Exhibit 10.34




 




EXECUTIVE EMPLOYMENT AGREEMENT




 




This

EMPLOYMENT AGREEMENT (“Agreement”) is executed as of the 28th day of

March 2002, by and between KEVIN D. AYERS, an individual (“Employee”), EN

POINTE TECHNOLOGIES, INC., a Delaware corporation (the “Company”), with

reference to the following facts:




 




A.            Employee is an individual possessing

unique management and executive talents of value to the Company and has been

its Vice President-Chief Financial Officer.




 




B.            The Company desires to continue the

employment of Employee as the Vice President-Chief Financial Officer for the

Company, and Employee desires to accept such employment, all on the terms and

conditions set forth in this Agreement.




 




AGREEMENT




 




In

consideration of the foregoing recitals and of the covenants and agreements

herein, the parties agree as follows:




 




1.               Term.  The Company hereby engages Employee to

perform his duties and render the services set forth in Section 2 for a

period commencing on March 16, 2002 (the “Effective Date”) and ending on July

16, 2003, (the “Employment Period”) and Employee hereby accepts said employment

and agrees to perform such services during the Employment Period. Unless this

Agreement is terminated pursuant to Section 4 or unless either party gives the

other written notice to the contrary prior to expiration date, this Agreement,

together with any changes which have occurred during the employment period then

expiring, shall automatically renew at the end of the Employment Period on a

month-to-month basis.




 




2.               Duties.




 




2.1.      Vice President/Chief Financial Officer: 

Performing executive work of major importance to the Company, with the

primary focus being the profitable management and profitable growth of the

Company.  During the Employment Period,

Employee shall devote his full business time and attention to performing his

duties as Chief Financial Officer of the Company. Such responsibility shall

include, but not be limited to:




 




2.1.1.                     Representing the Company to the financial and

investment communities.




 




2.1.2.                     Having custody of the funds and securities of

the Company and keeping full and accurate accounts of disbursements and

depositing all monies and other valuable effects in the name and to the credit

of the Company in such depositories as may be designated by the Board of

Directors.




 





























 




2.1.3.                     Disburse the funds of the Company as may be

designated by the Board of Directors or Chief Executive Officer or President,

taking proper vouchers for such disbursements.




 




2.1.4.                     Render to the Chief Executive Officer,

President and Directors, whenever they may require it, an account of all his

transactions as Chief Financial Officer and of the financial condition of the

Company.




 




2.1.5.                     Manage the overall direction, coordination

and evaluation of all financial functions at the Corporate level.




 




2.1.6.                     Assist the Chief Executive Officer in

formulating and administering company and financial policies for the Company.




 




2.1.7.                     Participate in developing long-range

financial goals and objectives.




 




2.1.8.                     Establish or modify financial systems to

improve operations, management and profitability.




 




2.1.9.                     Selecting, supervising, training and

evaluating professional, technical and clerical subordinates in Corporate

Accounting and Finance..




 




2.1.10.               The above description is non-exhaustive.  Employee shall work out of the Company’s

headquarters location and shall report to the Company’s Chief Executive Officer

(“CEO”).




 




2.1.11.               Employee recognizes that the Company’s Board

of Directors may be required under its fiduciary duty to Company and to its stockholders

to eliminate the position of Vice President/Chief Financial Officer of Company

or to appoint a different person as such officer of Company.  The parties agree however, that any such

elimination or replacement of Employee by Company, other than pursuant to

Section 4 or Section 7.1 or 7.2.1 or 7.3.1 hereof, shall constitute a

termination of Employee’s employment hereunder by the Company without cause.




 




3.               Company Policies.  Employee will be subject to and agrees to

adhere to all of Company’s policies which are generally applicable to En

Pointe’s employees, including but not limited to, all policies relating to

standards of conduct, conflicts of interest and compliance with the Company’s

rules and obligations.  To the extent

there is a conflict between the terms of a general Company policy and a term of

this Agreement, the specific term of the Agreement shall govern.




