EXHIBIT 10.21
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT is entered into as of July 1, 1999 (the "EFFECTIVE DATE"),
by and between AMERICAN MICRO COMPUTER CENTER, INC., a Florida corporation (the
"COMPANY"), and XXXX X. XXXXXXXXX (the "EMPLOYEE"). All capitalized terms used
in this Agreement and not otherwise defined herein shall have the meanings
assigned to them in the Acquisition Agreement (as defined herein).
RECITALS. Pursuant to a Merger Agreement dated as of June 29, 1999 (the
"Merger Agreement"), the Company is the surviving corporation of a merger with
American Surgical Supply Corp. of Florida d/b/a American Micro Computer Cener
("AMCC"). Employee's participation in the business of the Company is essential
to the Company's success. The parties wish to provide for the employment of
Employee by the Company from and after the date hereof, and to restrict the
ability of Employee to compete with the Company, all on the terms and conditions
herein set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT. Subject to Section 3 below, the Company hereby employs
Employee for a term of two (2) years (the "EMPLOYMENT TERM"), commencing on the
Effective Date, to serve as President of the Company and to perform such
services and duties as are consistent with such position. Employee hereby
accepts such employment. During the term of his employment hereunder, except
with respect to Employee's duties as Co-President and Co-Chairman of European
Micro Holdings, Inc., a Nevada corporation and parent corporation of the Company
("EMCC"), Employee shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability to perform his duties hereunder, and Employee shall not engage in any
venture or activity which materially interferes with Employee's performance of
his duties hereunder.
2. COMPENSATION AND BENEFITS. During the Employment Term, the Company
shall pay Employee the compensation and other amounts set forth below.
2.1. SALARY. The Company shall pay Employee a salary ("SALARY") of
ONE-HUNDRED-FOUR THOUSAND DOLLARS ($104,000) per annum during the Employment
Term, payable in installments according to the Company's regular payroll
practices and subject to such deductions as may be required by law.
2.2. BENEFITS. Employee shall receive: (i) a Company automobile; (ii)
the employee benefits and perquisites provided by the Company to its executive
officers from time-to-time, which shall in any case be consistent with EMCC's
policies relating to subsidiary compensation and benefit plans; and (ii)
reimbursement for reasonable and necessary out-of-pocket expenses incurred in
the performance of his duties hereunder, including but not limited to travel and
entertainment expenses (such expenses shall be reimbursed by the Company, from
time to time, upon presentation of appropriate receipts therefor).
3. TERMINATION.
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3.1. Employee's employment pursuant to this Agreement shall be
terminated by the first to occur of the following events.
(a) The death of Employee.
(b) The Complete Disability of Employee. "COMPLETE DISABILITY"
as used herein shall mean the inability of Employee, due to illness, accident or
any other physical or mental incapacity, to perform the services provided for in
this Agreement for an aggregate of one-hundred-twenty (120) days within any
period of twelve (12) consecutive months during the term hereof, as certified by
a licensed competent physician ("FIRST PHYSICIAN"). In the event that either
party disputes the First Physician's determination of the Employee's disability,
such party (the "OBJECTING PARTY") shall so notify the other party (the "OTHER
PARTY") in writing within ten (10) days after receipt of the First Physician's
certification of disability ("NOTICE OF DISPUTE"). For a period of fifteen (15)
days following the Other Party's receipt of the Notice of Dispute, the parties
shall cause a licensed physician selected by the Objecting Party (the "RECORD
PHYSICIAN") and the First Physician to attempt to agree on whether the Employee
is completely disabled within the meaning of this section. If after such fifteen
(15) day period no agreement is reached, the dispute shall be resolved by an
independent licensed physician jointly selected by the First Physician and
Second Physician (the "INDEPENDENT PHYSICIAN"), whose determination of
disability, or absence thereof, shall be final and binding upon the parties.
Employee shall be reasonably available to be examined by each of the physicians
selected hereunder. Each party shall pay the fees of the physician appointed by
him. If the Independent Physician agrees with Employee's position on disability,
the Company shall pay the fees and expenses of the Independent Physician. If the
Independent Physician does not agree with Employee's position on disability, the
Employee shall pay the fees and expenses of the Independent Physician.
(c) The resignation of Employee. Employee may resign his
employment at any time upon three (3) months' prior written notice.
