EXHIBIT 10.16
NEWQUEST, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of April 18, 2005, between NewQuest, Inc., a
Delaware corporation (the "Company"), and Xxxxx XxXxxxxx ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Chief
Financial Officer of the Company and Holdings and shall have the normal duties,
responsibilities, functions and authority of the Chief Financial Officer,
subject to the power and authority of the Company's Chief Executive Officer to
expand or limit such duties, responsibilities, functions and authority and to
overrule actions of officers of the Company and Holdings. During the Employment
Period, Executive shall render such administrative, financial and other
executive and managerial services to Holdings, the Company and their respective
Subsidiaries which are consistent with Executive's position as the Board may
from time to time reasonably direct.
(b) During the Employment Period, Executive shall report to the
Company's Chief Executive Officer and shall devote his full business time and
attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of Holdings, the
Company and their respective Subsidiaries. Executive shall perform his duties,
responsibilities and functions to Holdings, the Company and their respective
Subsidiaries hereunder in good faith in a diligent, trustworthy and professional
manner and shall comply with Holdings', the Company's and their respective
Subsidiaries' policies and procedures in all material respects. During the
Employment Period, Executive shall not serve as an officer or director of, or
otherwise perform services for compensation for, any other entity without the
prior written consent of the Board (which shall not be unreasonably withheld,
conditioned or delayed); provided that Executive may participate on boards of
charitable entities or other civic entities so long as such service does not
materially interfere with Executive's duties under this Agreement.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation or other entity of which the securities or other ownership interests
having the voting power to
elect a majority of the board of directors or other governing body are, at the
time of determination, owned by Holdings or the Company, directly or through one
or more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall be
$350,000 per annum or such higher rate as the Board may determine from time to
time (as adjusted from time to time, the "Base Salary"), which salary shall be
payable by the Company or one of its Subsidiaries in regular installments in
accordance with such entity's general payroll practices (in effect from time to
time). During the period beginning on the date of this Agreement and ending
December 31, 2005, the Base Salary shall be pro rated on an annualized basis. In
addition, during the Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
During the Employment Period, Executive shall also be entitled to five weeks of
paid vacation each calendar year in accordance with the Company's policies,
which if not taken during any year may not be carried forward, other than with
respect to one week per year, to any subsequent calendar year and no
compensation shall be payable in lieu thereof. The Company or one of its
affiliates or Subsidiaries shall obtain and maintain customary directors and
officers' liability insurance coverage covering Executive on terms reasonably
satisfactory to the Board.
(b) In addition to the Base Salary, Executive shall be eligible for an
annual bonus in an amount up to 75% of the Base Salary then in effect following
the end of each fiscal year of the Company (ending December 31) based upon the
achievement by Executive and the Company and its Subsidiaries of budgetary and
other objectives set by the Board, in consultation with the Chief Executive
Officer and the Chief Operating Officer; provided that with respect to the first
year for which Executive is eligible for a bonus, such bonus shall be paid on a
pro rata basis based upon that portion of the year that remained after the date
hereof. Such bonus shall be paid on or before March 15 of the following year.
(c) During the Employment Period, the Company or one of its
Subsidiaries shall reimburse Executive for all reasonable business expenses
incurred by him in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company's and its
Subsidiaries' policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's and its
Subsidiaries' requirements with respect to reporting and documentation of such
expenses.
(d) All amounts payable to Executive as compensation hereunder shall
be subject to all required and customary withholding by the Company.
4. Term.
(a) The Employment Period will continue until (i) Executive's
resignation, Disability (as defined in paragraph 4(f) below) or death, or (ii)
the Board decides to terminate Executive's employment with or without Cause (as
defined in paragraph 4(e) below). Except as
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otherwise provided herein, any termination of the Employment Period by the
Company shall be effective as specified in a written notice from the Company to
Executive.
