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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Agreement is made as of the 10th day of March, 2000
between IGS Acquisition Corporation, a Texas corporation, with offices at 12200
Stemmons, Suite 315, Dallas, Texas 75234 (the "Company") and Patrick Mackey, an
individual residing in the State of Texas (the "Employee").
RECITALS
WHEREAS, the Company desires to secure the services and
employment of the Employee on behalf of the Company, and the Employee desires to
enter into employment with the Company, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto, each intending to be legally
bound hereby, agree as follows:
1. Employment. The Company hereby employs the Employee as
Chief Financial Officer of the Company, and the Employee accepts such employment
for the term of employment specified in Section 3 below. During the Employment
Term (as defined below), the Employee shall serve as Chief Financial Officer,
performing such duties as shall be reasonably required of such an employee of
the Company, and shall have such other powers and perform such other additional
executive duties as may from time to time be assigned to him by the senior
management or the Board of Directors of the Company or such other person
designated by the senior management or the Board of Directors of the Company.
The Company acknowledges that the Employee's primary place of business shall be
Dallas, Texas and the Employee acknowledges that in performance of his duties
hereunder, the Employee shall be required to travel to the Company's facilities
located throughout the United States.
2. Performance. The Employee will serve the Company faithfully
and to the best of his ability and will devote substantially all of his time,
energy, experience and talents during regular business hours and as otherwise
reasonably necessary to such employment, to the exclusion of all other business
activities.
3. Employment Term. The employment term shall begin on the
date of this Agreement and continue until and as set forth on Schedule 3, unless
earlier terminated pursuant to Section 6 below (the "Employment Term").
4. Compensation.
(a) Salary. During the Employment Term, the Company shall pay
the Employee the base salary set forth on Schedule 4(a), with such increases
thereto as shall be in the sole discretion of the Board of Directors of the
Company. The base salary shall be payable in accordance with current Company
procedures and shall be subject to applicable withholding for taxes and the base
salary shall not be decreased by any amount or for any reason other than
pursuant to Section 7.
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(b) Incentive Cash Compensation. For each fiscal year of the
Company or portion thereof during the Employment Term, the Employee shall be
eligible for discretionary bonuses payable by the Company on such terms and
conditions, and subject to such standards, as shall be determined from time to
time, in the sole discretion of the Board of Directors or the compensation
committee of the Company.
(c) Stock Options and Other Non-Cash Incentive Compensation.
(i) During the Employment Term, the Employee shall be
eligible for discretionary non-cash awards pursuant to the Company's stock
incentive plan and payable by the Company on such terms and conditions, and
subject to such standards, as shall be determined from time to time, in the sole
discretion of the Board of Directors or the compensation committee of
the Company. All awards referred to in this Section 4(c)(i) shall have the terms
and conditions as set forth in any award agreement pursuant to which such
non-cash awards are granted. All awards will immediately vest upon the following
enumerated events: (1) the Company terminates the Employee's employment
hereunder without "cause" as provided in Section 6(c), or (2) the Employee
terminates his employment hereunder for Good Reason as provided in Section 6(e).
(ii) During the Employment Term, the Employee shall
be eligible to participate in the Company's 1999 Omnibus Securities Plan adopted
and approved as of September 22, 1999, as amended October 14, 1999, and to
receive awards of options thereunder issued by the Company on such terms and
conditions, and subject to such standards, as shall be determined from time to
time, in the sole discretion of the Board of Directors or the compensation
committee of the Company. All awards will immediately vest upon the following
enumerated events: (1) the Company terminates the Employee's employment
hereunder without "cause" as provided in Section 6(c), (2) the Employee
terminates his employment hereunder for Good Reason as provided in Section 6(e)
or (3) a Change in Control occurs.
(d) Medical and Dental Health and Other Benefits. During the
Employment Term, the Employee shall be entitled to medical and dental health
and other benefits in accordance with the current Company procedures with
respect to its executive level employees.
(e) Vacation; Sick Leave. During the Employment Term, the
Employee shall be entitled to up to four weeks of vacation and shall be entitled
to sick leave in accordance with the current Company procedures with respect to
its executive level employees.
(f) For purposes of this Section 4, the term "Change in
Control" shall mean the occurrence of any of the following: (1) any "person"
as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934 ("Act") (other than (a) Permitted Assignees, (b) the Company, (c) any
trustee or other fiduciary holding securities under any employee benefit plan of
the Company, (d) any company owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of
common stock of the Company, or (e) any entity holding non-participating shares
of an entity which is a stockholder of the Company or which owns or controls,
directly or indirectly, a stockholder of the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting
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power of the Company is then outstanding securities. "Permitted Assignees" shall
mean the holders of the equity securities (whether or not voting) of any
shareholder of the Company owning more than fifteen percent (15%) of the Company
on the date after the date of execution of this Agreement; (2) during any period
of two (2) consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company, and any new director (other
than a director designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (1), (3), or (4) of this
paragraph) whose election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the two-year period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the Board of Directors of the Company; (3) a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however, that a merger
or consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than fifty percent (50%)
of the combined voting power of the Company's then outstanding securities shall
not constitute a Change in Control of the Company; and provided, further, a
merger or consolidation in which the Company is the surviving entity (other than
as a wholly owned subsidiary or another entity) and in which the Board of
Directors of the Company after giving effect to the merger or consolidation is
comprised of a majority of members who are either (x) directors of the Company
immediately preceding the merger or consolidation, or (y) appointed to the Board
of Directors of the Company by the Company (or its Board of Directors) as an
integral part of such merger or consolidation, shall not constitute a Change in
Control of the Company; or (4) the stockholders of the Company approve a plan of
complete liquidation of the Company or the sale or disposition by the Company of
all or substantially all of the Company's assets other than (x) the sale or
disposition of all or substantially all of the assets of the Company to a person
or persons who beneficially own, directly or indirectly, at least fifty percent
(50%) or more of the combined voting power of the outstanding voting securities
of the Company at the time of the sale or (y) pursuant to a dividend in kind or
spinoff type transactions, directly or indirectly, of such assets to the
stockholders of the Company.