(d) The discharge of Employee by the Company for Cause. "Cause"
as used herein shall mean:
(i) illegal drug use or alcohol abuse, as determined by the
Company after investigation, notice of the charge to Employee and after allowing
Employee an opportunity to explain the conduct in question;
(ii) conviction of a felony or a crime involving moral
turpitude;
(iii) acts of fraud by Employee against the Company or its
affiliates, or in connection with the performance of his duties hereunder, as
determined by the Company after investigation, notice of the charge to Employee
and after allowing Employee an opportunity to dispute the charge in question; or
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(iv) the Employee's willful failure or refusal to comply
with the provisions of this Agreement or to perform Employee's duties and
obligations under this Agreement (a "DEFAULT"); provided, however, that in the
case of this Subsection (iv), termination for "Cause" shall occur only if the
Company has given written notice of the Default to Employee and Employee has
failed to cure the Default in question during a period of seven (7) days after
the date of Employee's receipt of such notice.
3.2. Upon any termination pursuant to Section 3.1, the Company shall
be released from all obligations hereunder (except for the obligation to pay any
compensation and benefits described in Section 2 hereof which are accrued and
unpaid as of the date of termination), including, without limitation, the
obligation to compensate Employee pursuant to Section 2 hereof.
4. CONFIDENTIALITY/COVENANT AGAINST UNFAIR COMPETITION.
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4.1. The Company and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "CONFIDENTIAL INFORMATION" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 4.1, including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two (2) years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
any person, firm or corporation any confidential information regarding the
clients, customers, product sources or business practices of the Company
acquired by the Employee during his employment by the Company, without the prior
written consent of the Company.
4.2. Employee agrees that during the Employment Term and for a period
of two (2) years following the termination of his employment (for any reason),
he will not, for his own account or jointly with another, directly or
indirectly, for or on behalf of any individual, partnership, corporation, or
other legal entity, as principal, agent or otherwise:
(i) own, control, manage, be employed by, consult with, or
otherwise participate in, a business involved within the Trade Area (as
hereinafter defined) in: (A) the wholesale distribution of computers, computer
products, peripherals, and related parts, components and equipment; or (B) any
other business activity which competes with the business conducted by the
Company or any of their subsidiaries at any time during the one (1) year
preceding the date of such termination (the activities described in this clause
(i) are hereinafter referred to collectively as the "BUSINESS");
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(ii) solicit or induce, or in any manner attempt to solicit,
any person employed by EMCC or the Company or any of their subsidiaries to leave
such employment, whether or not such employment is pursuant to a written
contract and whether or not such employment is at will, or hire any person who
has been employed by EMCC or the Company or any of their subsidiaries at any
time during the six (6) month period preceding such hiring (except that Employee
shall not be prohibited from hiring any person terminated by EMCC or the Company
without cause, so long as such person is not solicited or hired until after his
or her termination by EMCC or the Company); or
(iii) use or disclose any trade secrets or confidential
information concerning the Business or any segment thereof Trade secrets and
confidential information concerning the Business shall include, but not be
limited to, (1) lists of names and addresses of customers and suppliers of the
Company or its subsidiaries, and (2) software and computer programs, market
research and data bases, sources of leads and methods of obtaining new business,
and services employed by the Company, EMCC or their subsidiaries in the Business
or any segment thereof.
4.3. As used herein, the term "TRADE AREA" shall mean the United
States and any other geographic area in which the Company conducted any
significant business activities within the twelve (12) month period prior to the
termination of this Agreement.
4.4. Employee recognizes the importance of the covenant contained in
this Section 4 and acknowledges that, based on his past experience and training
as an executive of the Company and the projected expansion of the Company's
business, the restrictions imposed herein are: (i) reasonable as to scope, time
and area; (ii) necessary for the protection of the Company's legitimate business
interests, including without limitation, the Company's trade secrets, goodwill,
and its relationship with customers and suppliers; (iii) not unduly restrictive
of any Employee's rights as an individual; and (iv) supported by adequate
consideration. Employee acknowledges and agrees that the covenants contained in
this Section 4 are essential elements of this Agreement and that but for these
covenants, EMCC would not have agreed to acquire the Company Common Stock or
enter into this Agreement. Such covenants shall be construed as agreements
independent of any other provision of this Agreement. The existence of any claim
or cause of action against the Company by Employee, whether predicated on the
breach of this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants contained in this Section 4.
4.5. If Employee commits a breach or threatens to commit a breach of
any of the provisions of this Section 4, the Company shall have the right and
remedy, in addition to any others that may be available, at law or in equity, to
have the provisions of this Section 4 specifically enforced by any court having
equity jurisdiction, through injunctive or other relief (without any bond or
security being required to be posted), it being acknowledged that any such
breach or threatened breach will cause irreparable injury to the Company, the
amount of which will be difficult to determine, and that money damages will not
provide an adequate remedy to the Company.
