EXHIBIT 10.09
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into as of
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September 1, 1995 (the "Effective Date") between AmeriQuest Technologies,
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Inc., a Delaware corporation with its principal offices located at 0 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx ("Company"), and Xxxx Xxxxxxx, a
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resident of Laguna Niguel, California ("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 the Company's President and Chief
Operating Officer. Employee will report directly to Xxxxx XxXxxxx, Chairman
of the Board of Directors of Company and Chief Executive Officer.
2. DUTIES. Employee will serve Company in such capacities and with
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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
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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. EXCLUSIVE SERVICE. During his employment with Company, Employee
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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
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is employed by Company (the "Restricted Period"), Employee shall not engage in
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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. 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,
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associations, companies, or corporations, whether as a principal, agent,
shareholder, employee, officer, director, partner, consultant or in any other
manner whatsoever; provided, however, that Employee shall retain the right to
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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.
5. TERM OF AGREEMENT. This Agreement will commence on the Effective
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Date, and will continue for a period of twelve months and thereafter unless
terminated pursuant to Section 8 hereof.
6. COMPENSATION AND BENEFITS.
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6.1 BASE SALARY. Company agrees to pay Employee an initial
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minimum salary of One Hundred and Ninety Thousand Dollars ($190,000.00) per
year. Employee's salary will be payable as earned in accordance with Company's
customary payroll practice.
6.2 ADDITIONAL BENEFITS. Employee will be eligible to
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participate in 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 those plans covering
life, health, and dental insurance in accordance with the rules established for
individual participation in any such plan and applicable law, provided however,
that Company will pay 100% of the premiums for Employee's (and Employee's
family) health and dental insurance. Employee will receive such other benefits,
including vacation, holidays and sick leave, as Company generally provides to
its employees holding similar positions as that of Employee.
6.3 RELOCATION BENEFITS. Company will pay all reasonable costs
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to relocate Employee from Holland to Southern California, subject to approval of
the Chief Executive Officer. Such costs shall include expenses of moving and
storing Employee's personal property and air fare for Employee and his family.
6.4 ALLOWANCES. Company will provide an allowance to Employee
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of $800.00 per month to be applied towards lease of an automobile and
insurance thereon. Company will provide an allowance to Employee of $4,000.00
per month to be applied towards the rental or purchase of a personal residence
and associated costs.
6.5 PLAN BONUS. Employee will be eligible to earn a bonus of up
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to Three Hundred and Four Thousand Dollars ($304,000.00) bonus (the "Plan
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Bonus") during his first year of employment with Company. The performance
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criteria relative to the Plan Bonus is as set forth in Exhibit A attached
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hereto.
6.6 PERFORMANCE BONUS. Employee will be eligible to earn a One
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Hundred Thousand Dollar ($100,000.00) bonus (the "Performance Bonus") upon the
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achievement of performance criteria to be established by September 30, 1995 by
the Chief Executive Officer and the Compensation Committee of the Board of
Directors and thereafter attached to hereto as Exhibit B.
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6.7 EXPENSES. Company will reimburse Employee for all
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reasonable and necessary expenses incurred by Employee in connection with
Company's business, provided that such expenses are deductible to Company, 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.
6.8 PRICE PROTECTION. It is anticipated that Employee will
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purchase a personal residence in Southern California to occupy during the term
of this Agreement and sell such residence upon the termination thereof or
shortly thereafter. For up to three months after termination of this Agreement,
Company will pay to Employee the difference, if any, by which the net proceeds
received by Employee upon sale of the Employee's residence (the "Proceeds") are
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less than the price paid by Employee for such residence, including customary
closing costs ("Cost"). Company shall not be liable to Employee for the
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amount, if any, by which such residence is damaged by earthquake or fire.
Employee agrees to take all reasonable efforts to sell the residence for the
highest possible sales price. Employee agrees that the excess, if any, of
Proceeds over Cost will be paid to Company. Proceeds and Cost will be calculated
without regard to any mortgage amount.
7. PROPRIETARY RIGHTS. Employee hereby agrees to execute an Employee
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Confidentiality Agreement with Company in substantially the form attached
hereto as Exhibit C.
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8. TERMINATION.
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8.1 EVENTS OF TERMINATION. Employee's employment with Company
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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");
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(b) three 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.