 




4.               Change of Control. 

Notwithstanding the terms of Section 2 above, if the Company or a

significant portion thereof is sold or merged or undergoes a change of control

transaction (as defined in the form of Parent’s Stock Option Agreement, a copy

of which shall be made available upon Employee’s written request), this

Agreement shall survive consummation of such transaction and shall continue in

effect for the remainder of the Employment Period, but Employee shall serve as

an officer of the entity which succeeds to the business or a substantial

portion of the business of the Company, and in such case shall bear a suitable

title and perform the duties and functions of such office of such publicly

traded or privately held successor, consistent with those customarily performed

by an officer of such a unit,




 




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division or entity

comparable to the then business of the Company, unit, division or entity.  Employee may be required to accept greater

or lesser responsibility by any successor, and agrees to fully cooperate and

assist in any resulting transition for up to the remainder of the Employment

Period; and any adjustments required of Employee to complete the transition to

any successor, unit, division or entity, shall not violate this Agreement so

long as “good reason” does not arise under Sections 8.2(iii).




 




5.               Conflict of Interest.




 




5.1.      Employee agrees that during the course of his employment, he will not,

directly or indirectly, compete with En Pointe Technologies in any way, nor

will Employee act as an officer, director, employee, consultant, shareholder,

lender or agent of any entity which is engaged in any business in which En

Pointe Technologies is now engaged or in which En Pointe Technologies becomes

engaged during the term of your employment. 

Any apparent conflict of interest must be disclosed to the En Pointe

Technologies Vice President- Human Resources for evaluation either at time of

employment or at the time that a conflict becomes known or suspected




 




5.2.      Employee further agrees that during the term of employment and for a

period of eighteen (18) months thereafter, employee will not, directly or

indirectly, compete unfairly or illegally with the Company in any way, or usurp

any Company opportunity in any way. Employee also agrees that during the term

of employment and for a period of eighteen (18) months thereafter, Employee will

not, directly or indirectly, whether on his own behalf or on behalf of another,

offer employment or a consulting agreement to any Company employee, nor will

Employee directly or indirectly, whether on his own behalf or on behalf of

another, actually employ or grant a consulting assignment to a Company

employee. Employee also agrees that during the term of employment and for a

period of eighteen (18) months thereafter, Employee will not, directly or

indirectly, whether on his own behalf or on behalf of another contact or

solicit any of Company’s clients to do business with any other entity other

than the Company.




 




6.               Compensation.  As

compensation for her services to be performed hereunder, the Company shall

provide Employee with the following compensation and benefits:




 




6.1.      Base Salary.  Employee’s base salary shall be $150,000.00

per year, paid semi-monthly and in accordance with such Company payroll

practices as are in effect from time to time, and subject to such withholding

as is required by law.




 




6.1.1.                     As used in this Agreement, “pre-tax net

income” shall mean positive pre-tax income of the Company (after including the

accrued cost of any bonuses paid to Company executives under this Section 6).




 




6.2.      Bonus.  Employee shall be eligible for

quarterly bonus at the sole discretion of the Company’s CEO and Board of

Directors.  Any quarterly bonus

considered under this Agreement shall be further subject to the condition that

the Company’s cumulative pre-tax net income (as defined in Section 6.1.1 above)

is positive at time of bonus




 




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consideration.  The CEO may elect to waive the

aforementioned profitability requirement for bonus in any given quarter;

however, any such waiver shall be in writing and further subject to section

10.4 of this Agreement.  If any bonus is declared or paid, it shall be

subject to such withholding as is required by law.




 




6.3.      Benefits.




 




6.3.1.                     Vacation.  Employee shall be entitled to four (4) weeks

of paid vacation during each year of the Employment Period consistent with the

Company’s then policy for senior executive employees.  In the event Employee does not use such vacation, he shall

receive, upon termination of the Employment Period, vacation pay for all unused

vacation calculated at the base salary rate set forth herein.  However, Employee shall endeavor to take

vacation time in the year in which it is allocated to him.




 




6.3.2.                     Business Expenses.  The Company shall reimburse Employee for all

reasonable business expenses incurred by Employee in the course of performing services for the Company and in compliance

with procedures established from time to time by the Company.




 




6.3.3.                     Other Benefits. 

Company shall provide Employee with other such employment benefits -

such as 401(k) participation, medical insurance and disability insurance - on

the terms and to the extent generally provided by the Company to its employees.




 




6.3.4.                     Stock Options. Although no stock options are offered or

granted under this Agreement, it does not alter or negate any Stock Option

provisions made in prior agreements between this Employee and the Company.