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4.6. If any covenant contained in this Section 4, or any part thereof,
is hereafter construed to be invalid or unenforceable, the same shall not affect
the remainder of the covenants, which shall be given full effect, without regard
to the invalid portions, and any court having jurisdiction shall have the power
to reduce the duration, scope and/or area of such covenant and, in its reduced
form, said covenant shall then be enforceable. If Employee breaches the
covenants set forth in this Section 4, the running of the non-compete period
described herein (but not his obligation) shall be tolled for so long as such
breach continues. The provisions of this Section 4 shall survive the expiration
and termination of this Agreement, and the termination of Employee's employment
hereunder.
5. COMPANY PROPERTY.
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5.1. The Company shall be the sole owner of all products and proceeds
of the Employee's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, programs and other intellectual properties that the Employee may
acquire, obtain, develop or create in connection with and during the term of the
Employee's employment hereunder, free and clear of any claims by the Employee
(or anyone claiming under the Employee) of any kind or character whatsoever
(other than the Employee's right to receive compensation hereunder). The
Employee shall, at the request of the Company, execute such assignments,
certificates or other instruments as the Company may from time to time deem
necessary or desirable to evidence, establish, maintain, perfect, protect,
enforce or defend its right, title and interest in or to any such properties.
Upon the termination of the Employee's employment for any reason whatsoever, all
documents, records, notebooks, equipment, price lists, specifications, programs,
customer and prospective customer lists and other materials which refer or
relate to any aspect of the Business which are in the possession of the Employee
(including all copies thereof), shall be promptly returned to the Company.
5.2. The Employee agrees that all processes, technologies and
inventions ("INVENTIONS"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by the Company shall belong to the Company,
provided that such Inventions grew out of the Employee's work with the Company,
are related in any manner to the Business or are conceived or made on the
Company's time or with the use of the Company's facilities or materials. The
Employee shall (i) promptly disclose such Inventions to the Company; (ii) assign
to the Company, without additional compensation, all patent and other rights to
such Inventions for the United States and foreign countries; (iii) sign all
papers necessary to carry out the foregoing; and (iv) given testimony in support
of his inventorship.
6. SUCCESSORS. This Agreement is personal to Employee and without the
prior written consent of the Company shall not be assignable by Employee. This
Agreement is not assignable by the Company except in connection with the sale of
all or substantially all of the Company's assets. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
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7. MISCELLANEOUS.
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7.1. MODIFICATION AND WAIVER. Any term or condition of this Agreement
may be waived at any time by the party hereto that is entitled to the benefit
thereof; provided, however, that any such waiver shall be in writing and signed
by the waiving party, and no such waiver of any breach or default hereunder is
to be implied from the omission of the other party to take any action on account
thereof a waiver on one occasion shall not be deemed to be a waiver of the same
or of any other breach on a future occasion. This Agreement may be modified or
amended only by a writing signed by both parties hereto.
7.2. GOVERNING LAW. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Florida. Any dispute, controversy, or question of interpretation arising
under, out of, in connection with, or in relation to this Agreement or any
amendments hereof, or any breach or default hereunder, shall be resolved by
litigation as provided in Section 11.4 of the Acquisition Agreement.
7.3. TAX WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
7.4. SECTION CAPTIONS. Section and other captions contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
7.5. SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
7.6. INTEGRATED AGREEMENT. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof, and supersedes any other employment agreements executed before
the date hereof. There are no agreements, understandings, restrictions,
representations, or warranties among the parties other than those set forth
herein or herein provided for.
7.7. INTERPRETATION. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision. For purposes of this Agreement: "herein,"
"hereby," "hereunder," "herewith," "hereafter," and "hereinafter" refer to this
Agreement in its entirety, and not to any particular Section or subsection. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
instrument.
7.8. NOTICES. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon receipt if delivered in person or by facsimile transmission
(with confirmation transmission), or upon the expiration of four (4) days after
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the date sent, if sent by Federal Express (or similar overnight courier service)
to the parties at the following addresses:
If to Employee: Xxxx X. Xxxxxxxxx
0000 X.X. 000xx Xxxxxx
Xxxx X-00
Xxxxx, Xxxxxxx 00000
If to the Company: c/o Technology Express
000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X.Xxxxxxx, Co-President
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Notices may also be given in any other manner permitted by law, effective
upon actual receipt. Any party may change the address to which notices,
requests, demands or other communications to such party shall be delivered or
mailed by giving notice thereof to the other parties hereto in the manner
provided herein. Any notice may be given on behalf of a party by its counsel.
7.9. NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS WHETHER VERBAL
OR WRITTEN OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
7.10. ATTORNEYS' FEES. In the event of any litigation arising under
the terms of this Agreement, the prevailing party or parties shall be entitled
to recover its or their reasonable attorneys' fees and court costs from the
other party or parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
COMPANY:
AMERICAN MICRO COMPUTER CENTER, INC.
By: /s/ Xxxxx X.Xxxxxxx
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Name: Xxxxx X.Xxxxxxx
Title: President
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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