5. Expenses. The Employee shall be reimbursed by the Company
for all reasonable expenses incurred by him in connection with the performance
of his duties hereunder in accordance with policies established by the Board of
Directors of the Company from time to time and upon receipt of appropriate
documentation.
6. Termination. The employment of the Employee hereunder shall
automatically terminate at the end of the Employment Term. The employment of the
Employee hereunder may also be terminated prior to the end of the Employment
Term under the following circumstances:
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(a) Death or Disability. The Employment Term shall terminate
upon the death or Disability of the Employee. For purposes of this Agreement,
"Disability" occurs if the Employee is unable to perform his duties, pursuant to
this Agreement, on a full-time basis because of mental or physical incapacity,
including, without limitation, alcoholism or drug abuse, which requires a leave
of absence in excess of 90 days during any calendar year. In the event the
Employee is a "Qualified Individual with a Disability", as defined in the
Americans with Disabilities Act, the Company shall not terminate the Employee's
employment hereunder if the Employee is able to perform the essential functions
of the Employee's job with reasonable accommodation from the Company.
(b) With "Cause." For purposes of this Agreement, the
Company shall have "Cause" to terminate the Employee's employment hereunder
upon the occurrence of any of the following: (i) embezzlement, theft or other
misappropriation of any property of the Company or any of its subsidiaries by
the Employee, (ii) gross or willful misconduct by the Employee resulting in
substantial loss to the Company or any of its subsidiaries or substantial damage
to the reputation of the Company or any of its subsidiaries, (iii) any act by
the Employee involving moral turpitude which results in a conviction of, or a
pleading nolo contendere to, a felony or other crime involving moral turpitude,
fraud or misrepresentation, (iv) willful and continued failure or neglect by the
Employee to substantially perform his assigned duties to the Company or any of
its subsidiaries, (v) gross breach of the Employee's fiduciary obligations to
the Company or any of its subsidiaries, (vi) any chemical dependence which
materially affects the performance of the Employee's duties and responsibilities
to the Company or any of its subsidiaries, or (vii) commission of a felony or a
crime by the Employee involving moral turpitude or the commission of any other
significant act by the Employee involving dishonesty, disloyalty or fraud with
respect to the Company; provided that in the case of the misconduct set forth in
clauses (iv) and (vi) above, such misconduct shall continue for a period of 15
days following written notice thereof by the Company to the Employee.
(c) Without "Cause." Notwithstanding any provisions of this
agreement to the contrary, the Company may terminate the Employee's employment
hereunder for any reason other than those specified in the foregoing paragraphs
(a) and (b), or for no reason, at any time during the Employment Term, effective
upon delivery of two (2) days notice by the Company.
(d) Vo1untary resignation. The Employer may terminate his
employment hereunder at any time during the Employment Term subject only to the
requirement that the Employee shall provide the Company with a minimum of thirty
(30) days prior written notice.
(e) With "Good Reason." Notwithstanding any provision of this
Agreement to the contrary, the Employee may terminate his employment hereunder
for Good Reason, subject to the requirement that the Employee shall provide the
Company with a minimum of two (2) weeks prior written notice. For purposes of
this Agreement, the Employee shall have "Good Reason" to terminate his
employment hereunder upon the occurrence, without the Employee's written
consent, of any of the following: (i) a significant change in the nature or
scope of the Employee's duties from those described in Section I above,
including a material demotion or any assignment of duties materially and
adversely inconsistent with Employee's position as Chief Financial Officer
(except in connection with the termination of Employee's employment for cause or
due to
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Disability or as a result of Employee's death, or temporarily as a result of
Employee's illness or other absence); (ii) a failure by the Company to pay to
the Employee any amounts due under this Agreement in accordance with the terms
hereof, which failure is not cured within fifteen (15) days following receipt by
the Company of notice from the Employee of such failure; (iii) any other
material breach by the Company of this Agreement that remains uncured for
fifteen (15) days after written notice thereof by the Employee to the Company;
or (iv) if the Company requires the Employee to relocate to an area more than
twenty-five (25) miles from the location of his office immediately prior to the
date first written above, and the Employee declines to so relocate.
7. Compensation upon Termination. The Employee shall be
entitled to the following compensation from the Company, in lieu of all other
sums owed or payable to the Employee hereunder, upon the termination of the
Employee's employment during the Employment Term of this Agreement.
(a) Death or Disability. In the event of the death or
Disability of the Employee during the Employment Term, except for amounts of
base salary and accrued vacation time earned by the Employee as of the date of
termination but not yet paid by the Company, the Company shall have no
obligation to make payments to the Employee or his estate, in accordance with
the provisions of Section 4 or otherwise, for the periods after the date the
Employee's employment with the Company terminates on account of death or
Disability.