 




6.3.5.                     Other Persons.  The

parties understand that other officers and employees may be afforded payments

and benefits and employment agreements which differ from those of Employee in

this Agreement; but Employee’s compensation and benefits shall be governed

solely by the terms of this Agreement, which shall supersede all prior

understandings or agreements between the parties concerning terms and benefits

of employment of Employee with the Company. 

Other officers or employees shall not become entitled to any benefits

under this Agreement.




 




7.               Termination.




 




7.1.      Termination by Reason of Death or Disability.  The Employment Period shall terminate upon

the death or permanent disability (as defined below) of Employee.




 




7.2.      Termination by Company.




 




7.2.1.                     The Company may terminate the Employment Period

for “cause” by written notice to Employee.




 




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7.2.2.                     The Company may terminate the Employment Period

for any other reason, with or without cause, by written notice to Employee.




 




7.3.      Termination by Employee.




 




7.3.1.                     Employee may

terminate the Employment Period for “good reason” at any time by written notice

to the Company.




 




7.3.2.                     Employee may

terminate the Employment Period for any other reason by written notice to the

Company.




 




7.4.      Severance Pay.  In

the event the Employment Period is terminated by the Company without cause or

is terminated by Employee with good reason or if the Employment Period is

terminated because of the death or disability of Employee pursuant to

Section 7.1, upon the effectiveness of any such termination, the Company

shall be obligated to pay to Employee (or his executors, administrators or

assigns, as the case may be) all unpaid salary, benefits and bonuses (if any)

accrued through the date of effectiveness of such termination and, in addition,

a cash severance payment equal to six (6) months’ total base salary, at the

rates set forth herein, and such other benefits as may be required by law.

Severance pay shall be in exchange for executing a Settlement and General

Release of all claims.




 




8.               Certain

Definitions.  For purposes of this

Agreement:




 




8.1.      The term “cause” shall mean those acts

identified in Section 2924 of the California Labor Code, as that section

exists on the date of this Agreement, to

wit, any willful breach of duty by the Employee in the course of his

employment, or in case of his habitual neglect of his duty or continued

incapacity to perform it.




 




8.2.      The term “good reason” shall mean the

occurrence of one or more of the following events without the Employee’s

express written consent; (i) removal of Employee from the position and

responsibilities as set forth under Section 2 above; (ii) a material

reduction by the Company in the kind or level of employee benefits to which

Employee is entitled immediately prior to such reduction with the result that

Employee’s overall benefit package is significantly reduced; or, (iii) any

material breach by the Company of any material provision of this Agreement

which continues uncured for thirty (30) days following written notice thereof.




 




8.3.      The term “permanent disability” shall mean Employee’s incapacity due to physical

or mental illness, which results in Employee being absent from the performance

of his duties with the Company on a full-time basis for a period of six (6)

consecutive months.  The existence or

cessation of a physical or mental illness which renders Employee absent from

the performance of his duties on a full-time basis shall, if disputed by the

Company or Employee, be conclusively determined by written opinions rendered by

two qualified physicians, one selected by Employee and one selected by the

Company.  During the period of absence,

but not beyond the expiration of the Employment Period,




 




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Employee

shall be deemed to be on an unpaid disability leave of absence.  During the period of such disability leave

of absence, the Board of Directors may designate an interim officer with the

same title and responsibilities of Employee on such terms as it deems proper.




 




9.               Employee Benefit

Plans.  Any employee benefit plans in

which Employee may participate pursuant to the terms of this Agreement shall be

governed solely by the terms of the underlying plan documents and by applicable

law, and nothing in this Agreement shall impair the Company’s right to amend,

modify, replace, and terminate any and all such plans in its sole discretion as

provided by law.  This Agreement is for

the sole benefit of Employee and the Company, and is not intended to create an

employee benefit plan or to modify the terms of any of the Company’s existing

plans.




 




10.         Miscellaneous.




 




10.1.                             Arbitration/Governing

Law.  To the fullest extent permitted by law, any

dispute, claim or controversy of any kind (including but not limited to tort,

contract and statute) arising under, in connection with, or relating to this

Agreement or Employee’s employment, shall be resolved exclusively by binding

arbitration in Los Angeles County, California in accordance with the commercial

rules of the American Arbitration Association then in effect.  The Company and Employee agree to waive any

objection to personal jurisdiction or venue in any forum located in Los Angeles

County, California.  No claim, lawsuit

or action of any kind may be filed by either party to this Agreement except to

compel arbitration or to enforce an arbitration award; arbitration is the

exclusive dispute resolution mechanism between the parties hereto.  Judgment may be entered on the arbitrator’s

award in any court having Jurisdiction. 

