EXHIBIT 10.2
Execution Version
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of April 29, 1998, by and between Amtech Corporation d/b/a AMTC
Corporation, a Texas corporation (the "Company"), and David P. Cook
("Employee").
RECITALS
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A. The Company desires to provide for the continued employment of
Employee.
B. Employee is willing to continue to serve the Company on the terms and
conditions provided in this Agreement.
THEREFORE, in consideration of the covenants and agreements contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
agree as follows:
1. Employment. The Company shall employ Employee, and Employee accepts
such employment, on the terms and conditions set forth in this Agreement.
2. Term. Subject to the terms and conditions in this Agreement, the
employment of Employee by the Company as provided in Section 1 will be for a
term commencing on April 29, 1998 and expiring the close of business on April
28, 2001; provided, however, that at the end of the initial term and each
subsequent anniversary of the date hereof, the term of this Agreement shall
automatically extend for an additional year unless a party provides, at least 90
days prior to the end of such initial term or such subsequent anniversary,
written notice that it or he does not wish to extend the term.
3. Position and Duties. Employee shall serve as Chairman of the Board,
President, and Chief Executive Officer of the Company or in a comparable
executive officer position with the Company with such duties as may be assigned
to him from time-to-time by the Board of Directors (the "Board") of the Company;
provided, however, Employee shall not be assigned any duty or position which
will necessitate a change in the location of his home (presently in Dallas,
Texas). For so long as Employee serves in the foregoing capacities, the Company
shall nominate and support the election of Employee as a member of the Board.
Employee shall devote substantially all his working time and efforts to the
business and affairs of the Company. Notwithstanding the foregoing, Employee may
spend reasonable amounts of time on personal, civic, and charitable activities
that do not interfere with the performance of his duties and responsibilities to
the Company. In addition, Employee may, subject to prior approval by the
Board, spend reasonable amounts of time serving on boards of directors for other
companies, provided that such service does not constitute or create a conflict
of interest.
4. Compensation. As compensation for Employee's employment under this
Agreement, the Company is granting to Employee an option to purchase shares of
the common stock of the Company, on the terms set forth in the Stock Option
Agreement (the "Option Agreement") between the Company and the Employee, dated
as of the date of this Agreement.
5. Expenses and Services. During the term of Employee's employment under
this Agreement, Employee shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by Employee by reason of his employment,
provided that such expenses are incurred and accounted for in accordance with
reasonable policies and procedures established by the Company and in effect when
the expenses are incurred. The Company shall furnish Employee with office
space, secretarial assistance, office supplies, office equipment, and such other
facilities and services as are suitable to Employee's position and adequate for
the performance of his duties.
6. Confidential Information. Employee recognizes and acknowledges that
Employee will have access to confidential information of the Company and its
Affiliates (as defined below), including, without limitation, customer
information, lists of suppliers and costs, information concerning the business
and operations of the Company and its Affiliates, and proprietary data,
information, concepts and ideas (whether or not patentable or copyrightable)
relating to the business of the Company and its Affiliates, as applicable.
Employee agrees not to disclose such confidential information, except as may be
necessary in the performance of Employee's duties, to any person, nor use such
confidential information in any way, unless Employee has received the written
consent of the Company or unless such confidential information becomes public
knowledge through no wrongful act of Employee. Upon termination of Employee's
employment for any reason, Employee shall promptly deliver to the Company all
drawings, manuals, letters, notebooks, customer lists, documents, records,
equipment, files, computer disks or tapes, reports or any other materials
relating to the business of the Company and its Affiliates (as defined below),
and all copies, that are in Employee's possession or under Employee's control.
Confidential Information shall not include information that constitutes general
skills, knowledge, and experience acquired by Employee before and/or during his
employment with the Company.
7. Rights under Certain Plans. During the term of Employee's employment
under this Agreement, Employee will be entitled to participate in the insurance
and employee benefit plans and programs maintained by the Company and its
Affiliates applicable to officer employees on the same basis as other officer
employees of the Company or its Affiliates, as applicable, subject only to the
possible substitution by or on behalf of the Company or its Affiliates of other
plans or programs providing substantially similar or increased benefits for
Employee. Employee will also be entitled to reasonable vacation time (not to
exceed three weeks), with no reduction in compensation, in keeping with
Employee's duties and responsibilities to the Company.