(b) With Cause. In the event that the Employee's employment
is terminated by the Company for Cause, except for the amounts of base salary
and accrued vacation time earned by the Employee as of the date of termination
but not yet paid by the Company, the Company shall have no obligation to make
payments to the Employee, in accordance with the provisions of Section 4 or
otherwise, for the periods after the date the Employee's employment with the
Company terminates.
(c) Without Cause. In the event that the Employee's employment
is terminated by the Company without Cause at any time during the Employment
Term, or in the event the Company gives the Employee written notice, as provided
in Schedule 3, that the Company does not intend to extend the Employment Term
upon the current expiration date thereof, the Employee shall be entitled to
receive upon delivery to the Company of a general release and waiver releasing
the Company of all claims of the Employee (1) an amount equal to his base
salary, then in effect, for the remainder of the Employment Term or for six
months, whichever is longer (the "Severance Period"), such amount to be payable,
at the Company's option, in a lump sum on the date of termination or the date on
which the Employment Term expires, as the case may be, or ratably over the
Severance Period and (2) the amounts of base salary and accrued vacation time
earned by the Employee as of the date of termination but not yet paid by the
Company pursuant to Section 4.
(d) Voluntary Resignation. In the event that the Employee's
employment is terminated by the Employee pursuant to Section 6(d), except for
amounts of base salary and accrued vacation time earned by the Employee as of
the date of termination but not yet paid by the Company pursuant to Section 4,
the Company shall have no obligation to make payments to the Employee, in
accordance with the provisions of Section 4 or otherwise, for the periods after
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the date the Employee's employment with the Company terminates on account of
voluntary resignation. Notwithstanding any provision of this Agreement to the
contrary, if the Employee's employment with the Company terminates on account of
voluntary resignation for Good Reason, the Employee shall be entitled to receive
(1) an amount equal to his base salary, then in effect, for the Severance
Period, such amount to be payable, at the Company's option, in a lump sum on the
date of termination, or ratably over the Severance Period and (2) the amounts of
base salary and accrued vacation time earned by the Employee as of the date of
termination but not yet paid by the Company pursuant to Section 4.
8. Non-Competition and Non-Solicitation.
(a) (i) The Employee acknowledges that as a result of his
employment by the Company, the Employee will acquire knowledge of the trade and
proprietary and confidential information as to the Company and its Affiliates
and will create relationships with customers, suppliers and other persons
dealing with the Company and its Affiliates and the Company and its Affiliates
will suffer substantial damage, which would be difficult to ascertain and is not
compensable by monetary damages, if the Employee should use such trade secrets
or other proprietary and confidential information or take advantage of such
relationship and that because of the nature of the information that will be
known to the Employee and the relationships created, it is necessary for the
Company and its Affiliates to be protected by the prohibition against
Competition as set forth herein.
(ii) The Employee acknowledges that the retention of
nonclerical employees employed by the Company and its Affiliates in which the
Company and its Affiliates have invested training and depend on for the
operation of their businesses is important to the businesses of the Company and
its Affiliates, that the Employee will obtain unique information as to such
employees and will develop unique relationships with such persons as a result of
being an employee of the Company and, therefore, it is necessary for the
Company and its Affiliates to be protected from the Employee's Solicitation (as
defined below) of such employees as set forth below.
(iii) The Employee acknowledges that the provisions
of this Agreement are reasonable and necessary for the protection of the
businesses of the Company and its Affiliates and that part of the compensation
paid under this Agreement and the agreement to pay compensation upon termination
in certain instances is in consideration for the agreements in this Section 8.
(b) For the purposes of this Agreement, "Competition" shall
mean: participating, directly or indirectly, as an individual proprietor,
partner, stockholder, officer, employee, director, joint venturer, investor,
lender, consultant or in any capacity whatsoever (within the United States of
America, or in any country where the Company or its Affiliates do business) in a
Competing Business (as defined below); provided, however, that such
participation shall not include (i) the mere ownership if not more than three
percent (3%) of the total outstanding stock of a publicly held company; or
(ii) any activity engaged in with the prior written approval of the Board of
Directors of the Company.
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For the purposes of this Agreement, "Competing Business"
shall mean any line of business engaged in by the Company and/or its
subsidiaries and/for any entity in which the Company and/or its subsidiaries
holds securities (other than entities in which the Company or its subsidiaries
make a nominal investment) (i) from time to time (while Employee is employed by
the Company) or (ii) at the time of termination (upon termination of Employee's
employment).
For the purposes of this Agreement, "Affiliate" of the Company
shall mean any Person directly or indirectly controlling, controlled by, or
under common control with, the Company; provided that, for the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to the
Company, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and polices of the Company,
whether through the ownership of voting securities or partnership interests, by
contract or otherwise.
For purposes of this Agreement, "Person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization, a group and a government or other department or
agency thereof.
(c) For purposes of this Agreement, "Solicitation" shall mean:
recruiting, soliciting or inducing, of any nonclerical employee or employees of
the Company or its Affiliates to terminate their employment with, or otherwise
cease their relationship with, the Company or its Affiliates or hiring or
assisting another person or entity to hire any nonclerical employee of the
Company or its Affiliates or any person who within twelve (12) months before had
been a nonclerical employee of the Company or its Affiliates and were recruited
or solicited for such employment or other retention while an employee of the
Company, provided, however, that Solicitation shall not include any of the
foregoing activities engaged in with the prior written approval of the Board of
Directors of the Company.
