EXHIBIT 10.53
-------------
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), entered into as of the 27th day of
October, 2000, between ATG Inc ("the Company") and Vik Mani ("Prospective
Employee") and collectively as "the Parties," amended and agreed to by both
parties as of February 8 2001 is further amended and agreed to by both parties
as of the 18th day of February, 2001. This amended Agreement supersedes the
previous version of the Agreement; and the terms and conditions contained herein
shall govern the employment relationship between the Parties. In consideration
of the foregoing and the mutual promises and covenants contained herein and
other good and valuable consideration, the Company hereby employs Prospective
Employee in a new position as its Chief Operations Manager, a non-officer
position, as of the date of February 18, 2001,and Prospective Employee hereby
accepts such employment.
1. The term of the employment is for thirty-six (36) months effective the date
of joining of the Company by Prospective Employee which is November 20,
2000. ATG will announce Prospective Employee as its new Chief Operations
Manager of the Company on a date mutually agreed upon. Prospective Employee
is not employed "at-will", but is employed under the terms and conditions
set forth in this Agreement.
2. Prospective Employee will report at all times to the CEO of the Company.
The following officers and department heads shall report to Prospective
Employee:
All operations personnel and business development personnel, except Fred
Feizollahi. As Chief Operations Manager of ATG, Prospective Employee's
duties and responsibilities will be to manage the Company's marketing,
sales and operations. Provided, however, that the Engineering Department
(headed by Fred Feizollahi) is outside of the scope of the Chief Operations
Manager's responsibilities. The Chief Operations Manager reports directly
to the CEO. The Chief Operations Manager will have no responsibility for
the financial management of the Company and is not authorized to sign
Company checks or decide to whom such checks will or will not be written.
The Finance, Accounting and Comptroller organizations report directly to
the Chief Financial Officer (CFO), who reports directly to the CEO; and
neither of these organizations nor the CFO report to or are within the
control of the Chief Operations Manager or the Operations organization. The
Chief Operations Manager is not required or permitted to be involved in the
collection, accounting or payment of taxes or other indebtedness on behalf
of the Company.
3. The Company shall pay a signing bonus ("Signing Bonus") of $560,000.00, to
the Prospective Employee hereby receipted for by the Prospective Employee,
and received by the Prospective Employee in two payments on October 5, 2000
($307,500) and October 20, 2000 ($252,500) prior to Prospective Employee
giving notice to his present employer of the intent to resign his
employment. The Signing Bonus is paid to the Prospective Employee in
consideration of the fact that the Prospective Employee is agreeing to
resign his current employment as Senior Vice President with his current
employer, CH2M Hill, a premier company of world standing in the industry
and in robust financial condition. By giving up his employment with CH2M
Hill, the Prospective Employee is sacrificing in excess of one million
dollars ($1,000,000.00) in annual bonuses, long-term incentive
compensation, stock options, retirement plans, ESOP contributions and
company stock appreciation. The Company acknowledges that it has received
full and adequate consideration from the Prospective Employee for the
Signing Bonus paid by the Company, by the action of the Prospective
Employee resigning from his current position and agreeing to join the
Company. ATG considers the services of the Prospective Employee critical to
its credibility in the industry because of the proven credentials, skills
and experience of the Prospective Employee and is, therefore, willing to
make this up-front investment as a Signing Bonus for the Prospective
Employee as inducement for Prospective Employee to resign his current
employment and join ATG, a much smaller company with potential for growth
but facing much greater challenges and uncertainties. The Signing Bonus
shall be irrevocable and non-refundable to the Company and is for the
inducement to the Prospective Employee to execute this Agreement and leave
his current, senior level employment with a more assured financial future
and guaranteed employee benefits. Upon the execution of this Agreement and
giving notice to his current employer, the said Signing Bonus shall be
deemed fully earned. Prospective Employee shall be responsible for all
taxes associated with the signing bonus, i.e. federal and state withholding
for income taxes, social security, and Medicare.
