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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
August 1, 1996 (the "Effective Date") between AmeriQuest Technologies, Inc., a
Delaware corporation with its principal offices located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a resident of
Miami Beach, Florida ("Employee").
In consideration of the promises and the terms and conditions set forth
in this Agreement, the parties agree as follows:
1. Position. During the term of this Agreement, Company will employ
Employee, and Employee will serve Company as the Company's President. Employee
will report directly to the Chairman of the Board of Directors of Company and
Chief Executive Officer.
2. Duties. Employee will serve Company in such capacities and with such
duties and responsibilities as the Board of Directors and Chief Executive
Officer of Company may from time to time determine. Employee will comply with
and be bound by Company's operating policies, procedures, and practices from
time to time in effect during Employee's employment. Employee will perform his
duties under this Agreement at the offices of Company, provided, that Employee
may be required to do extensive traveling in connection with the performance of
his duties hereunder. Employee hereby represents and warrants that he is free
to enter into and fully perform this Agreement and the agreements referred to
herein without breach of any agreement or contract to which he is a party or by
which he is bound.
3. Exclusive Service. During his employment with Company, Employee will
devote his full time and efforts exclusively to this employment and apply all
his skill and experience to the performance of his duties and advancing
Company's interests in accordance with Employee's experience and skills. In
addition, during his employment with Company, Employee will not engage in any
consulting activity except with the prior written approval of Company, or at the
direction of Company, and Employee will otherwise do nothing inconsistent with
the performance of his duties hereunder.
4. Obligation Not to Compete. Employee hereby agrees that while he is
employed by Company (the "Restricted Period"), Employee shall within the
territory of the United States not engage in or provide services to any business
that is competitive with or detrimental to any present or contemplated business
of Company known to Employee. Employee also agrees that, during the Restricted
Period, he shall not in any manner attempt to induce or assist others to attempt
to induce any customer or client of Company to terminate his association with
Company, nor do anything directly or indirectly to interfere with the
relationship between Company and any such persons or concerns in the territory
of the United States. Each of the following activities shall, without
limitation, be deemed to constitute engaging in business within the meaning of
this Section: to engage in, work with, have an interest or concern in, advise,
lend money to, guarantee the debts or obligations of, or permit one's name or
any party thereof to be used in connection with, an enterprise or endeavor,
either individually, in partnership, or in conjunction with any person or
persons, firms, associations, companies, or corporations, whether as a
principal, agent, shareholder.
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employee, officer, director, partner, consultant or in any other manner
whatsoever; provided, however, that Employee shall retain the right to invest in
or have an interest in entities traded on any public market or offered by any
national brokerage house, provided that said interest does not exceed one
percent (1%) of the voting control of said entity. In addition, Employee may
make passive investments in privately held entities that are determined by the
Board of Directors of Company not to be competitors of Company. Company may
elect to extend the term of this non-competition clause for a maximum period of
six month following the termination according to Section 8.1.(b)and 8.1(c)
provided that a monthly fee in the amount of the last applicable monthly base
salary is paid to Employee.
5. TERM OF AGREEMENT. This Agreement will commence on the Effective
Date, and will continue for a period of eleven months and thereafter unless
terminated pursuant to Section 8 hereof.
6. COMPENSATION AND BENEFITS.
6.1 Base Salary. Company agrees to pay Employee an initial
minimum salary of Two Hundred Thousand Dollars ($200,000.00) per year.
Employee's salary will be payable as earned in accordance with Company's
customary payroll practice. During the first year of employment, the guaranteed
portion of the bonus set forth in Section 6.4 will be paid monthly on a pro rata
basis.
6.2 Additional Benefits. Employee will be eligible to
participate in Company's employee benefit plans of general application,
including without limitation those plans covering pension and profit sharing,
executive bonuses, stock purchases in accordance with the rules established for
individual participation in any such plan and applicable law. Employee will
receive such other benefits, including twenty vacation days per year, holidays
and sick leave, as Company generally provides to its employees holding similar
positions as that of Employee. In addition, Employee will be allowed up to ten
working days of home leave. Employer will fully reimburse Employee, net of any
taxes, for the cost of life, health and dental insurance as incurred by
Employee.
