EMPLOYEE LEASING AND LICENSING AGREEMENT



 





Execution




EXHIBIT 10.39




EMPLOYEE LEASING AND LICENSING AGREEMENT




          THIS EMPLOYEE LEASING AND LICENSING AGREEMENT (the “Agreement”) is made by
and between EN POINTE TECHNOLOGIES, INC. (“ENPT”) and EN POINTE GLOBAL
SERVICES, INC. (the “Company”), effective as of the 17th day of October, 2003.



          WHEREAS, the Company desires to use the services of designated ENPT
employees and license certain ENPT Marks (as defined below) and ENPT is willing
to lease certain employees and license certain Marks to the Company; and



          WHEREAS, the parties desire to enter into this Agreement in order to set
forth their respective rights and obligations relating to the employee leasing
arrangement and the licensing of the Marks.



          NOW, THEREFORE in consideration of the promises and covenants and
agreements herein contained and other good an valuable consideration, the
receipt and sufficiency of which are herby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:



1. EMPLOYEE LEASING ARRANGEMENT




     1.1. Provision of Leased Employees. ENPT shall lease to the Company the
employees designated in Appendix A (hereinafter “Leased Employees” or “Leased
Employee” when referred to individually) pursuant to the terms and conditions
hereof. The Leased Employees shall provide services to the Company but will,
at all times during the period that said services are being provided, remain
the employees of ENPT. ENPT will have the sole responsibility of hiring and
discharging the Leased Employees, and will determine all aspects of each Leased
Employee’s remuneration, including base pay, bonus levels, entitlement to
benefits and annual salary treatment and progression.



     1.2. Payment of Compensation and Provision of Benefits. ENPT will remain
solely responsible for all matters related to (i) the payment of all
compensation and the provision of all employee benefits to the Leased Employees
(including, without limitation, disability insurance, workers compensation
and/or any other legally mandated benefit or insurance coverage), and (ii) the
reporting, withholding and remittance of federal, state and local taxes with
respect to wages or other compensation earned by the Leased Employees. The
Leased Employees will not be entitled to receive any compensation from the
Company and will not be entitled to participate in any employee benefit plan or
arrangement maintained by the Company.



     1.3. Identification of Leased Employees. From time to time, the Company
may request the services of Leased Employees by providing to ENPT a list of
positions that it is seeking to fill and the job description of each such
position (including any minimum qualifications necessary for each position).
Upon receipt of any such request, ENPT will work expeditiously to identify
which of its employees, if any, that are then available to fill the
specified position and will describe to the Company the qualifications of
each such employee.



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The Company may then select from the individuals
identified by ENPT, if any, those individuals it desires to lease pursuant to
this Agreement. The names of such individuals will then be added to Appendix A
who will then be deemed Leased Employees. The employees of ENPT set forth on
Appendix A as of the date hereof shall be deemed Leased Employees as of the
commencement of this Agreement.




     1.4. Performance of Leased Employees. The Company will provide
instructions and training to the Leased Employees as to the general nature of
the work to be performed. The Company’s management will provide to ENPT, in
any reasonable manner requested by ENPT, a report on each Leased Employee’s
performance. The Company may, in its sole discretion, refuse to accept the
services of any Leased Employee whose performance is unsatisfactory as
determined by the Company. If the Company determines that a Leased Employee’s
performance is unsatisfactory, the Company shall notify ENPT in writing and the
Company shall thereafter have no obligation to pay for the services of such
Leased Employee. The Company may also request, in writing, that the Leased
Employee be replaced. The notice and/or request for replacement described in
this Section 1.4 shall become effective at the time described in Section 3.2 of
this Agreement. ENPT shall identify an individual to replace an unsatisfactory
Leased within two business days of the effective date of the Company’s request
for a replacement.