4. In addition to the Signing Bonus described in Section 3., the Company shall
pay Prospective Employee a salary of $325,000, in the first twelve (12)
months of employment payable in accordance with Company current payroll
practices as other employees are scheduled for their payment of employment
compensation. Total first twelve (12) months' compensation, excluding the
Signing Bonus and stock options as hereinafter set forth, is $325,000
gross.
5. The Company shall pay to Prospective Employee in the second twelve (12)
month period of employment, a salary of $300,000. Further, Company shall
pay Prospective Employee a performance cash bonus of $50,000.00 based on
predetermined performance goal as set forth below. The total compensation
is $350,000 in the second twelve (12) month time period if performance goal
is met, excluding stock options as hereinafter set forth. The performance
goal is defined as the Company obtaining a minimum of $15 million ("New
Business Goal") of new DOE business (contracted capacity) from INEEL,
Hanford, Rocky Flats or any other DOE contracts within twenty-four (24)
months from commencement of the employment. Once the $15 million minimum
New Business Goal requirement is met, the performance cash bonus will be
earned based on $10,000 per million dollars of new business up to a maximum
of $50,000. Such performance bonus earned by the Prospective Employee shall
be paid to the Prospective Employee at six month intervals commencing the
date of achievement of the new business goal, but no later than 30 days
after earning the maximum second twelve (12) month employment period
performance bonus as stated above. In the event Prospective Employee is
terminated by the Company, resigns for Good Reason, as hereinafter defined,
or due to Change of Control, as hereinafter defined, or dies or becomes
disabled during the second twelve (12) month period, such performance bonus
will be computed and paid on the same basis as if he were still employed
with the Company for such period.
6. The Company shall pay to Prospective Employee in the third twelve (12)
month period of employment a salary of $300,000 , plus a cash bonus up to
the amount of $50,000 based on the performance goal to be determined by
both Parties. Such goal will not be less than $20 million of DOE New
Business ($20 million of DOE new business contracted capacity) from
Hanford, Rocky Flats, INEEL or any other DOE contracts, however, alternate
sources of "New Business" may be agreed upon between the Company and the
Prospective Employee as the basis for setting the performance goal (New
Business) stated above. Such bonus shall be paid to Prospective Employee
pro-rated at 6 month intervals commencing the date of achievement of the
performance goal, but no later than thirty (30) days after earning the
bonus set forth above. In the event Prospective Employee is terminated by
the Company, resigns for Good Reason, as hereinafter defined, or due to
Change of Control, as hereinafter defined, or dies or becomes disabled
during the third twelve (12) month period, such bonus will be computed and
paid on the same basis as if he were still employed with the Company for
such period. During the third twelve (12) month period of employment only,
the Prospective Employee will be paid salary at the annual salary rate of
$300,000 only after the performance goal as agreed upon between the Company
and the Prospective Employee as stated above is achieved and the actual
business delivered during the first 24 months of employment is at least $10
million. During the third twelve (12) month period of employment only,
until such a time when the performance goal is achieved, the Prospective
Employee will be paid salary at the reduced annual rate of $200,000. In the
event the performance goal for the third twelve (12) month period is not
mutually agreed to, then it shall be as set forth above, which is defined
as the Company obtaining a minimum of $20 million ("New Business Goal") of
new DOE business (contracted capacity) from INEEL, Hanford, Rocky Flats or
any other DOE contracts within 24 months from commencement of the
employment.