6.3 Stock Options. Upon approval of the Board of Directors,
Employee will receive options to purchase 100,000 shares of Company's Common
Stock per full year of employment, fully exercisable at the end of each such
year. The exercise price of all such options shall be equal to the closing
market price of the Company's stock on the New York Stock Exchange as of
September 12, 1996.
6.4 Cash Bonus. Promptly after commencement of Employee's
employment with Company, Employee shall receive a bonus of $20,000.00. In
addition, Employee will be eligible to earn a bonus of up to One Hundred
Thousand Dollars ($100,000.00) (the "Performance Bonus") during his first year
of employment with Company, of which $40,000 shall be guaranteed. The
performance criteria relative to the Performance Bonus shall be agreed later.
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6.5 Expenses. Company will reimburse Employee for all
reasonable and necessary expenses incurred by Employee in connection with
Company's business, provided that such expenses are in accordance with Company's
applicable policy and are properly documented and accounted for in accordance
with the requirements of the Internal Revenue Service.
7. PROPRIETARY RIGHTS. Employee hereby agrees to execute an Employee
Confidentiality Agreement with Company in substantially the form attached hereto
as Exhibit A.
8. TERMINATION.
8.1 Events of Termination. Employee's employment with Company
shall terminate upon any one of the following:
(a) the Company's determination made in good faith that it is
terminating Employee for "cause" as defined under Section 8.2 below
("Termination for Cause");
(b) six months after the effective date of a written notice
sent to Employee stating that Company is terminating his employment,
without cause, which notice can be given by Company at any time after
the Effective Date at Company's sole discretion, for any reason or for
no reason; or
(c) the effective date of a written notice sent to Company
from Employee stating that Employee is electing to terminate his
employment with Company.
8.2 "Cause" Defined. For purposes of this Agreement, "cause"
for Employee's termination will exist at any time after the happening of one or
more of the following events:
(a) dishonest conduct or a deliberate attempt to do an
injury to the Company;
(b) Employee's material breach of a term of this
Agreement;
(c) an unlawful or criminal act which would reflect badly
on the Company in the Company's reasonable judgment;
(d) Employee's death.
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9. EFFECT OF TERMINATION.
9.1 TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. In the
event of any termination of this Agreement pursuant to Sections 8.1(a) or 8.1
(c), the Company shall pay Employee the compensation and benefits otherwise
payable to Employee under Section 6 through the effective date of termination as
referred to by Company or by Employee in their written notices pursuant to
Sections 8.1(a) or 8.1(c). Employee's rights under the Company's benefit plans
of general application shall be determined under the provisions of those plans.
9.2 TERMINATION WITHOUT CAUSE. In the event of any termination
of this Agreement pursuant to Section 8.1(b), the Company shall pay Employee
the compensation and benefits otherwise payable to Employee under Section 6
through the last day of the six month period following the effective date of the
notice referred to in Section 8.1(b).
10. MISCELLANEOUS.
10.1 ARBITRATION. Employee and Company shall submit to
mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof, provided, however, that
Company retains its right to, and shall not be prohibited, limited or in any
other way restricted from, seeking or obtaining equitable relief from a court
having jurisdiction over the parties. Such arbitration shall be conducted in
accordance with the commercial arbitration rules of the American Arbitration
Association in effect at that time, and judgment upon the determination or
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
10.2 SEVERABILITY. If any provision of this Agreement shall be
found by any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive such provision to the extent that
it is found to be invalid or unenforceable and to the extent that to do so would
not deprive one of the parties of the substantial benefit of its bargain. Such
provision shall, to the extent allowable by law and the preceding sentence, be
modified by such arbitrator or court so that it becomes enforceable and, as
modified, shall be enforced as any other provision hereof, all the other
provisions continuing in full force and effect.
10.3 NO WAIVER. The failure by either party at any time to
require performance or compliance by the other of any of its obligations or
agreements shall in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by either party of a breach of any
provision hereof shall not be taken or held to be a waiver of any preceding or
succeeding breach of such provision or as a waiver of the provision itself. No
waiver of any kind shall be effective or binding, unless it is in writing and is
signed by the party against whom such waiver is sought to be enforced.