8. Early Termination. Employee's employment under this Agreement may be
terminated without any breach of this Agreement only under the following
circumstances:
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(A) Employee's employment under this Agreement will terminate upon
Employee's death;
(B) If, as a result of Employee's incapacity due to physical or mental
illness, Employee shall have been absent from his duties and/or unable to
perform the essential functions of his position, with or without reasonable
accommodation, for a total of 180 days during any 18-month period, and within 30
days after written notice of termination is given (which may occur before or
after the end of such 180-day period) shall not have returned to the performance
of the essential functions of his position, with or without reasonable
accommodation, the Company may terminate Employee's employment under this
Agreement.
(C) The Company may terminate Employee's employment under this Agreement
for Cause. For purposes of this Agreement, the Company shall have "Cause" to
terminate Employee's employment under this Agreement upon (1) the willful and
continued failure by Employee to substantially perform his duties under this
Agreement (other than any such failure resulting from Employee's incapacity due
to physical or mental illness), after written demand for substantial performance
is delivered by the Board that specifically identifies the manner in which the
Board believes Employee has not substantially performed his duties; or (2) the
willful engaging by Employee in misconduct that is materially injurious to the
Company; or (3) the conviction of Employee, or a plea by Employee of nolo
contendere, or the substantial equivalent to either of the foregoing, of or with
respect to, any felony or serious crime of moral turpitude. For purposes of this
subsection (C), no act, or failure to act, on Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in, or not
opposed to, the best interest of the Company. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for Cause without (a)
reasonable written notice to Employee, setting forth the reasons for the
Company's intention to terminate for Cause; (b) an opportunity for Employee,
together with his counsel, to be heard before the Board (or an authorized
representative thereof); and (c) delivery to Employee of a written Notice of
Termination as defined in subsection (H) hereof from the Board finding that, in
the good faith opinion of the Board, Employee engaged in the conduct set forth
above in clause (1), (2), or (3) of this subsection (C).
(D) Employee may terminate Employee's employment under this Agreement (1)
for Good Reason; or (2) if Employee's health should become impaired to an extent
that makes Employee's continued performance of Employee's duties under this
Agreement hazardous to Employee's physical or mental health or Employee's life,
provided that Employee shall have furnished the Company with a written statement
from a qualified doctor to such effect and provided, further, that, at the
Company's request, Employee shall submit to an examination by a doctor selected
by the Company and such doctor shall have concurred in the conclusion of
Employee's doctor.
For purposes of this Agreement, "Good Reason" shall mean (a) a failure by
the Company to comply with any material provision of this Agreement or the
Option
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Agreement that has not been cured within ten days after notice of such
noncompliance has been given by Employee to the Company; (b) any material
diminution in Employee's title and duties; (c) any purported termination of
Employee's employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of subsection (H) hereof (and for purposes of this
Agreement, no such purported termination shall be effective); or (d) the
assignment of duties or position that would necessitate a change in the location
of Employee's home (presently in Dallas, Texas). Employee's resignation for Good
Reason shall be effected by delivering a notice that shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
Good Reason.
(E) The Company may terminate Employee's employment under this Agreement
without Cause upon 30 days' notice to Employee.
(F) Employee may terminate Employee's employment under this Agreement
without Good Reason upon 90 days' notice to Company.
(G) The Company may terminate Employee's employment under this Agreement
for Non-Performance. For purposes of this Agreement, the Company shall have
reason to terminate Employee's employment for "Non-Performance" if the Company's
Board, acting in good faith, determines that the Company has failed to
satisfactorily attain its business objectives under Employee's leadership.
(H) Any termination of Employee's employment by the Company or by Employee
(other than termination pursuant to subsection (A) above) shall be communicated
by written Notice of Termination to the other party to this Agreement. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice that
shall indicate the specific termination provision in this Agreement relied upon
and, in the case of a Notice of Termination given by the Company, shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Employee's employment under the provision so indicated.
(I) "Date of Termination" shall mean (1) if Employee's employment is
terminated by Employee's death, the date of Employee's death; (2) if Employee's
employment is terminated pursuant to subsection (B) above, 30 days after Notice
of Termination is given (provided that Employee shall not have returned to the
performance of the essential functions of his position, with or without
reasonable accommodation, during such 30-day period); and (3) if Employee's
employment is terminated for any other reason, the date specified in the Notice
of Termination.
9. Certain Effects of Termination. At any such time when Employee shall
no longer be in the employ of the Company, any successor in interest to the
Company or any of their respective Affiliates, Employee shall, within the period
prescribed by applicable law, subject to the terms and conditions of any
applicable insurance or employee benefit plan, receive payments in satisfaction
of any and all other wages, benefits, pensions, or other remunerations which
shall then be payable to, or vested on behalf of, Employee.