7. In addition to the Company's New Business Goals, as the Chief Operations
Manager, Prospective Employee understands that other overall measures of
Company's performance, such as profitability, cost cutting measures, health
and safety, effective and efficient operation, new market and product
development, will also be within Prospective Employee's executive
responsibility. However, the standard for Performance Bonus eligibility
shall be the New Business Goals. Because of such responsibilities of
Prospective Employee, the Company agrees to provide Prospective Employee
with a sufficient operations budget assistance and support to allow the
accomplishment of the New Business Goals, such as reasonable travel and
entertainment expenses, cell phone, computer, etc and other customary
Business Development expenses, as well as to assist Prospective Employee in
his overall responsibilities. Prospective Employee is authorized to incur
expenses in the performance of his duties. The Company shall reimburse
Prospective Employee for all such expenses ten days after submitting the
expenses or at the next pay period, whichever is sooner. The Company
recognizes that Prospective Employee's ability to assist the Company in
achieving its performance goals, including New Business Goals, may be
affected by matters beyond Prospective Employee's control and/or prior
knowledge, such as Company's financial condition, prior regulatory
violations or other prior conflicts with clients. Therefore, Prospective
Employee's failure to meet the New Business Goals or otherwise meet
Company's anticipated levels of performance shall not constitute a basis to
deny Prospective Employee payment of performance bonuses or terminate
Prospective Employee's employment for Cause (as defined below) to the
extent caused by matters beyond Prospective Employee's control and/or prior
knowledge.
8. In the event the Prospective Employee resigns from the company due to no
breach by the Company of this agreement before expiration of the (36)
months term of this agreement, Prospective Employee's Employment will end,
without further obligation or liability to the Company, provided, however,
the Prospective Employee will make himself available to ATG upon request on
an exclusive consulting basis at the rate of $2000/day for a minimum period
of up to 180 days following his resignation in order to assure an orderly
transition. The foregoing shall constitute Company's exclusive remedy in
the event that Prospective Employee terminates his employment prior to the
expiration of the (36) months terms of this agreement due to no breach of
this Agreement by the Company. Company expressly waives the right to seek
other remedies, including but not limited to specific performance, or to
claim damages, whether arising in contract, tort, or otherwise (including
negligence and strict liability) in connection with Prospective Employee's
resignation of his employment. In the event the Prospective Employee
resigns during the term of this Agreement due to breach of this Agreement
by the Company, the Company filing for Bankruptcy in any form, or for Good
Reason (hereinafter defined), then the Company shall pay the Prospective
Employee an amount equal to one twelve (12) month period salary for the
twelve (12) month period of such resignation, earned but not paid
performance bonuses, and the relocation costs set forth in Section 18
hereof. All payments will be effected in a single lump sum payment within
two weeks of the effective date of Prospective Employee's resignation.
Further, all the stock options granted shall be deemed fully earned and
vested with the time period to exercise all stock options extended by one
year, and the Company shall be responsible for the continuation of medical
benefits at Company's expense for a period of twelve (12) months. It is the
intent of the Prospective Employee to remain on the Company's Payroll and
help the Company through any restructuring activities, provided however,
there would be no change in compensation and there will be no change of the
CEO and/or the Executive Vice President.
A. In the event Prospective Employee is terminated by the Company for any
reason whatsoever, including disability, and other than for Cause
("Cause" as defined below) prior to the end of the thirty-six (36)
month term, the Company shall pay the Prospective Employee a severance
salary equal to one twelve (12) month period salary for the twelve
(12) month period such termination occurs, all the performance cash
bonuses earned but not paid to Prospective Employee until then, and
the relocation costs as set forth in Section 18 hereof. All payments
will be effected in a single lump sum payment within two weeks of the
effective date of Prospective Employee's resignation. Further, all
stock options granted will be deemed fully earned and vested with the
time period to exercise the stock options extended by one year .