(b) If the Employment Period is terminated by the Company without
Cause or upon Executive's resignation with Good Reason, Executive shall be
entitled to (x) continue to receive his Base Salary payable in regular
installments and (y) to continue to participate in employee benefit programs for
senior executive employees (other than bonus and incentive compensation plans),
at the Company's cost, to the extent permitted under the terms of such programs
and under applicable law, as special severance payments from the date of
termination for a period of twelve (12) months thereafter (the "Severance
Period") if and only if Executive has executed and delivered to the Company the
General Release substantially in form and substance as set forth in Exhibit A
attached hereto and the General Release has become effective, and only so long
as Executive has not revoked or breached the provisions of the General Release
or breached the provisions of paragraphs 5, 6 or 7 hereof and does not apply for
unemployment compensation chargeable to Holdings, the Company or any Subsidiary
during the Severance Period, and Executive shall not be entitled to any other
salary, compensation or benefits after termination of the Employment Period,
except as specifically provided for in the Company's employee benefit plans or
as otherwise expressly required by applicable law. The amounts payable pursuant
to this paragraph 4(b) shall be payable in regular monthly installments. Unless
Executive is terminated by the Company or its successor without Cause in
connection with a Sale of the Company (as defined below), the amounts payable
pursuant to this paragraph 4(b) shall be reduced by the amount of any
compensation Executive receives with respect to any other employment during the
Severance Period; provided that Executive shall have no duty or obligation to
seek other employment during the Severance Period or otherwise mitigate damages
hereunder. Upon request from time to time, Executive shall furnish the Company
with a true and complete certificate specifying any such compensation earned or
received by him during the Severance Period. For purposes of this Agreement,
"Sale of the Company" shall mean the sale of Holdings or the Company to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (y) 50% or more of the common stock of Holdings,
par value $.01 per share ("Common Stock") outstanding at the time of such
transaction or series of transactions or (z) all or substantially all of the
Company's assets determined on a consolidated basis. For purposes of this
Agreement, "Independent Third Party" shall mean any person who, immediately
prior to the contemplated transaction, does not own in excess of 5% of the
Common Stock on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendant (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other persons.
(c) If the Employment Period is terminated by the Company for Cause or
is terminated pursuant to clause (a)(i) above (other than termination with Good
Reason), Executive shall only be entitled to receive his Base Salary through the
date of termination or expiration and shall not be entitled to any other salary,
compensation or benefits from Holdings, the Company or any of their respective
Subsidiaries thereafter, except as otherwise specifically provided for under the
Company's employee benefit plans or as otherwise expressly required by
applicable law.
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(d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination or expiration
of the Employment Period shall cease upon such termination or expiration, other
than those expressly required under applicable law (such as COBRA). The Company
may offset any amounts Executive owes Holdings, the Company or any of their
respective Subsidiaries against any amounts Holdings, the Company or any of
their respective Subsidiaries owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" shall mean with respect to
Executive one or more of the following: (i) the conviction of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving material dishonesty or fraud with respect to the Company or any of its
Subsidiaries, (ii) reporting to work under the influence of illegal drugs, the
use of illegal drugs (whether or not at the workplace) or other repeated conduct
causing the Company or any of its Subsidiaries substantial public disgrace or
disrepute or substantial economic harm, which is not cured within 20 days
following written notice thereof to the Executive, (iii) material and repeated
failure to perform his duties as reasonably directed by the Board or the
Company's Chief Executive Officer, which is not cured within 20 days following
written notice thereof to the Executive, (iv) breach of fiduciary duty or
engaging in gross negligence or willful misconduct with respect to the Company
or any of its Subsidiaries or (v) any other material breach of this Agreement
which is not cured within 20 days after written notice thereof to Executive.
(f) For purposes of this Agreement, "Disability" shall mean the
disability of Executive caused by any physical or mental injury, illness or
incapacity as a result of which Executive is unable to effectively perform or
fails to perform the essential functions of Executive's duties for 90
consecutive days or 120 days during any 12-month period.