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10. Non-competition. Employee agrees and covenants that Employee will
not, during the term hereof and for a period of 18 months after Employee ceases
to be employed by the Company:
(A) compete, directly or indirectly, with any business or businesses
conducted by the Company during the term hereof. For purposes of this
Agreement, "Competition" shall include, without limitation, engaging in any
business, whether as proprietor, partner, joint venturer, employee, agent,
officer, or holder of more than five percent (5%) of any class of equity
ownership of a business enterprise, that is competitive with any business
or businesses conducted by the Company for the period or at the time in
question. This non-competition provision is not intended to preclude
Employee from participating in computer, software, or Internet-based
businesses generally, provided that such participation is not otherwise in
violation of this provision.
(B) solicit to do, or do, competing business with any then-current
customer of the Company or any person that has been a customer within the
six months preceding the date of Employee's separation from employment with
the Company.
(C) solicit to hire, or hire, any then-current key employee of the
Company, except by way of general advertising.
Although the Company and Employee have, in good faith, used their best
efforts to make the non-competition covenant reasonable in all pertinent
respects, and it is not anticipated, nor is it intended, by either party to this
Agreement that any arbitrator or court will find it necessary to reform the non-
competition covenant to make it reasonable in all pertinent respects, the
Company and Employee understand and agree that if an arbitrator or court
determines it necessary to reform the non-competition covenant in order to make
it reasonable in all pertinent respects, damages, if any, for a breach of the
non-competition covenant, as so reformed, will be deemed to accrue to the
Company as and from the date of such a breach only and so far as the damages for
such breach related to an action which accrued within the scope of the non-
competition covenant as so reformed.
11. Affiliate Defined. The term "Affiliate" as used in this Agreement
shall have the meaning given such term in the Option Agreement.
12. Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a waiver of any right
under this Agreement. No waiver shall be binding unless executed in writing by
the party making the waiver.
13. Limitation of Rights. Nothing in this Agreement, except as
specifically stated in this Agreement, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their respective permitted successors and assigns and other
legal representatives, nor is anything in this Agreement intended to relieve or
discharge
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the obligation or liability of any third persons to any party to this Agreement,
nor shall any provision give any third persons any right of subrogation or
action over or against any party to this Agreement.
14. Remedies. Employee hereby agrees that a violation of the provisions
of Section 6 or 10 hereof would cause irreparable injury to the Company for
which it would have no adequate remedy at law. Accordingly, in the event of any
such violation, the Company shall be entitled to preliminary and other
injunctive relief. Any such injunctive relief shall be in addition to any other
remedies to which the Company may be entitled at law or in equity, or otherwise.
15. Notice. Any consent, notice, demand, or other communication regarding
any payment required or permitted hereby must be in writing to be effective and
shall be deemed to have been received on the date delivered, if personally
delivered, or the date received, if delivered otherwise, addressed to the
applicable party at the address for such party set forth below or at such other
address as such party may designate by like notice:
The Company:
AMTC Corporation
One Galleria Tower
13355 Noel Road, Suite 1555
Dallas, Texas 75240
Attn: General Counsel
Employee:
David P. Cook
One Galleria Tower
13355 Noel Road, Suite 1555
Dallas, Texas 75240
16. Inconsistent Obligations. Employee represents and warrants that
Employee has not previously assumed any obligations inconsistent with those of
this Agreement.
17. Entirety and Amendments. This Agreement and the Option Agreement
embody the entire agreement between the parties and supersede all prior
agreements and understandings relating to the subject matter hereof, and may be
amended only by an instrument in writing executed by all parties.
18. Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties to this Agreement and any successors in interest
to the Company following a Change of Control (as defined in the Option
Agreement), but otherwise, neither this Agreement nor any rights or obligations
under this Agreement may be assigned (a) by Employee, except in the case of the
death of Employee, or (b) by the Company.
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19. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas (excluding its
conflict of laws rules) and applicable federal law.
20. Cumulative Remedies. No remedy in this Agreement conferred upon any
party is intended to be exclusive of any other benefit or remedy, and each and
every such remedy shall be cumulative and shall be in addition to every other
benefit or remedy given under this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise. No single or partial exercise by any
party of any right, power, or remedy under this Agreement shall preclude any
other or further exercise thereof.