Additionally, the Company shall be responsible for continuation of
medical benefits for a period of twelve (12) months at Company's
expense. In consideration of the foregoing, the Parties expressly
waive their rights to bring any claim for other compensation or other
legal action against the other in connection with the Prospective
Employee's termination by the Company. Nothing herein shall restrict
the right of the Company to terminate the Prospective Employee's
employment for Cause. "For Cause" or "Cause" as used in this Agreement
shall mean that at the option of the Company, Prospective Employee's
employment hereunder shall be terminated immediately, upon any of the
following actions or occurrences if Company in good faith and not in
an arbitrary manner believes that such action or occurrence impairs
Company's willingness to place trust in Prospective Employee as an
employee or impairs Prospective Employee's ability to perform the
services required of Prospective Employee hereunder:
(i) Prospective Employee's personal dishonesty, commission and
conviction of any felony affecting his reputation and the
business of the Company;
(ii) Prospective Employee's gross negligence or gross negligent
misconduct which materially affects the business of the Company;
(iii) Prospective Employee's willful misconduct;
B. Death or disability shall not be deemed a resignation and Prospective
Employee or his successors or assignees shall have no obligation of
any payments to the Company due to Prospective Employee's death or
disability. Prospective Employee is deemed to be under a disability if
he is unable to perform his duties on account of illness or other
incapacity and such illness or other incapacity continues for a period
of more than three (3) consecutive months during any twelve (12) month
period. After such three (3) month period, the Company shall have the
right to terminate Prospective Employee. The termination becomes
effective after providing thirty (30) days written notice. If
Prospective Employee is deemed disabled, by a physician of his
choosing, then the time deadline to exercise any stock option shall be
extended twelve (12)months and waived entirely if Prospective Employee
is deceased. Prospective Employee's estate, legal representatives, or
heirs, as appropriate, shall succeed to and acquire all rights and
benefits of Prospective Employee herein.
D. "Good Reason" for Prospective Employee's resignation from the Company
shall mean any one of the following: (i) the Company breaches this
Agreement; (i) the Company files for Bankruptcy in any form; (ii) the
Company fails to meet its obligations to pay wages or state or federal
taxes; (iii) the Company fails to renew its Officers and Directors
Liability Insurance Policies with the same policy limits and
comparable coverage as the current policies; (v) the Company's by-laws
do not clearly define the duties of the Chief Operations Manager in a
manner consistent with the description set forth in Section 2, above,
or are not amended to be consistent within 7days of the effective date
of this Agreement; (vi) the Board of Directors does not approve this
amended Agreement and Prospective Employee does not receive written
confirmation of such approval within 7 days of the effective date of
this Agreement; (vii) the Company has not recorded or the Board of
Directors has not confirmed the Company's payment of the Signing Bonus
within one week of the effective date of this Agreement;(viii) a
mutually acceptable arrangement is not reached between the Prospective
Employee and the Company within two weeks of signing of this Agreement
by the Prospective Employee and the Company to Protect the Prospective
Employee against Payroll and Payroll Taxes Liability and to defend
against potential claims in the event the Company files for Bankruptcy
in any form.
E. Company's termination of Prospective Employee will be effective
immediately upon the Company providing written notice to the
Prospective Employee in the manner described in Section 22 unless the
Company's notification specifies otherwise. Prospective Employee's
resignation shall be effective immediately upon Prospective Employee's
written notice to the Company in the manner described in Section 22,
unless Prospective Employee's notification specifies otherwise.
9. Prospective Employee shall be granted an option to purchase 90,000 shares
of the Company's common stock at the market price on January 2, 2001,
deemed vested in accordance with the Company's policies i.e. vested
proratedly over thirty-six (36) month s. However, in the event of
Prospective Employee's death, disability, termination by the Company, or
resignation by Prospective Employee during the term for Good Reason or
Change of Control, all such stock options granted shall be deemed earned
and vested, and the time period to exercise the options shall be extended
by twelve months.
10. In the event the New Business Goal ($20 million of contracted capacity) is
met by the Company on or before December 31, 2001, a stock option for
60,000 shares of the Company's common stock, at the stock price as of
December 31, 2001 shall be granted to the Prospective Employee. In the
event the New Business Goal is exceeded by $10 million ($30 million total
of contracted capacity), a stock option of an additional 60,000 shares (for
a total of 120,000 shares) of Company's common stock, at the same price as
set forth above, shall be granted to Prospective Employee. Such options
shall vest in accordance with the Company policy as set forth above in
Section 9, subject to the same exceptions as set forth in Section 9 for
death, disability, termination by the Company, or resignation by the
Prospective Employee for Good Reason or Change of Control.
11. In the event during the term of this Agreement, the Company's common stock
sells publicly at a price of $20 or more per share for a period of three
(3) consecutive months, (in the event of stock splits, adjustments shall be
made accordingly for such effective computation), the Company shall grant
Prospective Employee an additional 100,000 shares of the Company's common
stock, deemed vested equally over the three twelve (12) month periods of
the term. The option price shall be as set forth above. Such options shall
vest in accordance with the Company policy as set forth above in Section 9,
subject to the same exceptions as set forth in Section 9 for death,
disability, termination by the Company, or resignation by the Prospective
Employee for Good Reason or Change of Control.