(g) For purposes of this Agreement, "Good Reason" shall mean if
Executive resigns from employment with Holdings, the Company and their
respective Subsidiaries prior to the end of the Employment Period as a result of
one or more of the following reasons: (i) the Company reduces the amount of the
Base Salary, (ii) Holdings or the Company materially reduces his
responsibilities, in each case which is not cured within 20 days after written
notice thereof to the Company, (iii) the relocation of the Company's principal
executive offices and/or the location at which Executive provides services
pursuant to this Agreement to a location outside the metropolitan Nashville,
Tennessee area, or (iv) the Company's material breach of this Agreement;
provided that written notice of Executive's resignation for Good Reason must be
delivered to the Company within 45 days after the occurrence of any such event
in order for Executive's resignation with Good Reason to be effective hereunder.
5. Confidential Information.
(a) Executive acknowledges that the information, observations and data
(including trade secrets) obtained by him while employed by the Company and its
Subsidiaries (including those obtained by him while employed by NQLLC or any of
its subsidiaries prior to the date of this Agreement and the acquisition of
NQLLC by Holdings and the Company) concerning the business or affairs of
Holdings or the Company or NQLLC or any other
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Subsidiary ("Confidential Information") are the property of Holdings, the
Company or such Subsidiary. Therefore, Executive agrees that, except as set
forth in, and pursuant to, this paragraph 5(a), he shall not disclose to any
unauthorized person or entity or use for his own purposes any Confidential
Information or any confidential or proprietary information of other persons or
entities in the possession of the Company and its Subsidiaries ("Third Party
Information"), without the prior written consent of the Board, unless and to the
extent that the Confidential Information or Third Party Information becomes
generally known to and available for use by the public other than as a result of
Executive's acts or omissions. In the event that Executive is requested or
required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information, such Executive shall notify
the Company promptly of the request or requirement so that the Company may seek
an appropriate protective order or waive compliance with the provisions of this
Section. If, in the absence of a protective order or the receipt of a waiver
hereunder, Executive is, on the advice of counsel, compelled to disclose any
Confidential Information to any tribunal, such Executive may disclose the
Confidential Information to the tribunal; provided that such disclosing
Executive shall use its reasonable best efforts to assist the Company to obtain,
at the request of the Company (and at the Company's sole expense), an order or
other assurance that confidential treatment shall be accorded to such portion of
the Confidential Information required to be disclosed as the Company shall
designate. Executive shall deliver to the Company at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer files, disks
and tapes, printouts and software and other documents and data (and copies
thereof) embodying or relating to Third Party Information, Confidential
Information, Work Product (as defined below) or the business of Holdings, the
Company, NQLLC or any other Subsidiaries which he may then possess or have under
his control.
(b) Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with
Holdings, the Company or any Subsidiary, Executive believes he is being asked to
engage in work that will, or will be likely to, jeopardize any confidentiality
or other obligations Executive may have to former employers, Executive shall
immediately advise the Chief Executive Officer and Chief Operating Officer so
that Executive's duties can be modified appropriately. Executive represents and
warrants to the Company that Executive took nothing with him which belonged to
any former employer when Executive left his prior position and that Executive
has nothing that contains any information which belongs to any former employer.
If at any time Executive discovers this is incorrect, Executive shall promptly
return any such materials to Executive's former employer. The Company does not
want any such materials, and Executive shall not be permitted to use or refer to
any such materials in the performance of Executive's duties hereunder.
6. Intellectual Property, Inventions and Patents. Executive
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any Confidential Information) and all registrations or applications related
thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to Holdings', the Company's
or any of their Subsidiaries' actual or
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anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive (whether alone
or jointly with others) while employed by Holdings, the Company and its
Subsidiaries, whether before or after the date of this Agreement ("Work
Product"), belong to Holdings, the Company or such Subsidiary. Executive shall
promptly disclose all patentable inventions and other material Work Product to
the Board and, at the Company's expense, perform all actions reasonably
requested by the Board (whether during or after the Employment Period) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments). Executive
acknowledges that all Work Product shall be deemed to constitute "works made for
hire" under the U.S. Copyright Act of 1976, as amended.
