Exhibit 10.10
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made and entered into as of February __, 1995, by and
between SEQUOIA COMPUTER CORPORATION, a California corporation (the "Company"),
and DANA R. ALLEN ("Employee").
WITNESSETH:
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WHEREAS, Employee has been serving as an officer of Sequoia Computer
Corporation; and
WHEREAS, on November 7, 1995, the Company, the Employee, TMS, Inc. ("TMS"),
and SCC Acquisition Corp., a wholly-owned subsidiary of TMS ("SAC"), entered
into a Plan of Reorganization and Agreement of Merger (the "Merger Agreement"),
pursuant to which SAC agreed to merge with and into the Company, and the
Company would become a wholly-owned subsidiary of TMS; and
WHEREAS, the Employee is a shareholder in the Company, and will, as a
consequence of consummation of the transactions contemplated by the Merger
Agreement, become a shareholder of TMS;
WHEREAS, the Company desires to obtain the services of Employee on a full
time basis in order to preserve the continuation of the businesses of the
Company and Employee is desirous of rendering such services to same; and
WHEREAS, Employee has agreed to enter into this Agreement in order to
induce the Company to fulfill its obligations under the Merger Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the mutual promises and agreements contained in the Merger
Agreement, and other good and valuable consideration, the adequacy of which is
hereby acknowledged, the parties hereby agree as follows:
1. Employment: Duties and Acceptance
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1.1. Employment by the Company. During the Term of this Agreement,
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as hereinafter defined, the Company hereby agrees to employ Employee as
President of the Company or such other executive position as the Company's Board
of Directors may designate. During said period, Employee shall render services
to the Company on a full-time basis (serving approximately the same total number
of hours per week as Employee has previously worked for the Company).
1.2. Duties. As the President of the Company, Employee shall be
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involved in all executive activities of the Company, shall direct technological
development, product development, and sales and marketing activities, and shall
render such duties as shall be directed by the Board of Directors of the
Company.
1.3. Acceptance of Employment by Employee. Employee hereby accepts
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such employment and shall render the services described above. Employee agrees
to devote his full attention, skill and best efforts to the performance of said
duties for the Company.
1.4. Termination of Existing Contracts. Employee agrees that all
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agreements and contracts, whether written or oral, relating to the current
employment of Employee by the Company will be terminated as of the commencement
of the Term of this Agreement, as defined below.
2. Term of Employment. The term of Employee's employment under this
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Agreement (the "Term") shall commence as of the closing date of the Merger
Agreement (the "Commencement Date"), and shall continue through and expire on
the third anniversary of the Commencement Date, unless earlier terminated as
herein provided. The date at which Employee's employment is terminated under
this Agreement shall be referred to herein as the "Termination Date." The
parties hereto shall have no obligations under this Agreement unless and until
there is a closing of the Merger Agreement.
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3. Participation in Employee Benefit Plans. During the Term, Employee
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shall be permitted to participate in any group life, hospitalization or
disability insurance plan, health program, pension plan, similar benefit plan or
other so-called "fringe benefits" of the Company, which may be available to
other employees of the Company generally on the same terms as such other
employees.
4. Compensation. In consideration of the observance by Employee of the
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terms of this Agreement and the performance of his duties as set forth herein,
the Company shall pay to Employee the sum of Seventy-Five Thousand Dollars
($75,000) per year during the Term, which payments shall be payable in
accordance with the payroll policies of the Company as such are from time to
time in effect. At the end of each fiscal year of the Company, the Board of
Directors of the Company shall review the Company's performance for such year
and consider other compensation for Employee, such as a bonus payment, stock
options, stock grants or an increase in the annual salary payable during the
Term, which, in the sole judgment of the Board, may be appropriate compensatory
recognition for Employee's performance of his duties hereunder.
5. Termination. The Company has the right, at any time during the Term,
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subject to all of the provisions hereof, exercisable by serving notice,
effective no ealier than ninety (90) days from the date of notification, to
terminate the Employee's employment under this Agreement and to discharge the
Employee with or without cause. If such right is exercised, the Company's
obligation to the Employee shall be limited to the payment of unpaid Annual
Salary accrued up to the effective date specified in the Company's notice of
termination. Notwithstanding termination of this Agreement, whether by
expiration of the term or otherwise, the obligations of Section 7 hereof shall
survive such termination.
6. Sole Employment. During the Term of this Agreement, Employee shall not,
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except as set forth herein, be engaged in any other business activity whether or
not such business activity
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is pursued for gain, profit, or other pecuniary advantage. Employee may,
however, invest his assets in such form or manner as will not require his
services in the operation of the affairs of the companies in which such
investments are made.
7. Confidentiality. It is contemplated that Employee will learn of the
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Company's confidential information or confidential information entrusted to the
Company by other persons corporations or firms (collectively, "Third Parties").
The Company's confidential information includes matters not generally known
outside the Company, such as developments relating to existing and future
products and services marketed or used by the Company and also data relating to
the general business operations of the Company (e.g., concerning sales, costs,
profits, organizations, customer lists, pricing methods, etc.). During the Term
and continuing thereafter, Employee agrees not to disclose any confidential
information of the Company or of such other persons, corporations or firms to
others or to make use of its, except on the Company's behalf, whether or not
such information is produced by Employee's own efforts. Also, Employee may learn
of developments, ways of business, etc., which in themselves are generally known
but whose use by the Company is not generally known, and during the Term and
continuing thereafter, Employee agrees not to disclose to others such use,
whether or not such use is due to Employee's own efforts. All records of the
Company, including the names and addresses of its customers, are and shall
remain the property of the Company at all times during the Term and after
termination of Employee's employment for any reason with the Company. None of
such records, nor any part of them, is to be removed by Employee from the
premises of the Company either in original form or in computerized, duplicate,
or copied form, and the names, addresses, and other facts in such records are
not to be transmitted verbally, in writing, or in computerized form by Employee
except in the ordinary course of conducting business for the Company.
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8. Other Provisions.
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8.1. Notices. Any notice or other communication required or permitted
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hereunder shall be in writing and shall be delivered personally or sent by
certified, registered or express mail, postage prepaid. Any notice shall be
deemed given when so delivered personally or, if mailed, five days after the
date of deposit in the United States mail, as follows:
(i) If to the Company, to:
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Sequoia Data Corporation
206 West Sixth Street
Stillwater, Oklahoma 74074
(ii) If to Employee, to:
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Dana R. Allen
433 Airport Boulevard
Suite 414
Burlingame, California 94010
Any party may change its address for notice hereunder by notice to the
other parties hereto.
8.2. Entire Agreement. This Agreement contains the entire agreement
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between the parties with respect to the subject matter hereof, and supersedes
all prior agreements, written or oral, with respect hereto.
8.3. Waivers and Amendments. This Agreement may be amended, modified,
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superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
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8.4. Governing Law. This Agreement shall be governed and construed
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in accordance with the laws of the State of Oklahoma applicable to agreements
made and to be performed entirely within such state.
8.5. Assignment. Employee may not delegate the performance of any of
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his duties hereunder. Neither party hereto may assign any rights hereunder
without the written consent of the other party hereto.
8.6. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.7. Headings. The headings in this Agreement are for reference
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purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
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By: /s/ Maxwell Steinhardt
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Maxwell Steinhardt, Chairman
EMPLOYEE:
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/s/ Dana R. Allen
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Dana R. Allen
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