(d) If any restriction set forth with regard to Competition or
Solicitation is found by any court of competent jurisdiction, or in arbitration,
to be unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to amend over the maximum period of time, range of activities or
geographic area as to which it may be enforceable. If any provision of this
Section shall be declared to be invalid or unenforceable, in whole or in part,
as a result of the foregoing, as a result of public policy or for any other
reason, such invalidity shall not affect the remaining provisions of this
Section 8 which shall remain in full force and effect.
(e) During the Employment Term and for two (2) years following
a termination of Employee's employment for any reason whatsoever, whether by the
Company or by the Employee and whether or not with Cause, Good Reason or
non-extension of the Employment Term, the Employee will not engage in
Solicitation.
(f) During the Employment Term and for the Restricted Period
(as hereafter defined) following a termination of Employee's employment,
Employee will not enter into Competition with the Company. The "Restricted
Period" shall mean (i) for a termination with Cause, two (2) years following the
date of termination, (ii) for termination without Cause by the
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Company, or for Good Reason by the Employee, the period in which the Company is
making payments to Employee as specified in Section 7 above, (iii) for
termination as a result of the voluntary resignation by the Employee without
Good Reason, one (1) year from the date of termination, and (iv) for termination
as a result of the Company giving Employee written notice, as provided in
Schedule 3, that the Company does not intend to extend the Employment Term upon
the current expiration date thereof, six (6) months following the date of
termination.
(g) In the event of a breach or potential breach of this
Section 8, Employee acknowledges that the Company and its Affiliates will be
caused irreparable injury and that money damages may not be an adequate remedy
and agree that the Company and its Affiliates shall be entitled to injunctive
relief (in addition to its other remedies at law) to have the provisions of this
Section 8 enforced. It is hereby acknowledged that the provisions of this
Section 8 are for the benefit of the Company and all of the Affiliates of the
Company and each such entity may enforce the provisions of this Section 8 and
only the applicable entity can waive the rights hereunder with respect to its
confidential information and employees.
(h) Furthermore, in addition to and not in limitation of any
other remedies provided herein or at law or in equity, in the event of breach of
this Section 8 by the Employee, while he is receiving amounts under Section 7(c)
or (d) hereof, the Employee shall not be entitled to receive any future amounts
pursuant to Section 7(c) or (d) hereof and shall reimburse the Company for any
amounts previously paid to the Employee pursuant to Section 7(c) or (d) hereof.
9. Confidential Information, Inventions an Trade Secrets. As a
condition to the effectiveness of this Agreement, the Employee shall enter into
a Confidential Information and Invention Assignment Agreement, substantially in
the form of Annex A attached hereto.
10. Arbitration
(a) (i) Any dispute, controversy or claim arising out of,
relating to, or in connection with, this contract, or the breach, termination or
validity thereof, shall be finally settled by arbitration. The arbitration shall
be conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect at the time of the arbitration, except as they
may be modified herein or by mutual agreement of the parties. The seat of the
arbitration shall be Dallas, Texas. Notwithstanding Section 12(c), the
arbitration and this clause shall be governed by the Federal Arbitration Act, 9
U.S.C. Sections 1 et seq.
(ii) The arbitration shall be conducted by three arbitrators.
The party initiating arbitration (the "Claimant") shall appoint an arbitrator in
its request for arbitration (the "Request"). The other party (the "Respondent")
shall appoint an arbitrator within 30 days of receipt of the Request and shall
notify the Claimant of such appointment in writing. If within 30 days of receipt
of the Request by the Respondent, either party has not appointed an arbitrator,
then the arbitrator shall be appointed by the American Arbitration Association.
The first two arbitrators appointed in accordance with this provision shall
appoint a third arbitrator within 30 days after the Respondent has notified
Claimant of the appointment of the Respondent's arbitrator or, in the event of a
failure by a party to appoint, within 30 days after the American
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Arbitration Association has notified the parties and any arbitrator already
appointed of its appointment of an arbitrator on behalf of the party failing to
appoint. When the third arbitrator has accepted the appointment, the two
arbitrators making the appointment shall promptly notify the parties of the
appointment. If the first two arbitrators appointed fail to appoint a third
arbitrator or so to notify the parties of the appointment, the American
Arbitration Association shall appoint the third arbitrator and shall promptly
notify the parties of the appointment. The third arbitrator shall act as Chair
of the tribunal.
(iii) The arbitral award shall be in writing, state the
reasons for the award, and be final and binding on the parties. The award shall
include an award of costs, as set forth in Section 10(iv) below, including the
costs and expenses of the arbitration. Judgment upon the award may be entered by
any court having jurisdiction thereof or having jurisdiction over the relevant
party or its assets. A request for interim measures by a party to a court shall
not be deemed incompatible with, or a waiver of, this agreement to arbitrate.
(iv) Enforcement Costs. In the event that either the Company
or the Employee initiates an arbitration, in accordance with this Section 10, to
enforce any provision or term of this Agreement, the costs and expenses of the
arbitration (excluding attorney's fees) of the prevailing party shall be paid by
the other party, such party to be deemed to have prevailed if such arbitration
is concluded pursuant to an order, award or final judgment of the arbitrators
which is not subject to a modification, an appeal, a settlement agreement or a
dismissal of the principle claims. Each party shall pay its own attorney's fees.