In accordance with Title 19, Section 805 of the Delaware Code,
Executive is hereby advised that this paragraph 6 regarding Holdings', the
Company's and their Subsidiaries' ownership of Work Product does not apply to
any invention for which no equipment, supplies, facilities or trade secret
information of Holdings, the Company or any Subsidiary was used and which was
developed entirely on Executive's own time, unless (i) the invention relates to
the business of Holdings, the Company or any Subsidiary or to Holdings', the
Company's or any Subsidiaries' actual or demonstrably anticipated research or
development or (ii) the invention results from any work performed by Executive
for Holdings, the Company or any Subsidiary.
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his
employment with the Company and its Subsidiaries he shall become familiar, and
during his employment with NQLLC or any of its subsidiaries he has become
familiar with Holdings', the Company's and their Subsidiaries' trade secrets and
with other Confidential Information concerning Holdings, the Company and their
predecessors and Subsidiaries and that his services have been and shall continue
to be of special, unique and extraordinary value to Holdings, the Company and
their Subsidiaries, including NQLLC, and therefore Executive agrees that, during
the Employment Period and for eighteen months thereafter (the "Noncompete
Period"), he shall not directly or indirectly own any interest in, manage,
control, participate in, consult with, render services for, be employed in an
executive, managerial or administrative capacity by, or in any manner engage in
any business competing with the businesses of Holdings, the Company or their
Subsidiaries, as such businesses exist during the Employment Period or, as of
the date of termination or expiration of the Employment Period, are contemplated
to exist during the eighteen-month period following the date of termination or
expiration of the Employment Period (the "Restricted Business") within any
geographical area in which Holdings, the Company or any of its Subsidiaries
engage or plan to engage during the eighteen-month period following the date of
termination or expiration of the Employment Period. Nothing herein shall
prohibit Executive from (i) being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such
corporation or (ii) becoming employed, engaged, associated or otherwise
participating with a separately managed division or Subsidiary of a competitive
business that does not engage in the Restricted Business (provided that services
are provided only to such division or Subsidiary).
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(b) During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce any
employee of Holdings, the Company or any Subsidiary to leave the employ of
Holdings, the Company or such Subsidiary, or in any way interfere with the
relationship between Holdings, the Company or any Subsidiary and any employee
thereof, (ii) hire any person who was an employee of Holdings, the Company or
any Subsidiary at any time during the 18-month period immediately prior to the
termination of the Employment Period or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation of
Holdings, the Company or any Subsidiary to cease doing business with Holdings,
the Company or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and Holdings,
the Company or any Subsidiary (including, without limitation, making any
negative or disparaging statements or communications regarding Holdings, the
Company or its Subsidiaries). Notwithstanding the foregoing, nothing in this
Agreement shall prohibit Executive from employing an individual (i) with the
consent of the Company or (ii) who responded to general solicitations in
publications or on websites, or through the use of search firms, so long as such
general solicitations or search firm activities are not targeted specifically at
an employee of Holdings, the Company or any of their respective Subsidiaries. In
addition, nothing in this Agreement will prohibit the making of any truthful
statements made by any Person in response to a lawful subpoena or legal
proceeding or to enforce such Person's rights under this Agreement, or any other
agreement between Executive, Holdings, the Company and their respective
Subsidiaries.