12. All stock options vested to Prospective Employee must be exercised in
accordance with the Company's standard policies for officer stock options.
13. "Change of Control" means any one of the following:
(i) change of ownership including acquisition of the Company; acquisition
of equal to or greater than 50%of the issued and outstanding common
stock by a single individual or entity other than the current
principal stock holders;
(ii) a significant merger or consolidation;
(iii)change in executive direction of the Company including the
appointment of a new CEO;
(iv) a change in the majority of the Board of Directors caused by the
merger or consolidation;
(v) Liquidation or Dissolution of the Company including direct or indirect
sale or other disposition of all or substantially all of the assets of
the Company;
(vi) a significant change in the business lines of the Company. In the
event of a Change of Control, the Prospective Employee may resign
without further obligation to the Company or the successor
organization and Company shall pay to Prospective Employee all the
salaries and performance bonuses payable to the Prospective Employee
during the first twenty-four (24) month period of this Employment
Agreement, as well as the relocation costs provided for in Section 18
hereof. All payments will be effected in a single lump sum payment
within two weeks of the effective date of Prospective Employee's
resignation. Further, Stock Options already granted are deemed fully
earned and vested. . Additionally, the Company shall provide for the
continuation of medical benefits at Company's expense for a period of
eighteen (18) months after Prospective Employee's separation from the
Company. The time period to exercise all stock options shall be
extended by one year .
14. The Company's corporate house in Richland, WA, fully furnished, shall be
provided, as primary residence, exclusively to Prospective Employee and his
family, and paid for and maintained by the Company. All utilities and
maintenance expenses will be Company's responsibility. The Prospective
Employee will be responsible for all personal long distance telephone
charges. Prospective Employee's principal place of work is deemed to be
Richland, WA.
15. DELETED.
16. The Company shall provide Prospective Employee with the Company's standard
benefits to all employees, including but not limited to medical, dental,
vision and life insurance benefits, as well as participation in the
Company's 401K or other retirement plan(s), sick days and personal days.
Prospective Employee shall be provided the option to add, at his expense
such participation of family members in such plans.
17. Prospective Employee shall be entitled to receive 4 weeks paid vacation
during each twelve (12) month period of the agreement. Prospective Employee
agrees to reasonably work with the Company as to timing and length of time
increments when such vacation is used.
18. The Company will pay relocation costs for the Prospective Employee and
spouse to move to Richland, Washington including coach air fare or over the
road expenses. The Prospective Employee will maintain his current household
in Denver at his own expense and will not move furniture to Richland,
Washington. The Company will pay for movement of personal effects and
shipment of one automobile. In the event of termination of the Prospective
Employee by the Company, voluntary termination by the Prospective Employee
due to Good Reason or Change of Control conditions stated in Section 13,
all relocation costs, on the same basis as above, shall be paid to the
Employee for relocation back to Denver, Colorado or another city within the
continental USA within the same distance.
19. Prospective Employee agrees to give notice to his current employer on or
before November 17, 2000. Prospective Employee can use his best judgement
how to transition from his existing employment provided ATG can announce
his employment as provided for in Section 1. If the Prospective Employee
does not resign from the current employer, the Prospective Employee will
promptly refund, at the request of the CEO of the Company, the Signing
Bonus paid in consideration and as inducement to the Prospective Employee
for resigning from his current employment, received IN CASH OR CERTIFIED
FUNDS. It is agreed that such repayment of the Signing Bonus shall be
LIQUIDATED DAMAGES and are Company's SOLE AND ONLY REMEDY for Prospective
Employee's failure to resign from his current employment for the purpose of
joining the Company. Company expressly waives the remedies of specific
performance and additional damages.
