EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into as of October 1,
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1995 (the "Effective Date") between AmeriQuest Technologies, Inc., a Delaware
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corporation with its principal offices located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇, a resident of
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Employee").
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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
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Employee, and Employee will serve Company as Company's Vice President
(Operational Controlling) and as primary liaison to the Executive Board of
Computer 2000 AG. Employee will report directly to ▇▇▇▇▇ ▇▇▇▇▇▇▇, Company's
Chief Executive Officer and Chairman of the Board of Directors, and ▇▇▇▇
▇▇▇▇▇▇▇, Company's President and Chief Operating Officer.
2. DUTIES. Employee will serve Company in such capacities and with such
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duties and responsibilities as the Board of Directors, Chief Executive Officer
and President 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
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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. OBLIGATION NOT TO COMPETE. Employee hereby agrees that while he is
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employed by Company (the "Restricted Period"), Employee shall not engage in or
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provide services to any business outside of the Computer 2000 group of companies
that is competitive with or detrimental to any present or contemplated business
of the 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. Each of
the following activities shall, without limitation, be deemed to constitute
engaging in business within the meaning of this Section 3: 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, employee, officer,
director, partner, consultant or in any other manner whatsoever; provided,
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however, that Employee shall retain the right to invest in or have an interest
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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.
4. TERM OF AGREEMENT. This Agreement will commence on the Effective Date,
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and continue until August 31, 1996 unless terminated earlier pursuant to Section
7 hereof.
5. COMPENSATION AND BENEFITS.
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5.1 BASE SALARY. The Company agrees to pay Employee an initial salary
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of One Hundred Fifty Thousand Dollars ($150,000) per year. Employee's salary
will be payable as earned in accordance with Company's customary payroll
practice.
5.2 ADDITIONAL BENEFITS. Employee will be eligible to participate in
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Company's employee benefit plans of general application, including without
limitation those plans covering pension and profit sharing, executive bonuses,
stock purchases, stock options, and plans covering life and disability insurance
in accordance with the rules established for individual participation in any
such plan and applicable law. Employee will receive such other benefits,
including vacation, holidays and sick leave, as the Company generally provides
to its employees holding similar positions as that of Employee.
5.3 EXPENSES. The Company will reimburse Employee for all reasonable
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and necessary expenses incurred by Employee in connection with the Company's
business, provided that such expenses are deductible to the Company, are in
accordance with the Company's applicable policy and are properly documented and
accounted for in accordance with the requirements of the Internal Revenue
Service.
6. TERMINATION.
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6.1 EVENTS OF TERMINATION. Employee's employment with the Company shall
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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 6.2 below
("Termination for Cause") as evidenced by a written notice to such
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effect sent to Employee; or
(b) three months after the effective date of a written notice sent
to Employee stating that the Company is terminating his employment,
without cause, which notice can be given by the Company at any time
after the Effective Date at the Company's sole discretion, for any
reason or for no reason ("Termination Without Cause"); or
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(c) three months after the effective date of a written notice sent
to the Company from Employee stating that Employee is electing to
terminate his employment with the Company ("Voluntary Termination").
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6.2 "CAUSE" DEFINED. For purposes of this Agreement, "cause" for
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Employee's termination will exist at any time after the happening of one or more
of the following events:
(a) unethical, dishonest, fraudulent or criminal conduct;
(b) a deliberate attempt to injure the Company;
(c) Employee's death.
7. EFFECT OF TERMINATION.
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7.1 TERMINATION FOR CAUSE. In the event of any termination of this
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Agreement pursuant to Section 6.1(a), Company shall pay Employee the
compensation and benefits otherwise payable to Employee under Section 5 through
the date of termination. Employee's rights under the Company's benefit plans of
general application shall be determined under the provisions of those plans.
7.2 TERMINATION WITHOUT CAUSE OR VOLUNTARY TERMINATION. In the event of
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any termination of this Agreement pursuant to Sections 6.1(b) or 6.1(c), Company
shall pay Employee the compensation and benefits otherwise payable to Employee
under Section 5 through the last day of the three month period following the
date that the notice referred to in Sections 6.1(b) or 6.1(c) is given.
8. MISCELLANEOUS.
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8.1 ARBITRATION. Employee and the Company shall submit to mandatory
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binding arbitration in any controversy or claim arising out of, or relating to,
this Agreement or any breach hereof, provided, however, that the Company retains
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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.
8.2 SEVERABILITY. If any provision of this Agreement shall be found by
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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.
8.3 NO WAIVER. The failure by either party at any time to require
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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
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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.
8.4 ASSIGNMENT. This Agreement and all rights hereunder are personal to
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Employee and may not be transferred or assigned by Employee at any time. The
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 the Company's
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obligations hereunder.
8.5 WITHHOLDING. All sums payable to Employee hereunder shall be reduced
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by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
8.6 ENTIRE AGREEMENT. This Agreement constitutes the entire and only
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agreement between the parties relating to employment of Employee with the
Company, and this Agreement supersedes and cancels any and all previous
contracts, arrangements or understandings with respect thereto.
8.7 AMENDMENT. This Agreement may be amended, modified, superseded,
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cancelled, renewed or extended only by an agreement in writing executed by both
parties hereto.
8.8 NOTICES. All notices and other communications required or permitted
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under this Agreement shall be in writing and hand delivered, sent by telecopier
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, three days 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.
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▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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If to Employee: ▇▇▇▇▇▇ ▇▇▇▇▇
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▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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8.9 BINDING NATURE. This Agreement shall be
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binding upon, and inure to the benefit of, the successors and personal
representatives of the respective parties hereto.
8.10 HEADINGS. The headings contained in this Agreement are for
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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.
8.11 COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original but all of which,
taken together, constitute one and the same agreement.
8.12 GOVERNING LAW. This Agreement and the rights and
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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.
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IN WITNESS WHEREOF, the Company and Employee have executed this Agreement as
of the date first above written.
"COMPANY" "EMPLOYEE"
AMERIQUEST TECHNOLOGIES, INC. ▇▇▇▇▇▇ ▇▇▇▇▇
By: By:
Name:
Title:
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
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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
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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
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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
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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
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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
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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
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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
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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
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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
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employers of the terms of this Agreement and my responsibilities hereunder.
10. NAME & LIKENESS RIGHTS, ETC. I hereby authorize the Company to use, reuse,
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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
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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
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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 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
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contract of
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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: October 1, 1995.
AMERIQUEST TECHNOLOGIES, INC.: EMPLOYEE:
By:
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Signature
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name (Please print)
Title: Chief Executive Officer Date:
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