21. Disputes. During the pendency of any disputes under this Agreement
and unless specifically enjoined by a court of competent jurisdiction or an
arbitrator, the Company will continue to make all payments to Employee and
provide all benefits to Employee that are described in this Agreement until such
dispute is finally resolved without right of appeal.
22. Multiple Counterparts. This Agreement may be executed in a number of
identical counterparts, each of which constitute collectively, one agreement;
but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart.
23. Descriptive Headings. The headings, captions, and arrangements used
in this Agreement are for convenience only and shall not be deemed to limit,
amplify, or modify the terms of this Agreement, nor affect the meaning hereof.
24. Arbitration.
The Company and the Employee agree to the resolution by binding arbitration
of all claims, demands, causes of action, disputes, controversies, or other
matters in question ("Claims") arising out of this Agreement or the Employee's
employment (or its termination), whether sounding in contract, tort, or
otherwise and whether provided by statute or common law, that the Company may
have against the Employee or that the Employee may have against the Company or
any Affiliate or any benefit plans of the Company or any Affiliate or any
fiduciaries, administrators, and affiliates of any of such benefit plans, or
their respective officers, directors, employees, or agents in their capacity as
such. This agreement to arbitrate shall not limit the Company's or the
Employee's right to seek equitable relief, including, but not limited to,
injunctive relief and specific performance in a court of competent jurisdiction.
Claims covered by this agreement to arbitrate include, but are not limited to,
claims by the Employee for breach of this Agreement, wrongful termination,
discrimination (based on age, race, sex, disability, national origin, or other
factor), and retaliation. The only Claims otherwise within the definition of
Claims that are not covered by this Section 24 are: (1) any administrative
actions that the Employee is permitted to pursue under applicable law that are
not precluded by virtue of the Employee having entered into this Section 24; (2)
any Claim by the Employee for workers' compensation benefits or unemployment
compensation benefits; or (3) any Claim by the Employee for benefits under a
Company or Affiliate pension or benefit plan that provides its own non-judicial
dispute resolution procedure.
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Claims shall be submitted to arbitration and finally settled under the
Employment Dispute Resolution Rules of the American Arbitration Association
("AAA") in effect at the time the written notice of the Claim is received. An
arbitrator shall be selected in the manner provided for in the Employment
Dispute Resolution Rules of the AAA, except that the parties agree that the
arbitrator shall be an attorney licensed in the state where the arbitration is
being conducted. If any party refuses to honor its obligations under this
agreement to arbitrate, the other party may compel arbitration in either federal
or state court. The arbitrator will have exclusive authority to resolve any
dispute relating to the interpretation, applicability, enforceability, or
formation of this agreement to arbitrate, including, but not limited to, any
claim that all or part of this Agreement is void or voidable and any claim that
an issue is not subject to arbitration. The arbitration will be held in Dallas
County, Texas. The arbitrator shall issue a written decision that identifies
the factual findings and principles of law upon which any award is based. The
award and findings of such arbitrator shall be conclusive and binding upon the
parties. Any and all of the arbitrator's orders, decisions, and awards may be
enforceable in, and judgment upon any award rendered by the arbitrator may be
confirmed and entered by, any federal or state court having jurisdiction. The
Company shall pay all costs and expenses of its advisors and expert witnesses,
and Employee shall pay all costs and expenses of his advisors and expert
witnesses. The costs and expenses of the arbitration proceedings will be paid
by the non-prevailing party or as the arbitrator otherwise determines.
Discovery will be permitted to the extent directed by the arbitrator. EMPLOYEE
UNDERSTANDS THAT BY AGREEING TO SUBMIT CLAIMS TO ARBITRATION, HE GIVES UP THE
RIGHT TO SEEK A TRIAL BY COURT OR JURY AND THE RIGHT TO AN APPEAL A COURT OR
JURY DECISION AND FORGOES ANY AND ALL RELATED RIGHTS HE MAY OTHERWISE HAVE UNDER
FEDERAL AND STATE LAWS.
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Signatures
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To evidence the binding effect of the covenants and agreements described
above, the parties to this Agreement have executed this Agreement on the dates
set forth below, to be effective as of the date first above written.
THE COMPANY:
AMTECH CORPORATION
d/b/a AMTC CORPORATION
/s/ Steve M. York
--------------------------------------
Steve M. York
Senior Vice President, Chief Financial
Officer, and Treasurer
Date: August 11, 1998
---------------------------------
EMPLOYEE:
/s/ David P. Cook
--------------------------------------
David P. Cook
Date: August 11, 1998
---------------------------------
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