee shall be entitled to receive the following:
(a) Salary: Employee shall be paid an annual salary of $250,000,
payable in semi-monthly installments in accordance with
Employer's general payroll practices (the "base salary").
Employee's salary shall be subject to review on an annual
basis.
(b) Expenses: Employer shall reimburse Employee for all reasonable
and necessary out-of-pocket travel and other expenses that are
properly documented, approved and within Employer's policies
and incurred by Employee in rendering services required under
the terms of this Agreement, promptly, and in no event more
than thirty (30)
business days after submission, on a monthly basis, of a
detailed statement of such expenses and reasonable
documentation.
(c) Benefits: Employee shall be entitled to participate in the
group benefit plans as Employer may provide to its other
employees at comparable salaries and responsibilities to those
of Employee.
(d) Vacation: Employee shall be entitled to 4 weeks (20 business
days) paid vacation for each year of this Agreement.
(e) Bonus: Employee shall be eligible for a bonus based upon
Employee's performance as mutually agreed to between Employer
and Employee annually. Employee shall be eligible for a bonus
target of 100% of Employee's base salary provided the Employee
meets the bonus performance criteria and Employer revenue and
profitability permit bonus payments.
(f) Stock Options: Employer grants Employee the right, privilege
and option to purchase up to 200,000 shares of common stock,
under the Employer's Incentive Stock Option Plan with an
exercise price at the closing price on the date of grant
approved by the Board of Directors. These options, if
approved, shall vest equally over five years on the first five
anniversaries of the date of grant. Options expire 10 years
from the date of grant subject to early termination as
described in Section 7.
The compensation set forth in this Section 4 will be the sole
compensation payable to Employee and no additional compensation or fee
will be payable by Employer to Employee by reason of any benefit gained
by the Employer directly or indirectly through Employee's efforts on
Employer's behalf, nor shall Employer be liable in any way for any
additional compensation or fee unless Employer shall have expressly
agreed thereto in writing.
5. Confidentiality; Covenants Not to Compete:
(a) Acknowledgement of Proprietary Interest: Employee recognizes
the proprietary interest of Employer in any Trade Secrets (as
hereinafter defined) of Employer. Employee acknowledges and
agrees that any and all Trade Secrets of Employer, learned by
Employee during the course of his employment by Employer or
otherwise, whether developed by Employee alone or in
conjunction with others or otherwise, shall be and are the
property of Employer. As used herein, "Trade Secrets" means
all non-public confidential and proprietary information of
Employer, including, without limitation, information derived
from reports, investigations, experiments, research, work in
progress, drawings, designs, plans, proposals, codes,
software, source codes, financial projections, cost summaries,
pricing formulas, company owned databases, and company owned
and developed marketing and sales plans. "Trade Secrets" also
includes confidential information related to the business,
products or sales of Employer or Employer's customers.
(b) Covenants Not to Divulge Trade Secrets: Employee acknowledges
and agrees that Employer is entitled to prevent the disclosure
of Trade Secrets of Employer. As a portion of the
consideration for the employment of Employee and for the
compensation being paid to Employee by Employer, Employee
agrees at all times during the term of this Agreement and for
one (1) years thereafter to hold in strictest confidence and
not to disclose or allow to be disclosed to any person, firm,
or corporation, other than to persons engaged by Employer to
further the business of Employer, Trade Secrets of Employer,
without the prior written consent of
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Employer, including Trade Secrets developed by Employee.
Notwithstanding the foregoing, Employee shall not be obligated
to keep secret and not to disclose or allow to be disclosed
knowledge or information (i) which has become generally known
to the public through no wrongful act of Employee; (ii) which
has been rightfully received by Employee from a third party
which to Employee's knowledge was received without restriction
on disclosure and not in violation of any confidentiality
obligation of said third party; (iii) which has been approved
for release without restriction as to use or disclosure by
written authorization of Employer; or (iv) which has been
disclosed pursuant to a requirement of a governmental agency
or of law without similar restrictions or other protections
against public disclosure, or which disclosure is required by
operation of law. Without limiting the generality of the
foregoing, Employee agrees to affirmatively take such
precautions as Employer may reasonably request or Employee
reasonably believes are appropriate to prevent the disclosure,
copying or use of any of the computer software programs, data
bases or other such information pertaining to Trade Secrets
now existing or hereafter developed to any person or for any
purpose not specifically authorized by Employer.
(c) Return of Materials at Termination: In the event of any
termination of this Agreement for any reason whatsoever,
Employee will promptly deliver to Employer all documents, data
and other information pertaining to Trade Secrets. Employee
shall not take any documents or other information, or any
reproduction or excerpt thereof, containing or pertaining to
any Trade Secrets.