11. Notice. All notices, objections and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered (return receipt requested) or mailed by certified mail
(return receipt requested) or by Federal Express or another nationally
recognized courier service or by facsimile transmission upon electronic
confirmation of receipt thereof during normal business hours at the following
addresses (or at such other address for a party as shall be specified by like
notice);
If to the Employee:
Patrick Mackey
5816 Braemar Drive
Plano, Texas 75093
If to the Company:
IGS Acquisition Corporation
12200 Stemmons, Suite 315
Dallas, Texas 75234
Attention: David N. Link
Telephone: (972) 247-3883
Facsimile Number: (972) 247-3870
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12. General.
(a) Construction and Severability. If any provision of this Agreement
shall be held invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to
amend, supplement or substitute all and any such invalid, illegal or
unenforceable provisions with enforceable and valid provisions which would
produce as nearly as may be possible the result previously intended by the
parties without renegotiation of any material terms and conditions stipulated
therein.
(b) Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement. Notwithstanding anything else in this
Agreement to the contrary, the Company may assign this Agreement to and all
rights hereunder shall inure to the benefit of any person, firm or corporation
succeeding to all or substantially all of the business or assets of the Company
by purchase, merger or consolidation.
(c) Governing Law. This Agreement shall be governed in all respects,
including as to validity, interpretation, construction, performance and effect,
by the laws of the State of Texas applicable to contracts executed and to be
performed entirely within said State:
(d) Binding Effect. This Agreement is for the employment of the Employee,
personally, and for the services to be rendered by him must be rendered by him
and no other person. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
(e) Entire Agreement; Modification. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
may not be modified or amended in any way except in writing by the parties
hereto.
(f) Duration. Notwithstanding the term of employment hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(g) Survival. The covenants set forth in Sections 6, 8 and 9 of this
Agreement shall survive and shall continue to be binding upon Employee
notwithstanding the termination of this Agreement for any reason whatsoever.
The covenants set forth in Sections 6, 8 and 9 of this Agreement shall be
deemed and construed as separate agreements independent of any other provision
of this Agreement. The existence of any claim or cause of action by Employee
against Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of any or all covenants. It
is expressly agreed that the remedy at law for the breach or any such covenant
is inadequate and that injunctive relief shall be available to prevent the
breach or any threatened breach thereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement the day and year first written above.
IGS ACQUISITION CORPORATION
By /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
EMPLOYEE
/s/ PATRICK MACKEY
----------------------------------------
Patrick Mackey
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JOINDER
eVentures Group, Inc. joins in the Employment Agreement, dated as of March
10, 2000, between IGS Acquisition Corporation and Patrick Mackey, for the sole
purpose of undertaking to perform the Company's obligations set forth in
Sections 4, 5 and 7 thereof, including but not limited to the obligation to pay
the bonuses set forth on Schedule 4(a) thereto, and has executed this Joinder
to the Employment Agreement as of the 10th day of March, 2000.
eVENTURES GROUP, INC.
By: /s/ STUART J. CHASANOFF
------------------------------------
Name: Stuart J. Chasanoff
Title: Vice President of Business
Development, Secretary and
General Counsel
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SCHEDULE 3
to Employment Agreement
Employment Term
The Employment Term shall initially be two years commencing on the date of
this Agreement. The initial Employment Term shall be automatically extended for
additional one-year periods unless either party gives the other party written
notice of its intention not to extend the Employment Term at least 90 days
prior to the end of the initial two year term or any additional one year term.
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SCHEDULE 4(A)
to Employment Agreement
SALARY
BASE SALARY
The annual base salary shall be $180,000.
BONUS PAYMENT TO BE PAID BY EVENTURES GROUP, INC.
In consideration of services to be provided by Employee to eVentures Group,
Inc. ("Parent") during the Employment Term, Parent shall pay to Employee a
one-time bonus of $20,000 within 30 days of the date of execution of this
Agreement. The bonus described in the preceding sentence shall be in addition
to discretionary bonuses, if any, payable to the Employee pursuant to Section
4(b) of this Agreement.
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ANNEX A
to Employment Agreement
This CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the
"Agreement") is made between eVentures Group, Inc. (the "Company") and the
undersigned employee.
In consideration of my employment with the Company (which for purposes of
this Agreement shall be deemed to include any subsidiaries or Affiliates of the
Company), the receipt of confidential information while associated with the
Company, and other good and valuable consideration, I, the undersigned
individual, agree that:
1. Term of Agreement. This Agreement shall continue in full force and
effect for the duration of my employment by the Company (the "Period of
Employment") and shall continue thereafter until terminated through a written
instrument signed by both parties.
2. Confidentiality.
(a) Definitions. "Proprietary Information" is all information and
any idea whatever form, tangible or intangible, pertaining in any manner to the
business of the Company, or any of its Affiliates, or its employees, clients,
consultants, or business associates, which was produced by any employee or
consultant of the Company in the course of his or her employment or consulting
relationship with the Company or otherwise produced or acquired by or on behalf
of the Company. All Proprietary Information not generally known outside of the
Company's organization, and all Proprietary Information so known only through
improper means, shall be deemed "Confidential Information." By example and
without limiting the foregoing definition, Proprietary and Confidential
Information shall include, but not be limited to:
(i) formulas, research and development techniques, processes,
trade secrets, computer programs, software, hardware, electronic codes,
mask works, inventions, innovations, patents, patent applications,
discoveries, improvements, data, know-how, formats, test results, and
research projects;
(ii) information about pricing, costs, profits, markets,
sales, contracts and lists of customers, and distributors;
(iii) business, financial, marketing, and strategic plans;
(iv) forecasts, unpublished financial information, budgets,
projections, and customer identities, characteristics, data, and
agreements; and
(v) employee personnel files and compensation information.