8. Enforcement. If, at the time of enforcement of paragraph 5, 6, or 7
of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential Information
and Work Product, the parties hereto agree that Holdings, the Company and its
Subsidiaries would suffer irreparable harm from a breach of paragraph 5, 6 or 7
by Executive and that money damages would not be an adequate remedy for any such
breach of this Agreement. Therefore, in the event a breach or threatened breach
of this Agreement, the Company or its successors or assigns, in addition to
other rights and remedies existing in their favor, shall be entitled to specific
performance and/or injunctive or other equitable relief from a court of
competent jurisdiction in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security). In addition, in
the event of a breach or violation by Executive of paragraph 7, the Noncompete
Period shall be automatically extended by the amount of time between the initial
occurrence of the breach or violation and when such breach or violation has been
duly cured. Executive acknowledges that the restrictions contained in paragraph
7 are reasonable and that he has reviewed the provisions of this Agreement with
his legal counsel.
9. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii)
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Executive is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity, except
for that certain Non-Competition Agreement, which shall remain in full force and
effect after the date hereof until the termination of such agreement in
accordance with the terms thereof, and (iii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms. Executive
hereby acknowledges and represents that he has consulted with independent legal
counsel regarding his rights and obligations under this Agreement and that he
fully understands the terms and conditions contained herein. The Company hereby
represents and warrants to Executive that (i) the execution, delivery and
performance of this Agreement by the Company do not and shall not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which the Company is a party or by which it is
bound and (ii) upon the execution and delivery of this Agreement by Executive,
this Agreement shall be the valid and binding obligation of the Company,
enforceable in accordance with its terms.
10. Survival. Paragraphs 4 through 24, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
11. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxxxx XxXxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Notices to the Company:
NewQuest, Inc.
00 Xxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, P.C.
Xxxxxxx X. Fine, Esq.
Fax: (000) 000-0000
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
12. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any action in any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
13. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way
excluding, however, the Non-Competition Agreement between Executive and NQLLC,
dated March 22, 2004, which shall remain in full force and effect after the date
hereof until the termination of such agreement in accordance with the terms
thereof.
14. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
15. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
16. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his duties or obligations hereunder without the prior
written consent of the Company.
17. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
18. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any
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party hereto in enforcing or exercising any of the provisions of this Agreement
(including, without limitation, the Company's right to terminate the Employment
Period for any reason) shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any
provision of this Agreement.
19. Insurance. The Company may, at its discretion, apply for and
procure in its own name and for its own benefit life and/or disability insurance
on Executive in any amount or amounts considered advisable. Executive agrees to
reasonably cooperate in any medical or other examination, supply any information
reasonably requested and execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute
such insurance. Executive hereby represents that he has no reason to believe
that his life is not insurable at rates now prevailing for healthy men of his
age.
20. Indemnification and Reimbursement of Payments on Behalf of
Executive. The Company and its Subsidiaries shall be entitled to deduct or
withhold from any amounts owing from Holdings, the Company or any of their
Subsidiaries to Executive any federal, state, local or foreign withholding
taxes, excise tax, or employment taxes ("Taxes") imposed with respect to
Executive's compensation (including, without limitation, wages, bonuses,
dividends, the receipt or exercise of equity options and/or the receipt or
vesting of restricted equity). In the event the Company or any of its
Subsidiaries does not make such deductions or withholdings, Executive shall
indemnify the Company and its Subsidiaries for any amounts paid with respect to
any such Taxes.
21. Consent to Jurisdiction. EACH OF THE PARTIES HERETO SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN CHICAGO, ILLINOIS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN AND AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE
PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER
SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO. ANY
PARTY MAY MAKE SERVICE ON ANY OTHER PARTY BY SENDING OR DELIVERING A COPY OF THE
PROCESS (I) TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED
FOR THE GIVING OF NOTICES IN PARAGRAPH 11 ABOVE, OR (II) TO THE PARTY TO BE
SERVED IN CARE OF SUCH PARTY'S REGISTERED AGENT IN THE MANNER PROVIDED FOR THE
GIVING OF NOTICES IN PARAGRAPH 11 ABOVE. NOTHING IN THIS PARAGRAPH 21 HOWEVER
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. EACH PARTY AGREES THAT A FINAL JUDGMENT (AFTER GIVING EFFECT
TO ANY TIMELY APPEALS) IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
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22. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT
FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE
OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN
ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
23. Corporate Opportunity. During the Employment Period, Executive
shall submit to the Board all material business, commercial and investment
opportunities or offers presented to Executive or of which Executive becomes
aware in his capacity as an officer of the Company which relate to the business
of the Company or its Subsidiaries at any time during the Employment Period
("Corporate Opportunities"). Unless approved by the Board, Executive shall not
accept or pursue, directly or indirectly, any Corporate Opportunities on
Executive's own behalf.