(d) Competition During the Term of this Agreement: Employee agrees
that during the term of this Agreement, neither he, nor any
company controlled by Employee (an "Affiliate"), will directly
or indirectly compete with Employer in any way, and that he
will not act as an officer, director, employee, consultant,
shareholder, lender or agent of any entity which is engaged in
any business of the same nature as, or in competition with,
the business in which Employer is now engaged or other related
business in which Employer becomes engaged during the term of
this Agreement; provided, however, that this Section 5(d)
shall not prohibit Employee or any Affiliate from purchasing
or holding an aggregate equity interest of up to 1%, so long
as Employee and Affiliates combined do not purchase or hold an
aggregate equity interest of more than 5%, in any business in
competition with Employer. Furthermore, Employee agrees that
during the term of this Agreement, he will undertake no
planning for the organization of any business activity
competitive with the work he performs as an Employee of
Employer and Employee will not combine or conspire with any
Employees of Employer for the purpose of organization of any
such competitive business activity.
(e) Competition Following Termination of this Agreement: Employee
undertakes that for a period terminating one (1) year from the
date of termination of employment with Employer, Employee
shall not without the prior written consent of Employer,
directly or indirectly, whether alone or in conjunction with,
or on behalf of any other business, concern or person and
whether as a principal, shareholder, director, employee,
agent, consultant, partner or otherwise:
(i) canvass, solicit, or approach or cause to be
canvassed, solicited or approached for orders any
person or entity who was a customer of Employer
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or its affiliates for the supply of goods and/or
services which are competitive with those supplied by
the Employer or its affiliates; or
(ii) deal or contract with any person or entity who was
customer or proposed customer of the Employer or its
affiliates for the purpose of supplying goods and/or
services which are competitive with those supplied by
the Employer or its affiliates; or
(iii) solicit or entice away any supplier to the Employer
or its affiliates who has supplied goods and/or
services to Employer or its affiliates, if such
solicitation or enticement causes or could reasonably
be expected to cause such supplier to cease
supplying, reduce its supply of, or alter the terms
upon which it is supplying those goods and/or
services to Employer or its affiliates; or
(iv) work for or be engaged, concerned, or (save as the
holder of shares or other securities in any company
which is quoted, listed or otherwise dealt with on a
recognized stock exchange or other securities market
and which confers not more than 5% of the votes which
could be cast at general meeting of the company
concerned) interested in any trade or business which
competes in the United States with any trade or
business carried on by the Employer or its
affiliates; or
(v) solicit or entice away from Employer or its
affiliates any Employee of Employer in a senior or
key managerial, supervisory, technical, sales,
marketing, or administrative post for employment in a
trade or business carried on by the Employer or its
affiliates; or
(vi) assist for compensation or finance any person or
entity which competes with Employer; or
(vii) use in connection with any trade or business any name
which includes the name of Employer or its
affiliates; or
(viii) assist or procure any other person to do any of the
foregoing things.
Employer and Employee agree that each of the undertakings set out in
each of the preceding sections are separate and severable and
enforceable accordingly, and if any one or more of such undertakings or
part of an undertaking is held to be against the public interest or
unlawful or in any way an unreasonable restraint on trade, the
remaining undertakings or remaining part of the undertaking shall
continue in full force and effect and shall bind Employee.
6. Prohibition of Disparaging Remarks: Employee shall, during the terms of
this Agreement, refrain from making disparaging, negative or other
similar remarks concerning Employer or Employer, any of their
subsidiaries or other affiliated companies, to any third party that
causes substantial harm to Employer or Employer, except to the extent
that Employee is required to make such remarks (a) by applicable law or
regulation or judicial or regulatory process, or (b) in or in
connection with any pending or threatened litigation relating to this
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Agreement or any transaction contemplated hereby or thereby. In view of
the difficulty of determining the amount of damages that may result to
the Employer from the breach of the provision of this Section 6, it is
the intent of the Employer that, in addition to monetary damages, the
Employer shall have the right to prevent any such breach in equity or
otherwise, including, without limitation, by means of injunctive
relief.
7. Termination: This Agreement and the employment relationship created
hereby shall terminate upon the occurrence of any of the following
events:
(a) thirty days written notice from Employer to Employee or
Employee to Employer;
(b) the death of Employee;
(c) the "disability" (as hereinafter defined) of Employee;
(d) written notice to Employee from Employer of termination for
"just cause" (as hereinafter defined).
For purposes of this Section 7, the "disability" of Employee shall mean
Employee's inability because of mental or physical illness or capacity,
to perform his duties under this Agreement for a continuous period of
120 days, or for 120 days out of any 150-day period. For purposes of
this Section 7, "just cause" shall mean (i) the failure of Employee to
diligently or effectively perform his duties under this Agreement, (ii)
the commission by Employee of any act involving moral turpitude or the
commission by Employee of any act or the suffering by Employee of any
occurrence or state of facts which renders Employee incapable of
performing his duties under this Agreement, or adversely affects or
could reasonably be expected to adversely affect Employer's business
reputation, or (iii) the violation by Employee of lawful material
instructions or material policies established by Employer with respect
to the operation of its business and affairs or Employee's failure, in
a material respect, to carry out the reasonable instructions of the
Board of Directors of Employer.