     1.5. Fees. The fees the Company will pay to ENPT for the service of
Leased Employees (the “Fees”) are the following:



          1.5.1. reimbursement for each Leased Employee’s prorated annual base rate
of compensation, overtime pay (if legally required), bonus payments and costs
of employee benefits and insurance coverage, including employer-paid taxes
incident to this compensation (e.g., unemployment insurance, FICA, etc.)
(collectively “Leased Employee Cost”); and



          1.5.2. five percent (5%) of the Leased Employee Cost.



     1.6. Maintenance of Records. ENPT will keep appropriate records as may be
necessary to enable the costs identified in Section 1.5 to be ascertained by
the Company and will at all reasonable times produce such records and other
relevant accounts, materials and information as the Company may require. The
Company will maintain time and attendance records for each Leased Employee.



     1.7. Payment. ENPT shall submit to the Company invoices for Fees no more
frequently than monthly. The Company shall pay the Fees thirty (30) days
following receipt of an invoice from ENPT detailing the amounts due.



     1.8. Worksite and Supplies. The Leased Employees will work at the
Company’s premises or at such location as is assigned by the Company. The
Company will supply the employees with all equipment, materials and supplies
required to perform services for the Company. The Company agrees to notify
ENPT immediately upon becoming aware of any condition or situation which could
be detrimental to the health or safety of the Leased Employees.



     1.9. Confidentiality. The Company agrees that it will not request any
Leased Employee to use or provide to the Company any ENPT confidential or
proprietary information,



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equipment, materials or supplies (including but not
limited to customer lists, computer hardware or software, operations practices
or procedures, technical specifications, or any other confidential or
proprietary information of ENPT) without the prior consent of ENPT.




     1.10. Ethics. Both parties to this Agreement acknowledge that the Leased
Employees will be required to abide by any guidelines maintained by ENPT
regarding ethical business practices, as well as any similar guidelines
promulgated by the Company, throughout the period they are providing services
to the Company under this Agreement.



     1.11. Liability Insurance. ENPT will maintain at all times and at its own
cost a general liability insurance policy for actions arising out of the acts
and omissions of Leased Employees occurring during the course of their
employment and will name the Company as an additional insured under that
policy.



     1.12. Expiration or Termination. Either party may terminate the employee
leasing arrangement described in this Section 1 (the “Leasing Arrangement”)
with 30 days advance written notice. Upon termination of the Leasing
Arrangement with respect to any Leased Employee, the Company may hire such
Leased Employee or engage such Leased Employee as a consultant.



     1.13. No Third Party Beneficiaries. Nothing in this Agreement will be
deemed to create a contract or guaranty of employment for any person or to
otherwise modify the employment relationship between ENPT and any Leased
Employee. The parties agree that the intent of this Agreement is to benefit
only the Company and ENPT, and this Agreement will not be construed as an
agreement to benefit any third parties, including but not limited to Leased
Employees.



     1.14. Survival. The obligations set forth in Sections 1.5, 1.6, 1.7, 1.9,
1.11 and 1.12 of this Agreement will survive the termination of the Leasing
Arrangement.



2. LICENSE OF EN POINTE MARKS.




     2.1. Grant of License. Subject to the other provisions of this Section 2,
ENPT grants to the Company a non-exclusive, royalty-free, non-transferable,
non-sublicensable license during the License Term (as defined below) and all
renewal terms thereof to use the Marks (as defined below) for use in connection
with, and as part of, the Company’s (or its subsidiaries’) legal and/or trade
names, marketing and advertising materials, letterhead, business cards,
invoices and website (collectively the “Names and Goods”) anywhere in the
world. The parties acknowledge that the Company is currently using ENPT’s
Marks pursuant to an unwritten License Agreement, and such prior license shall
be subject to the terms and conditions of this Agreement. For purposes of
this Agreement, the “Marks” shall mean “En Pointe” and any derivation thereof.