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8.2 "CAUSE" DEFINED. For purposes of this Agreement, "cause"
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for Employee's termination will exist at any time after the happening of one or
more of the following events:
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(a) a failure or a refusal to comply in any material respect
with the reasonable policies, standards or regulations of the
Company;
(b) a failure or a refusal in any material respect,
faithfully or diligently, to perform his duties determined by the
Company in accordance with this Agreement or the customary duties
of Employee's employment;
(c) unprofessional, unethical or fraudulent conduct or
conduct that materially discredits the Company or is materially
detrimental to the reputation, character or standing of the
Company;
(d) dishonest conduct or a deliberate attempt to do an
injury to the Company;
(e) Employee's material breach of a term of this Agreement;
(f) an unlawful or criminal act which would reflect badly on
the Company in the Company's reasonable judgment;
(g) Employee's death.
9. EFFECT OF TERMINATION.
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9.1 TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. In the
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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 date of termination. 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
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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 three month period following the date that the notice
referred to in Section 8.1(b) is given.
9.3 RESIGNATION AS DIRECTOR. In the event of a termination of
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this Agreement for any reason, Employee agrees to resign as a director of
Company. To insure compliance with this provision, Employee is delivering to
Company concurrently herewith, a contingent resignation in the form attached
hereto as Exhibit D.
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10. MISCELLANEOUS.
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10.1 ARBITRATION. Employee and Company shall submit to
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mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this
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Agreement or any breach hereof, provided, however, that Company retains its
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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
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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 REMEDIES. Company and Employee acknowledge that the service
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to be provided by Employee is of a special, unique, unusual, extraordinary and
intellectual character, which gives it peculiar value the loss of which cannot
be reasonably or adequately compensated in damages in an action at law.
Accordingly, Employee hereby consents and agrees that for any breach or
violation by Employee of any of the provisions of this Agreement including,
without limitation, Section 3), a restraining order and/or injunction may be
issued against Employee, in addition to any other rights and remedies Company
may have, at law or equity, including without limitation the recovery of money
damages.
10.4 NO WAIVER. The failure by either party at any time to
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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.
10.5 ASSIGNMENT. This Agreement and all rights hereunder are
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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
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Company's obligations hereunder.
10.6 WITHHOLDING. All sums payable to Employee hereunder shall
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be reduced by all federal, state, local and other withholding and similar taxes
and payments required by applicable law.
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10.7 ENTIRE AGREEMENT. This Agreement and the Employee
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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.
10.8 AMENDMENT. This Agreement may be amended, modified,
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superseded, cancelled, renewed or extended only by an agreement in writing
executed by both parties hereto.
10.9 NOTICES. All notices and other communications required or
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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 (l) 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.
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0 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxx Xxx, XX 00000
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Telecopier: (000) 000-0000
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Attention: Xxxxx XxXxxxx
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If to Employee: Xxxx Xxxxxxx
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0 Xxxxxxx Xxxx
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Xxxxxx Xxxxxx, XX 00000
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Telecopier:
10.10 BINDING NATURE. This Agreement shall be binding upon, and
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inure to the benefit of, the successors and personal representatives of the
respective parties hereto.
10.11 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.
10.12 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.
10.13 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, Company and Employee have executed this Agreement
as of the date first above written.
"COMPANY" "EMPLOYEE"
AMERIQUEST TECHNOLOGIES, INC.
XXXX XXXXXXX
By:
Name:
Title:
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EXHIBIT A
PLAN BONUS CRITERIA
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EXHIBIT B
PERFORMANCE BONUS CRITERIA
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EXHIBIT C
CONFIDENTIALITY AGREEMENT
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EXHIBIT D
CONTINGENT RESIGNATION
September 29, 1995
Board of Directors
AmeriQuest Technologies, Inc.
0 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Re: Resignation
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Dear Board of Directors:
I hereby resign as a member of the Board of Directors of AmeriQuest
Technologies, Inc. ("AQS") at such time as that certain Employment Agreement
dated as of September 1, 1995, by and between AQS and me is terminated for any
reason.
Sincerely,
Xxxx Xxxxxxx
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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.
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 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: September 1, 1995.
AMERIQUEST TECHNOLOGIES, INC.: EMPLOYEE:
By:___________________________________ ___________________________________
Signature
Name: Xxxxx XxXxxxx ___________________________________
Name (Please print)
Title: Chief Executive Officer Date:______________________________
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