The validity, interpretation, effect and enforcement of this Agreement

shall be governed by the laws of the State of California.




 




10.2.                             Assignment.  This Agreement shall inure to the benefit of

and shall be binding upon the successors and the assigns of the Company, and

all such successors and assigns shall specifically assume this Agreement.  Since this Agreement is based upon the

unique abilities of, and the Company’s personal confidence in Employee,

Employee shall have no right to assign this Agreement or any of his rights

hereunder without the prior written consent of the Company.




 




10.3.                             Severability.  If any provision of this Agreement shall be

found invalid, such findings shall not affect the validity of the other

provisions hereof and the invalid provisions shall be deemed to have been

severed herefrom.




 




10.4.                             Waiver of Breach.  The waiver by any party of the breach of any

provision of this Agreement by the other party or the failure of any party to

exercise any right granted to it hereunder shall not operate or be construed as

the waiver of any subsequent breach by such other party nor the waiver of the

right to exercise any such right.




 




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10.5.                             Entire Agreement.  This Agreement, together with the plans

referred to in Section 5, contains the entire agreement of the parties,

and supersede any and all agreements, wither oral or written, between the

parties hereto with respect to any employment by En Pointe Technologies in any

manner whatsoever.  Each party to this

Agreement acknowledges that no representations, inducements, promises or

agreements, orally or otherwise, have been made by any party, or anyone acting

on behalf of any party which are not embodied herein, and that no other

agreement, statement or promise not contained in this Agreement shall be valid

or binding.  This Agreement may not be

changed orally but only by an agreement in writing signed by the parties.




 




10.6.                             Notices.  Any notice required or permitted to be given

hereunder shall be in writing and may be personally served or sent by United

States mail, and shall be deemed to have been given when personally served or

two days after having been deposited in the United States mail, registered or

certified mail, return receipt requested, with first-class postage prepaid and

properly addressed as follows.  For the

purposes hereof, the addresses of the parties hereto (until notice of a change

thereof is given as provided in this Section 10.6) shall be as follows:




 




	

  If

  to Employee:


  	

   


  	

  Kevin

  D. Ayers


  13058 Sleepy Wind


  Moorpark, CA  93021


  
	

   


  	

   


  	

   


  
	

  If

  to the Company:


  	

   


  	

  En

  Pointe Technologies, Inc.


  100 N. Sepulveda Blvd., 19th Floor


  El Segundo, CA  90245


  Attention:  VP-HR


  





 




10.7.                             Headings.  The paragraph and subparagraph headings

herein are for convenience only and shall not affect the construction hereof.




 




10.8.                             Further Assurances.  Each of the parties hereto shall, from time

to time, and without charge to the other parties, take such additional actions

and execute, deliver and file such additional instruments as may be reasonably

required to give effect to the transactions contemplated hereby.




 




10.9.                             Counterparts.  This Agreement may be executed

simultaneously in any number of counterparts, each of which shall be deemed an

original but all of which together shall constitute one and the same

instrument.




 




10.10.                       Separate Counsel.  The Company has been represented by counsel

in the negotiation and execution of this Agreement and has relied on such

counsel with respect to any matter relating hereto.  The Employee has been invited to have his own counsel review and

negotiate this Agreement and Employee has either obtained his own counsel or

has elected not to obtain counsel.




 




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IN

WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the day

and year first above written.




 




	

  “Employee”


  	

   


  	

  For “Company”


  EN POINTE

  TECHNOLOGIES, INC.,


  a Delaware corporation


  
	

  Name

  (Print):


  	

  Kevin D. Ayers


  	

   


  	

  Robert D. Chilman


  
	

  Signature:


  	

  /s/Kevin

  D. Ayers


  	

   


  	

  /s/Robert

  D. Chilman


  
	

  Title:


  	

  Vice President-Chief Financial Officer


  	

   


  	

  Vice President-Human Resources


  





 




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