     2.2. Ownership of the Marks. The Company acknowledges that ENPT owns all
right, title and interest in the Marks and the goodwill associated with the
Marks, and that any use of the Marks by the Company and any goodwill associated
with such use shall inure to the benefit of ENPT. The Company agrees that it
shall never attack or contest or assist others in attacking or
contesting the Marks or ENPT’s rights in the Marks. The Company agrees
not to register or attempt to register the Marks or any similar trade name,
trademark or service mark, or cause the



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Marks or any similar trade name,
trademark or service mark to be registered in any country, state or other
jurisdiction whether within or outside the Territory. ENPT hereby reserves the
exclusive worldwide right to use and register the Marks for use on, and in
connection with, any goods and services. If ENPT requires any specimens of
use, or any photographic reproductions of other identifying materials of use by
the Company, for any filing for a trademark and service mark, the Company shall
promptly provide ENPT with same at the Company’s expense.




     2.3. Maintenance of Marks. Throughout the License Term the Company shall
use commercially reasonable efforts to maintain the quality of the Marks,
including (i) adhering to specific reasonable quality control standards that
ENPT may from time to time promulgate and communicate to the Company with
respect to the Marks; (ii) complying with all federal, state and local laws and
regulations, governing the use of the Marks; and (iv) not altering or modifying
the Marks in any way.



     2.4. License Term. The License Term shall commence on the date hereof and
shall terminate at the option of ENPT upon written notice to the Company, which
option shall only be exercisable during such time as ENPT owns less than five
percent (5%) of the then outstanding Common Stock of the Company. In addition,
the License Term shall terminate at the option of the Company at any time upon
written notice of such termination to ENPT.



     2.5. Expiration of the License Term. Upon the expiration of the License
Term the Company will cease using the Marks and shall use its best efforts to
take all required action to change its corporate name so as to not include the
Marks.



3. MISCELLANEOUS PROVISIONS




     3.1. Amendment and Waiver. This Agreement may not be altered, amended or
modified at any time, unless such alteration, amendment or modification is
approved in writing by the party against whom such modification, amendment or
alteration is sought to be enforced.



     3.2. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to
the party to be notified, (ii) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient; if not, then on the next
business day, (iii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (iv) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall
be sent to the party to be notified at the address as set forth on the
signature page hereof or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.



     3.3. Severability. In the event any provision of this Agreement is found
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein will not in any
way be affected or impaired.



     3.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and no party shall be
liable or bound to the other
party in any manner by any representations, warranties, covenants and
agreements except as



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specifically set forth herein. No oral statements by any
employee of the Company or ENPT will modify or otherwise affect the terms and
provisions of this Agreement.




     3.5. Governing Law. This Agreement will be construed in accordance with
the substantive laws of the State of Delaware, notwithstanding any contrary
choice of law rules or principles.



     3.6. Assignment and Successors. Neither party may, voluntarily, by
operation of law, or otherwise, assign any of its rights or delegate any of its
obligations under this Agreement, without the express prior written consent of
the other party; provided, however, that subject to the foregoing, this
Agreement will bind and benefit the successors and permitted assigns of the
Company and ENPT.



     3.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may be executed by facsimile
signature(s) which shall be binding on the party delivering same, to be
followed by delivery of originally executed signature pages.



          IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.


	 	 	 	 	 
	 	EN POINTE TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Bob Din
 	 
	 	 	Name:  	Bob Din 	 
	 	 	Title:  

    Address:
100 N. Sepulveda Boulevard, 19th Floor

El Segundo, CA 90245 	 
	 



	 	 	 	 	 
	 	EN POINTE GLOBAL SERVICES, INC.

 	 
	 	By:  	/s/ Mark Briggs
 	 
	 	 	Name:  	Mark Briggs 	 
	 	 	Title:  
Address:  The Crusman Building

55 N. First Street, Suite 300

Clarksville, TN 37040 	 




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APPENDIX




LEASED EMPLOYEES





	1.	 	N. Reese Bagwell
	 
	2.	 	Aaron Bubbs






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