Confidential Information is to be broadly defined, and includes all
information that has or could have commercial value or other utility in the
business in which the Company is engaged or contemplates engaging, and all
information of which the unauthorized disclosure
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could be detrimental to the interests of the Company, whether or not such
information is identified as Confidential Information by the Company.
(b) Existence of Confidential Information. The Company owns and has
developed and compiled, and will continue to develop and compile, certain trade
secrets, proprietary techniques and other Confidential Information which have
great value to its business. This Confidential Information includes not only
information disclosed by the Company to me, but also information developed or
learned by me during the course of my employment with the Company.
(c) Protection of Confidential Information. I will not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
third party, other than in my assigned duties and for the benefit of the
Company, any of the Company's Confidential Information, at any time during or
after my employment with the Company. In the event I desire to publish the
results of my work for the Company through literature or speeches, I will
submit such literature or speeches to the President of the Company at least ten
(10) days before dissemination of such information for a determination of
whether such disclosure may alter trade secret status, may be highly
prejudicial to the interests of the Company, or may constitute an invasion of
its privacy. I agree not to publish, disclose or otherwise disseminate such
information without prior written approval of the President of the Company. I
acknowledge that I am aware that the unauthorized disclosure of Confidential
Information of the Company may be highly prejudicial to its interests, an
invasion of privacy, and an improper disclosure of trade secrets.
(d) Delivery of Confidential Information. Upon request or when my
employment with the Company terminates for any reason, I will immediately
deliver to the Company all copies of any and all materials and writings
received from, created for, or belonging to the Company including, but not
limited to, those which relate to or contain Confidential Information.
(e) Location and Reproduction. I shall maintain at my work station and/or
any other place under my control only such Confidential Information as I have a
current "need to know." I shall return to the appropriate person or location or
otherwise properly dispose of Confidential Information once that need to know
no longer exists. I shall not make copies of or otherwise reproduce
Confidential Information unless there is a legitimate business need of the
Company for reproduction.
(f) Prior Actions and Knowledge. I represent and warrant that, from the
time of my first contact with the Company, I have held in strict confidence all
Confidential Information and have not disclosed any Confidential Information,
directly or indirectly, to anyone outside the Company, or used, copied,
published, or summarized any Confidential Information, except to the extent
otherwise permitted in this Agreement.
(g) Third-Party Information. I acknowledge that the Company has received
and in the future will receive from third parties their confidential
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for
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certain limited purposes. I agree that, during the Period of Employment and
thereafter, I will hold all such confidential information in the strictest
confidence and not to disclose or use it, except as necessary to perform my
obligations hereunder and as is consistent with the Company's agreement with
such third parties.
(h) Third Parties. I represent that my employment with the Company does
not and will not breach any agreements with or duties to a former employer or
any other third party. I will not disclose to the Company or use on its behalf
any confidential information belonging to others and I will not bring onto the
premises of the Company any confidential information belonging to any such
party unless consented to in writing by such party.
I acknowledge that the Company would not hire me or give me access to
Confidential or Proprietary Information, but for my covenants contained in this
Section 2.
3. Proprietary Rights, Inventions and New Ideas.
(a) Definition. The term "Subject Ideas or Inventions" includes
any and all ideas, processes, trademarks, service marks, inventions, designs,
technologies, computer hardware or software, original works of authorship,
formulas, discoveries, patents, copyrights, copyrightable works, products,
marketing and business ideas, and all improvements, know-how, data, rights and
claims related to the foregoing that, whether or not patentable, which are
conceived, developed or created which: (i) relate to the Company's current or
contemplated business or activities; (ii) relate to the Company's actual or
demonstrably anticipated research or development; (iii) result from any work
performed by me for the Company no matter where the work is or was performed;
(iv) involve the use of the Company's equipment, supplies, facilities or trade
secrets; (v) result from or are suggested by any work done by the Company or at
the Company's request, or any projects specifically assigned to me; or (vi)
result from my access to any of the Company's memoranda, notes, records,
drawings, sketches, models, maps, customer lists, research results, data,
formulae, specifications, inventions, processes, Confidential Information,
equipment, or other materials (collectively, "Company Materials").
(b) Company Ownership. All right, title and interest in and to all
Subject Ideas and Inventions, including but not limited to all registrable and
patent rights which may subsist therein, shall be held and owned solely by the
Company, and where applicable, all Subject Ideas and Inventions shall be
considered works made for hire. I shall mark all Subject Ideas and Inventions
with the Company's copyright or other proprietary notice as directed by the
Company and shall take all actions deemed necessary by the Company to protect
the Company's rights therein. In the event that the Subject Ideas and Inventions
shall be deemed not to constitute works made for hire, or in the event that I
should otherwise, by operation of law, be deemed to retain any rights (whether
moral rights or otherwise) to any Subject Ideas and Inventions, I agree to
assign to the Company, without further consideration, my entire right, title and
interest in and to each and every such Subject Idea and Invention.
(c) Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Subject Ideas and Inventions and their
development made by me (solely or jointly with others) during the term of my
employment with the Company. These
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records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. These records will be available to and
remain the sole property of the Company at all times. I agree that all copies of
any documents or materials related to Subject Ideas and Inventions will remain
with the Company after my termination (for whatever reason).