In the event Employee is terminated without cause, then, in such event,
Employee shall be entitled to twelve (12) months base salary and bonus
as Employee's sole entitlement under this Agreement.
The compensation set forth in this Section 7 will be the sole
compensation payable to Employee and no additional compensation or fee
will be payable by Employer to Employee by reason of any benefit gained
by the Employer directly or indirectly through Employee's efforts on
Employer's behalf, nor shall Employer be liable in any way for any
additional compensation or fee unless Employer shall have expressly
agreed thereto in writing.
Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 5 and 6 shall survive any termination, for
whatever reason, of Employee's employment under this Agreement.
8. Remedies: Each party recognizes and acknowledges that in the event of
any default in, or breach of any of, the terms, conditions and
provisions of this Agreement (either actual or threatened) by the other
party, then the non-defaulting party's remedies at law shall be
inadequate. Accordingly, each party agrees that in such event, the
non-defaulting party shall have the right of specific performance
and/or injunctive relief in addition to any and all other remedies and
rights at law or in equity, and such rights and remedies shall be
cumulative.
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9. Acknowledgments: Employee recognizes and agrees that the enforcement of
any of the non-competition provisions set forth in Section 5 above by
the Employer will not interfere with Employee's ability to pursue a
proper livelihood. Employee further represents that he is capable of
pursuing a career in other industries to earn a proper livelihood.
Employee recognizes and agrees that enforcement of this Agreement is
necessary to ensure the preservation and continuity of the business and
good will of Employer. Employee agrees that due to the nature of
Employer's business, the non-competition restrictions set forth in this
Agreement are reasonable as to time and geographic area.
10. Notices: Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the
other shall be deemed to have been duly given in writing personally
delivered, by facsimile or sent by mail, registered or certified,
postage prepaid with return receipt requested, as follows:
If to Employer: Vertex Interactive, Inc.
23 Carol Street
Clifton, NJ 07014-0996
Attn: Human Resources
If to Employee: Donald W. Rowley
65 Ridgefield Road
Wilton, CT 06897
Notices delivered personally shall be deemed communicated as of actual
receipt or receipt of facsimile, mailed notices shall be deemed
communicated as of five (5) days after mailing.
11. Entire Agreement: This Agreement contains the entire agreement of the
parties hereto and supersedes all prior agreements and understandings,
oral or written, between the parties hereto. No modification or
amendment of any of the terms, conditions or provisions herein may be
made otherwise than by written agreement signed by the parties hereto.
12. Governing Law and Forum: This Agreement and the rights and obligations
of the parties hereto shall be governed, construed and enforced in
accordance with the laws of the State of New Jersey and the parties
agree to the courts of the State of New Jersey having exclusive
jurisdiction over any dispute arising out of or relating to this
Agreement.
13. Parties Bound: This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of Employer and
Employee. Employer shall have the right to assign this Agreement to its
successors, provided that such successors agree to be bound by the
terms hereof. The term "successors" shall include any person,
corporation, partnership or other entity that buys all or substantially
all of Employer's assets or all of its stock, or with which Employer
merges or consolidates. The rights, duties or benefits to Employee
hereunder are personal to him, and no such right or benefit may be
assigned by him. It is specifically agreed that this Agreement shall
survive any change in capitalization, organization or control of
Employer.
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14. Estate: If Employee dies prior to the payment of all sums owed, or to
be owed, to Employee pursuant to Section 4 above, then such sums, as
they become due, shall be paid to Employee's estate.
15. Enforceability: If, for any reason, any provision contained in this
Agreement should be held invalid in part by a court of competent
jurisdiction, then it is the intent of each of the parties hereto that
the balance of this Agreement be enforced to the fullest extent
permitted by applicable law. It is the intent of each of the parties
that the covenants not-to-compete contained in Section 5 above be
enforced to the fullest extent permitted by applicable law.
Accordingly, should a court of competent jurisdiction determine that
the scope of any covenant is too broad to be enforced as written, it is
the intent of each of the parties that the court should reform such
covenant to such narrower scope as it determines enforceable.
16. Waiver of Breach: The waiver by any party hereto of a breach of any
provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by any party.
17. Captions: The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms
or provisions hereof.
18. Other Obligations: For purposes of Section 5 above, and elsewhere
herein where appropriate, the term "Employer" shall also mean
affiliates, including subsidiaries, of Employer.
19. Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same instrument, but only one of
which need be provided.
20. Guarantee: Performance of the obligations of the Employer hereunder is
guaranteed by Employer, as evidenced by the signature of its authorized
officer below.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year below written.
EMPLOYER: EMPLOYEE:
VERTEX INTERACTIVE, INC.
By: /s/Nicholas R. H. Toms /s/Donald W. Rowley
Name: Nicholas R. H. Toms Donald W. Rowley
Title: Co-Chief Executive Officer
Date: 5/30/01
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