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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of October 1,
1997 (the "Effective Date") between AmeriQuest Technologies, Inc., a Delaware
corporation with its principal offices located at 425 Privet Road, Horsham, PA
19044 ("Company"), and Alex C. Kramer, a resident of Pennsylvania ("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 and Chief
Executive Officer. Employee will report directly to the AmeriQuest Board of
Directors.
2. DUTIES. Employee will serve Company in such capacities and with such duties
and responsibilities as the President and Chief Executive Officer of Company
may from time to time determine. Employee will be bound by Company' 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 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, except for the current Partnerships of
which the Company is aware, 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.
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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 Section 3 and 4: 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 of 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, 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 ten percent (10%) 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
months 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 twelve (12) months and thereafter unless
terminated pursuant to Section 8 thereof.
6. COMPENSATION AND BENEFITS.
6.1. BASE SALARY. Company agrees to pay Employee a base salary of $
16.667 per month (or $ 200.000 annualized). Employee's salary will
be payable as earned in accordance with Company' customary payroll
practice.
6.2. PERFORMANCE BONUS. - Employee will be eligible to earn a bonus of up
to $ 229.000 (the "Performance Bonus") annually during his
employment with Company. The performance criteria and terms and
conditions relative to the Performance Bonus shall be in accordance
with the attached "Incentive Plan" (Attachment 1).
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Employment Agreement Alex C. Kramer
6.3. ADDITIONAL BENEFITS. Employee will be eligible to participate in
Company's employee benefit plans of general application,
including without limitation those plans covering profit sharing,
executive bonuses stock options, and those plans covering life,
health, an dental insurance in accordance with the rules
established for individual participation in any such plan and
applicable law. Employee shall receive such other benefits,
including vacation, holidays, and sick leave, as Company
generally provides to its employee holding similar positions as
that of Employee.
6.4. VACATION. Four (4) weeks.
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 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.
7. PROPRIETARY RIGHTS. Employee hereby agrees to execute an Employee
Confidentiality Agreement with Company in substantially the form attached
hereto as Attachment 2.
8. TERMINATION.
8.1 EVENTS OF TERMINATION. Employee's employment with the 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) six months after 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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d) If a change of control occurs and the employee's responsibilities
are reduced within the following twelve (12) months thereafter.
This termination on the part of the employee must be effected
within six (6) months of the significant reduction in
responsibilities. A "change in control" is deemed to have taken
place when any of the following events occurs: (1) shareholder
approval of a merger or consolidation of the Company with any
other corporation resulting in a change in fifty percent (50%) or
more of the total voting power of the Company; (2) shareholder
approval of a plan of complete liquidation of the Company or an
agreement for the sale or disposition of all or substantially all
of the Company" assets; or (3) any person becomes the beneficial
owner of more than fifty percent (50%) of the Company's total
outstanding securities); and such reduction in responsibilities
is not for cause. Any resignation of employment by Alex C. Kramer
as a consequence of such reduction in responsibilities will be
treated as a termination of employment without cause.
8.2 "CAUSE" DEFINED. For purposes of this Agreement, "cause" for
Employee's termination will exist any time after the happening of
one or more of the following events;
a) a failure or 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; or
g) employee's death.
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9. EFFECT OF TERMINATION.
9.1 TERMINATION FOR CAUSE. 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.
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 OR VOLUNTARY TERMINATION. In the event of
any termination of this Agreement pursuant to Section 8.1(b), the
Company shall pay Employee the compensation and benefits according
to Section 6 through the last day of the six (6) months period
following the effective date that the notice referred to in Section
8.1(b) is given.
9.3 TERMINATION WITHOUT CAUSE DUE TO CHANGE IN CONTROL. In the event of
any termination of this Agreement pursuant to Section 8.1(d), the
Company shall pay Employee the compensation and benefits according
to Section 6 through the last day of the twelve (12) months period
following the date that the notice referred to in Section 8.1(d) is
given.
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.
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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
extend that do so would not deprive one of the parties of the
substantial benefit of its bargain. Such provision shall, to the
extend allowable by the 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 to be
provided by Employee is of a special, unique, unusual,
extraordinary, and intellectual character, which give 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, restraining order and/or injunction
may be issued against Employee, in addition to any other rights and
remedies Company may have, at law equity, including without
limitation the recovery of money damages.
10.4. 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 such provision hereof shall not be taken
or held to be a waiver or 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 personal to
Employee and may not be transferred or assigned by Employee at any
time. Company may assign its rights, together with its obligations
thereunder, 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.
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10.6 WITHHOLDING. All sums payable to Employee thereunder shall be
reduced by all federal, state, local, and other withholding and
similar taxes and payments required by applicable law.
10.7 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.
10.8 AMENDMENT. This Agreement may be amended, modified, 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 permitted
under this Agreement shall be in writing and hand-delivered, sent by
Fax, 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 Fax, five (5) days after mailing if sent
by mail, and one (1) day after dispatch if sent by express courier,
to the following address, or such other addresses as any party shall
notify the other parties:
If to the Company: AmeriQuest Technologies, Inc.
425 Privet Road
Horsham, PA 19044
Fax Number: (215) 675-7027
Attention: Mr. Harold Streets
Human Resources Manager
If to the Employee: Alex C. Kramer
17 Maude Circle
Paoli, PA 19301
Fax Number: (610) 647-3743
10.10 BINDING NATURE. This Agreement shall be binding upon, and 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 reference
purposes only and shall in no way affect the meaning or
interpretation of this Agreement. In
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this Agreement, the singular includes the plural, the plural
includes 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
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 rights and obligations of the
parties hereto shall be construed in accordance with the laws of the
State of Pennsylvania, without giving effect tot he 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.
Signature: _________________________
Name: Dr. Harry Krischik
Title: Member of the Compensation
Committee
Signature: _________________________ Signature ____________________
Name: Marc Werner Name: Alex C. Kramer
Title: Member of the Compensation Title: President and CEO
Committee