20. The Company will reimburse Prospective Employee's family (either the
Prospective Employee or the spouse) for round-trip coach class airfare and
expenses to Denver, Colorado not to exceed ten trips during each twelve
(12) month period of employment. In additional to the ten trips, the
Company will reimburse Prospective Employee and the spouse for additional
two trips the cost of round-trip coach class airfare and expenses to
Denver, Colorado during the Holiday seasons i.e. November 22 through
December 31.
21. All information disclosed and discussed in writing or verbally by any party
(or its representative) in connection with the transaction contemplated by
this Agreement to any other party (or its representative) shall be kept
confidential by such other party and its representative.
22. Any notice or other communication hereunder must be given in writing and
(a) delivered in person, (b) transmitted by telex, telefax or other
telecommunications mechanism or (c) mailed by certified or registered mail,
postage prepaid, receipt requested, as follows:
If to Company addressed to:
ATG Inc.
47375 Fremont Boulevard
Fremont, CA 94538
Attention: Doreen Chiu, President and CEO
If to Prospective Employee, addressed to:
Vik Mani
7902 Glenridge Drive
Castle Rock, Colorado 80104
or to such other address or to such other person as either party shall
have last designated by such notice to the other party. Each such
notice or other communication shall be effective
(i) if given by telecommunication, immediately when transmitted to
the applicable number so specified in (or pursuant to) this
Section 22 and an electronic acknowledgement is recorded
(ii) if given by mail, three days after such communication is
deposited in the mails with first class postage prepaid,
addressed as aforesaid
(iii) if given by Express or Priority Mail, the date of mailing or
(iv) if given by any other means, when actually received at such
address.
23. This Agreement supersedes any and all prior written or oral agreements
between the Company and Perspective Employee and constitutes the entire
agreement between the parties with respect to the subject matter herein and
no modification, amendment, or waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by both parties.
24. Prospective Employee and the Company agree that any dispute or controversy
relating or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination shall be
settled by binding arbitration. The decision of the Arbitrator may enter as
a judgment in any court with competent jurisdiction. .
25. This Agreement is binding upon and benefits the heirs, executors, and legal
representatives of Prospective Employee and any successors of the Company.
Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. Successor shall
mean any firm, corporation, or other business entity which at any time
whether by purchase, merger, or otherwise, directly or indirectly acquires
all or substantially all of the assets or business of the Company.
26. The Prospective Employee is not required to Mitigate the amount of any
payment or benefit received pursuant to this Agreement due to cessation of
employment . Further, the Company cannot reduce any benefits or payments
because of any earnings or benefits that Prospective Employee may receive
from any other source known to the Company. Notwithstanding the foregoing,
the Prospective Employee is not required to inform the Company of any
retirement benefits received from present or previous employers, and such
retirement benefits shall not reduce the liability of the Company
hereunder.
27. 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 and
the same agreement. Facsimile signatures are deemed to be originals for the
purposes of this Agreement.
28. All agreements and covenants contained herein are severable, and, in the
event any one of them, with the exception of those contained in reference
to the duties to be performed by the Prospective Employee and his
compensation, shall be held to be invalid by any competent court, this
Agreement shall be interpreted as if such invalid agreements or covenants
were not contained herein.
29. Any ambiguity in this Agreement will be not be construed in favor of either
party.
30. ATG represents that no claims have been paid and there are no claims
currently pending on the existing Directors and Officers Liability
Insurance Policies with Executive Risk Indemnity Inc. and Genesis Insurance
Company. ATG further represents that these policies will be renewed or
policies with comparable coverage and limits of liability purchased and in
effect prior to the expiration of the current insurance policies on May 6,
2001. ATG will provide Prospective Employee with written confirmation of
the foregoing from its insurance agent within 14 days of execution of this
Agreement.
31. The Company hereby represents that this Agreement has been approved by its
Board of Directors and agrees to hold harmless Prospective Employee if the
Board of Directors has not approved this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer or individually as of the day and year
first above written.
Company Prospective Employee
ATG, Inc.
By /s/ Doreen M. Chiu /s/ Vik Mani
ATG, Inc. President & CEO Vik Mani