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EXHIBIT 10.5
AMENDMENT NO. 2
TO
EMPLOYMENT AGREEMENT
BY AND AMONG
INTERNET GLOBAL SERVICES, INC.,
(FORMERLY KNOWN AS IGS ACQUISITION CORPORATION)
PATRICK G. MACKEY
AND
NOVO NETWORKS, INC.
This Amendment No. 2 to Employment Agreement (this "Amendment") is made
and entered into as of January 10, 2001, by and among Internet Global Services,
Inc., a Texas corporation (the "Company"), Novo Networks, Inc. formerly known
as eVentures Group, Inc., a Delaware corporation ("Novo"), and Patrick G.
Mackey (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and the Employee entered into an Employment Agreement
dated as of March 10, 2000 (the "Employment Agreement");
WHEREAS, Novo executed a Joinder to the Employment Agreement dated March
10, 2000, for the sole purpose of performing the Company's obligations under
Sections 4, 5, and 7 of the Employment Agreement;
WHEREAS, the Company and the Employee entered into an Amendment No. 1 to
Employment Agreement dated as of September 25, 2000 ("Amendment No. 1");
WHEREAS, the Company and the Employee desire to make the changes herein to
the Employment Agreement; and
WHEREAS, the capitalized terms used herein without definition shall have
the meaning assigned to such terms in the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties agree as follows:
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1. Amendment to Schedule 3 to Employment Agreement. Effective as of the
date hereof, the word "two" in Schedule 3 to the Employment Agreement in each
instance is hereby deleted and replaced with the word "four".
2. Amendment to Section 4(c)(ii) of the Employment Agreement.
(a) Effective as of the date hereof, the first sentence of Section
4(c)(ii) of the Employment Agreement shall be deleted in its entirety and
replaced by the following:
"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
the Novo Networks, Inc. 2001 Equity Incentive Plan, 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."
(b) Effective as of the date hereof, the following shall be added to
Section 4(c)(ii) of the Employment Agreement following the last sentence
thereof:
"Notwithstanding the preceding sentence, no options granted to the
Employee pursuant to the Novo Networks, Inc. 2001 Equity Incentive
Plan shall be subject to any form of accelerated or immediate vesting
if the Employee's Employment Term is terminated for any reason
whatsoever prior to the first anniversary of the date of grant of such
options."
3. No Other Amendments. Except as expressly modified by this Amendment,
all terms and provisions of the Employment Agreement shall remain in full force
and effect.
4. Assignment. The Employee may not assign his interest in or delegate
his duties under this Amendment. Notwithstanding anything else in this Amendment
to the contrary, the Company or Novo may assign this Amendment 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
or Novo by purchase, merger or consolidation.
5. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Texas applicable to
contract executed and to be performed entirely within said State.
6. Miscellaneous. The provisions of this Amendment shall survive the
termination of the Employee's employment with the Company. This Amendment,
together with the Employment Agreement as amended by the Amendment No. 1,
contain
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the entire agreement of the parties relating to the subject matter hereof. This
Amendment, together with the Employment Agreement as amended by the Amendment
No. 1, supersede any prior written or oral agreements or understandings between
the parties relating to the subject matter hereof. No modification or amendment
of this Amendment shall be valid unless in writing and signed by or on behalf
of the parties hereto. A waiver of the breach of any term or condition of this
Amendment shall not be deemed to constitute a waiver of any subsequent breach
of the same or any other term or condition. This Amendment is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Amendment, or the application thereof to any person or circumstance, shall, for
any reason and to any extent, be held invalid or unenforceable, such invalidity
and unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of which
shall be enforced to the greatest extent permitted by law. The headings in this
Amendment are inserted for convenience or reference only and shall not be a
part of or control or affect the meaning of any provision hereof.
7. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment as of the date first written above.
INTERNET GLOBAL SERVICES, INC.
By: Thomas P. McMillin
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Name: Thomas P. McMillin
Title: Senior Executive Vice President
and Chief Operating Officer
NOVO NETWORKS, INC.
By: Thomas P. McMillin
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Name: Thomas P. McMillin
Title: Senior Executive Vice President
and Chief Operating Officer
Patrick G. Mackey
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Patrick G. Mackey