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10.4 ASSIGNMENT. This Agreement and all rights hereunder are
personal to Employee and may not be transferred or assigned by Employee at any
time. Company may assign its rights, together with its obligations hereunder, to
any parent, subsidiary, affiliate or successor, or in connection with any sale,
transfer or other disposition of all or substantially all of its business and
assets, provided, however, that any such assignee assumes Company's obligations
hereunder.
10.5 WITHHOLDING. All sums payable to Employee hereunder shall
be reduced by all federal, state, local and other withholding and similar taxes
and payments required by applicable law.
10.6 ENTIRE AGREEMENT. This Agreement and the Employee
Confidentiality Agreement constitute the entire and only agreements between the
parties relating to employment of Employee with Company, and this Agreement
supersedes and cancels any and all previous contracts, arrangements or
understandings with respect thereto.
10.7 AMENDMENT. This Agreement may be amended, modified,
superseded, canceled, renewed or extended only by an agreement in writing
executed by both parties hereto.
10.8 NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing and hand delivered, sent by
telecopier, sent by certified first class mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by
telecopier, five (5) days after mailing if sent by mail, and one (1) day after
dispatch if sent by express courier, to the following addresses, or such other
addresses as any party shall notify the other parties:
If to Company: AmeriQuest Technologies, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chairman of the Board
If to Employee: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
10.9 Binding Nature. This Agreement shall be binding upon, and
inure to the benefit of, the successors and personal representatives of the
respective parties hereto.
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10.10 HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall in no way affect the meaning or
interpretation of this Agreement. In this Agreement, the singular includes the
plural, the plural included the singular, the masculine gender includes both
male and female referents, and the word "or" is used in the inclusive sense.
10.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which, taken together, constitute one and the same agreement.
10.12 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be construed in accordance with the laws
of the State of California, without giving effect to the principles of conflict
of laws.
IN WITNESS WHEREOF, Company and Employee have executed this Agreement
as of the date First above written.
"COMPANY" "EMPLOYEE"
AMERIQUEST TECHNOLOGIES, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CHAIRMAN OF THE BOARD
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EXHIBIT A
CONFIDENTIALITY AGREEMENT
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EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
In consideration of, and as a condition of my employment with AmeriQuest
Technologies, Inc., a Delaware corporation (the "COMPANY"), I hereby represent
to the Company and the Company and I agree as follows:
1. PURPOSE OF AGREEMENT. I understand that the Company is engaged in a
continuous program of research, development, production, and marketing in
connection with its business and that it is critical for the Company to preserve
and protect its "Proprietary Information" (as defined below), its rights in
"Inventions" (as defined below), and in all related intellectual property
rights. Accordingly, I am entering into this Agreement as a condition of my
employment with the Company, whether or not I am expected to create inventions
of value for the Company.
2. DISCLOSURE OF INVENTIONS. I will promptly disclose in confidence to
the Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works, and trade secrets ("INVENTIONS") that I make or
conceive or first reduce to practice or create, either alone or jointly with
others, during the period of my employment, whether or not in the course of my
employment, and whether or not such Inventions are patentable, copyrightable or
protectible as trade secrets.
3. WORK FOR HIRE; ASSIGNMENT OF INVENTIONS. I acknowledge that any
copyrightable works prepared by me within the scope of my employment are "works
for hire" under the Copyright Act and that the Company will be considered the
author and owner of such copyrightable works. I further acknowledge that all
Inventions that (a) are developed using equipment, supplies, facilities or trade
secrets of the Company, (b) result from work performed by me for the Company, or
(c) relate to the Company's business or current or anticipated research and
development, will be the sole and exclusive property of the Company and are
hereby irrevocably assigned by me to the Company.