(d) Determination of Subject Ideas and Inventions. I further agree that
all information and records pertaining to any idea, process, trademark, service
mark, invention, technology, computer hardware or software, original work of
authorship, design, formula, discovery, patent, copyright, product, and all
improvements, know-how, rights, and claims related to the foregoing
("Intellectual Property"), that I do not believe to be a Subject Idea or
Invention, but that is conceived, developed, or reduced to practice by the
Company (alone by me or with others) during the Period of Employment and for one
(1) year thereafter, shall be disclosed promptly by me to the Company (such
disclosure to be received in confidence). The Company shall examine such
information to determine if in fact the Intellectual Property is a Subject Idea
or Invention subject to this Agreement.
(e) Access. Because of the difficulty of establishing when any Subject
Ideas or Inventions are first conceived by me, or whether they result from my
access to Confidential Information or Company Materials, I agree that any
Subject Idea and Invention shall, among other circumstances, be deemed to have
resulted from my access to Company Materials if: (i) it grew out of or resulted
from my work with the Company or is related to the business of the Company, and
(ii) it is made, used, sold, exploited or reduced to practice, or an application
for patent, trademark, copyright or other proprietary protection is filed
thereon, by me or with my significant aid, within one (1) year after termination
of the Period of Employment.
(f) Assistance. I further agree to assist the Company in every proper way
(but at the Company's expense) to obtain and from time to time enforce patents,
copyrights or other rights or registrations on said Subject Ideas and Inventions
in any and all countries, and to that end will execute all documents necessary:
(i) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent, copyrights or other
analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous
protection; and
(iii) to cooperate with the Company (but at the Company's expense) in
any enforcement or infringement proceeding on such letters patent,
copyright or other analogous protection.
(g) Authorization to Company. In the event the Company is unable, after
reasonable effort, to secure my signature on any patent, copyright or other
analogous protection relating to a Subject Idea and Invention, whether because
of my physical or mental incapacity or
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for any other reason whatsoever, I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and on my behalf and stead to execute and file any
such application, applications or other documents and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of letters
patent, copyright or other analogous rights or protections thereon with the same
legal force and effect as if executed by me. My obligation to assist the Company
in obtaining and enforcing patents and copyrights for Subject Ideas and
Inventions in any and all countries shall continue beyond the termination of my
relationship with the Company, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the
Company's request on such assistance.
(h) Exclusion. I acknowledge that there are no currently existing
ideas, processes, inventions, discoveries, marketing or business ideas or
improvements which I desire to exclude form the operation of this Agreement. To
the best of my knowledge, there is no other contract to assign inventions,
trademarks, copyrights, ideas, processes, discoveries or other intellectual
property that is now in existence between me and any other person (including any
business or governmental entity.)
(i) No Use of Name. I shall not at any time use the Company's name or
any of the Company trademark(s) or trade name(s) in any advertising or publicity
without the prior written consent of the Company.
(j) Acknowledgement. I acknowledge that the Company would not hire me
but for my covenants contained in these Sections.
(4) Representations and Warranties. I represent and warrant (i) that I
have no obligations, legal, contractual, or otherwise, inconsistent with the
terms of this Agreement or with my undertaking a relationship with the Company;
(ii) that the performance of the services called for by this Agreement do not
and will not violate any applicable law, rule or regulation or any proprietary
or other right of any third party; (iii) that I will not use in the performance
of my responsibilities for the Company any materials or documents of a former
employer; and (iv) that I have not entered into and will not enter into any
agreement (whether oral or written) in conflict with this Agreement.
(5) Termination Obligations.
(a) Upon the termination of my relationship with the Company (for
whatever reason) or promptly upon the Company's request, I shall surrender to
the Company all equipment, tangible Proprietary Information, Confidential
Information, documents, books, notebooks, records, reports, notes, memoranda,
drawings, sketches, models, maps, contracts, lists, computer disks (and other
computer-generated files and data), any other data and records of any kind, and
copies thereof (collectively, "Company Records"), created on any medium and
furnished to, obtained by, or prepared by myself in the course of or incident to
my employment, that are in my possession or under my control.
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(b) My representations, warranties, and obligations contained in this
Agreement shall survive the termination of my employment with the Company.
(c) Following any termination of the Period of Employment, I will
fully cooperate with the Company in all matters relating to my continuing
obligations under this Agreement.
(d) Upon the termination of my employment with the Company, and at all
times thereafter, I hereby grant consent to notification by the Company to my
new employer about my rights and obligations under this Agreement.
(e) Upon termination of the Period of Employment, I will execute a
Certificate acknowledging compliance with this Agreement in the form reasonably
provided by the Company.
6. INJUNCTIVE RELIEF. I acknowledge that my failure to carry out any
obligation under this Agreement, or a breach by me of any provision herein, will
constitute immediate and irreparable damage to the Company, which cannot be
fully and adequately compensated in money damages and which will warrant
preliminary and other injunctive relief, an order for specific performance, and
other equitable relief. I further agree that no bond or other security shall be
required in obtaining such equitable relief and I hereby consent to the issuance
of such injunction and to the ordering of specific performance. I also
understand that other legal and equitable action may be taken and remedies
enforced against me.
7. MODIFICATION. No modification of this Agreement shall be valid unless
made in writing and signed by both parties. Any such writing may only be signed
on behalf of the Company by the President of the Company.
8. BINDING EFFECT. This Agreement shall be binding upon me, my heirs,
executors, assigns and administrators and is for the benefit of the Company and
its successors and assigns.
9. ARBITRATION. Any dispute or controversy arising out of or relating to
any interpretation, construction, performance or breach of this Agreement, shall
be settled by arbitration to be held in Dallas, Texas in accordance with the
rules then in effect of the American Arbitration Association. The arbitrator may
grant injunctions or any other relief in such dispute or controversy. The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. Judgment may be entered on the arbitrator's decision in any
court having jurisdiction, provided, however, that the arbitrator shall not have
the power to alter or amend this Agreement.
10. GOVERNING LAW. This Agreement shall be construed in accordance with,
and all actions arising under or in connection therewith shall be governed by,
the internal laws of the State of Texas (without reference to conflict of law
principles).
11. INTEGRATION. This Agreement sets forth the parties' mutual rights and
obligations with respect to Proprietary Information, Confidential Information,
prohibited competition, and
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intellectual property. It is intended to be the final, complete, and exclusive
statement of the terms of the parties' agreements regarding these subjects.
This Agreement supersedes all other prior and contemporaneous agreements and
statements on these subjects, and it may not be contradicted by evidence of any
prior or contemporaneous statements or agreements. To the extent that the
practices, policies, or procedures of the Company, now or in the future, apply
to myself and are inconsistent with the terms of this Agreement, the provisions
of this Agreement shall control unless changed in writing by the Company.
12. Employment at Will. This Agreement is not an employment agreement. I
understand that the Company may terminate my association or employment with it
at any time, with or without cause, subject to the terms of any separate
written employment agreement, if any, executed by a duly authorized officer of
the Company.
13. Construction. This Agreement shall be construed as a whole, according
to its fair meaning, and not in favor of or against any party. By way of example
and not limitation, this Agreement shall not be construed against the party
responsible for any language in this Agreement. The headings of the paragraphs
hereof are inserted for convenience only, and do not constitute part of and
shall not be used to interpret this Agreement.
14. Attorney's Fees. Should either I or the Company, or any heir,
personal representative, successor or permitted assign of either party, resort
to legal proceedings to enforce this Agreement, the prevailing party in such
legal proceedings as determined by the arbitrator or other trier of fact, shall
be awarded, in addition to such other relief as may be granted, attorney's fees
and costs incurred in connection with such proceeding.
15. Severability. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any person, place or circumstance,
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement and such term, provision, covenant or condition as applied to other
persons, places and circumstances shall remain in full force and effect.
16. Rights Cumulative. The rights and remedies provided by this Agreement
are cumulative, and the exercise of any right or remedy by either the Company
or me (or by that party's successor), whether pursuant hereto, to any agreement,
or to law, shall not preclude or waive that party's right to exercise any or all
other rights and remedies. This Agreement will inure to the benefit of the
Company and its successors and assigns.
17. Nonwaiver. The failure of either the Company or me, whether purposeful
or otherwise, to exercise in any instance any right, power or privilege under
this Agreement or under law shall not constitute a waiver of any other right,
power or privilege, nor of the same right, power or privilege in any other
instance. Any waiver by the Company or by me must be in writing and signed by
either myself, if I am seeking to waive any of my rights under this Agreement,
or by an officer of the Company (other than me) or some other person duly
authorized by the Company.
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18. Notices. All notices, objections and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered (return receipt requested) or mailed by certified mail (return
receipt requested) or by Federal Express or another nationally recognized
courier service or by facsimile transmission upon electronic confirmation of
receipt thereof during normal business hours at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to the Employee:
Patrick Mackey
5816 Braemar Drive
Plano, Texas 75093
If to the Company:
eVentures Group, Inc.
One Evertrust Plaza, 8th Floor
Jersey City, New Jersey 07302
Attention: Vice President and Chief Financial Officer
Telephone: (201) 200-5515
Facsimile Number: (201) 200-5532
with a copy to:
eVentures Group, Inc.
c/o HW Partners, L.P.
1601 Elm Street, 40th Floor
Dallas, Texas 75201
Attention: General Counsel
Telephone: (214) 720-1608
Facsimile Number: (214) 720-1667
and to:
White & Case LLP
200 S. Biscayne Blvd. Suite 4900
Miami, FL 33131
Attention: Thomas E Lauria
Telephone: (305) 371-2700
Facsimile Number: (305) 358-5744
19. Date of Effectiveness. This Agreement shall be deemed effective as of
the commencement of my employment with the Company.
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20. Agreement to Perform Necessary Acts. I agree to perform any further
acts and execute and deliver any documents that may be reasonably necessary to
carry out the provisions of this Agreement.
21. Assignment. This Agreement may not be assigned without the Company's
prior written consent. The Company may assign its rights under this Agreement.
22. Compliance with Law. I agree to abide by all federal, state, and
local laws, ordinances and regulations.
23. Employee Acknowledgment. I acknowledge that I have had the
opportunity to consult legal counsel in regard to this Agreement, that I have
read and understand this Agreement, that I am fully aware of its legal effect,
and that I have entered into it freely and voluntarily and based on my own
judgment and not on any representations or promises other than those contained
in this Agreement.
* * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth below.
CAUTION: THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND AFFECTS
THE EMPLOYEE'S RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL PROPERTY THE
EMPLOYEE MAY DEVELOP DURING HIS OR HER EMPLOYMENT.
Dated as of March 10, 2000.
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Employee Signature
Patrick Mackey
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Printed Name of Employee
eVENTURES GROUP, INC.
By:
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Name: Stuart J. Chasanoff
Title: Vice President of Business Development,
Secretary and General Counsel
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