4. ASSIGNMENT OF OTHER RIGHTS. In addition to the foregoing assignment
of Inventions to the Company, I hereby irrevocably transfer and assign to the
Company: (a) all worldwide patents, patent applications, copyrights, mask works,
trade secrets, and other intellectual property rights in any Invention; and (b)
any and all "Moral Rights" (as defined below) that I may have in or with respect
to any Invention. I also hereby forever waive and agree never to assert any and
all Moral Rights I may have in or with respect to any Invention, even after
termination of my work on behalf of the Company. "MORAL RIGHTS" means any rights
to claim authorship of an Invention, to object to or prevent the modification.
of any Invention, or to withdraw from circulation or control the publication or
distribution of any Invention, and any similar right, existing under judicial or
statutory law of any country in the world, or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right."
5. ASSISTANCE. I will assist the Company in every proper way to obtain
for the Company and enforce patents, copyrights, mask work rights, trade secret
rights, and other legal protections for the Company's Inventions in any and all
countries. I will execute any documents that the Company may reasonably request
for use in obtaining or enforcing such patents, copyrights, mask work rights,
trade secrets, and other legal protections. My obligations under this paragraph
will continue beyond the termination of my employment with the Company, provided
that the Company will compensate me at a reasonable rate after such termination
for time or expenses actually spent by me at the Company's request on such
assistance. I appoint the Secretary of the Company as my attorney-in-fact to
execute documents on my behalf for this purpose.
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6. PROPRIETARY INFORMATION. I understand that my employment by the
Company creates a relationship of confidence and trust with respect to any
information of a confidential or secret nature that may be disclosed to me by
the Company that relates to the business of the Company or to the business of
any parent, subsidiary, affiliate, customer or supplier of the Company or any
other party with whom the Company agrees to hold information of such party in
confidence ("PROPRIETARY INFORMATION"). Such Proprietary Information includes
but is not limited to Inventions, marketing plans, product plans, business
strategies, financial information, forecasts, personnel information, and
customer lists.
7. CONFIDENTIALITY. At all times, both during my employment and after
its termination, I will keep and hold all such Proprietary Information in strict
confidence and trust, and I will not use or disclose any of such Proprietary
Information without the prior written consent of the Company, except as may be
necessary to perform my duties as an employee of the Company for the benefit of
the Company. Upon termination of my employment with the Company, I will promptly
deliver to the Company all documents and materials of any nature pertaining to
my work with the Company, and I will not take with me any documents or materials
or copies thereof containing any Proprietary Information.
8. NO BREACH OF PRIOR AGREEMENT. I represent that my performance of all
the terms of this Agreement and my duties as an employee of the Company will not
breach any invention assignment, proprietary information, or similar agreement
with any former employer or other party. I represent that I will not bring with
me to the Company or use in the performance of my duties for the Company any
documents or materials of a former employer that are not generally available to
the public or have not been legally transferred to the Company.
9. NOTIFICATION. I hereby authorize the Company to notify my actual or
future employers of the terms of this Agreement and my responsibilities
hereunder.
10. NAME & LIKENESS RIGHTS, ETC. I hereby authorize the Company to use,
reuse, and to grant others the right to use and reuse, my name, photograph,
likeness (including caricature), voice, and biographical information, and any
reproduction or simulation thereof, in any media now known or hereafter
developed (including but not limited to film, video, and digital or other
electronic media), both during and after my employment, for whatever purposes
the Company deems necessary.
11. INJUNCTIVE RELIEF. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer irreparable
harm and will therefore be entitled to injunctive relief to enforce this
Agreement.
12. GOVERNING LAW; SEVERABILITY. This Agreement will be governed and
interpreted in accordance with the internal laws of the State of Florida,
without regard to or application of choice-of-law rules or principles. In the
event that any provision of this Agreement is found by a court, arbitrator, or
other tribunal to be illegal, invalid or unenforceable, then such provision
shall not be
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voided, but shall be enforced to the maximum extent permissible under applicable
law, and the remainder of this Agreement shall remain in full force and
effect.
13. NO DUTY TO EMPLOY. I understand that this Agreement does not constitute
a contract of employment or obligate the Company to employ me for any stated
period of time. This Agreement shall be effective as of the first day of my
employment by the Company, namely: August 1, 1996.
AMERIQUEST TECHNOLOGIES, INC.: EMPLOYEE:
BY:/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/
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Signature
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
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Title: Chairman of the Board
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Date:
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