24. Executive's Cooperation. During the Employment Period and
thereafter, Executive shall reasonably cooperate with the Company and its
Subsidiaries in any internal investigation, any administrative, regulatory or
judicial investigation or proceeding or any dispute with a third party as
reasonably requested by the Company (including, without limitation, Executive
being available to the Company upon reasonable notice and at reasonable times
for interviews and factual investigations, appearing at the Company's request
upon reasonable notice and at reasonable times to give testimony without
requiring service of a subpoena or other legal process, delivering to the
Company requested information and relevant documents which are or may come into
Executive's possession, all at times and on schedules that are reasonably
consistent with Executive's other permitted activities and commitments). In the
event the Company requests Executive's cooperation in accordance with this
paragraph, the Company shall (i) reimburse Executive for all reasonable travel
expenses and other reasonable out-of-pocket expenses (including lodging and
meals) upon submission of receipts and (ii) reimburse Executive for all
reasonable fees and expenses, including without limitation all attorneys fees
and expenses, incurred by Executive in connection with any such investigation or
proceeding. Notwithstanding anything contained herein to the contrary, Executive
shall not be required to cooperate or assist the Company in any such
investigation or proceeding in the event that (i) legal counsel to Executive
advises him that a reasonable likelihood exists of a conflict of interest
between the Company and its Affiliates and Executive or (ii) cooperation with
the Company could incriminate the Executive or adversely affect the defense by
Executive of any investigation, claim or proceeding.
* * * * *
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
NEWQUEST, INC.
By:
------------------------------------
Its:
-----------------------------------
----------------------------------------
XXXXX XXXXXXXX
D-1
Exhibit A
GENERAL RELEASE
I, Xxxxx XxXxxxxx, in consideration of and subject to the performance by
NewQuest, Inc., a Delaware corporation (together NewQuest Holdings, Inc. and
each of their respective subsidiaries, the "Company"), of its obligations under
the Employment Agreement, dated as of the date as of April 18, 2005 (the
"Agreement"), do hereby release and forever discharge as of the date hereof the
Company and its affiliates and all present and former directors, officers,
agents, representatives, employees, successors and assigns of the Company and
its affiliates and the Company's direct or indirect owners (collectively, the
"Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
paragraph 4(b) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to which
I was already entitled. I understand and agree that I will not receive the
payments and benefits specified in paragraph 4(b) of the Agreement unless I
execute this General Release and do not revoke this General Release within
the time period permitted hereafter or breach this General Release. Such
payments and benefits will not be considered compensation for purposes of
any employee benefit plan, program, policy or arrangement maintained or
hereafter established by the Company or its affiliates. I also acknowledge
and represent that I have received all payments and benefits that I am
entitled to receive (as of the date hereof) by virtue of any employment by
the Company.
2. Except as provided in paragraph 4 below and except for the provisions of my
Employment Agreement which expressly survive the termination of my
employment with the Company, I knowingly and voluntarily (for myself, my
heirs, executors, administrators and assigns) release and forever discharge
the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, crossclaims, counterclaims,
demands, debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs and attorneys' fees, or
liabilities of any nature whatsoever in law and in equity, both past and
present (through the date this General Release becomes effective and
enforceable) and whether known or unknown, suspected, or claimed against
the Company or any of the Released Parties which I, my spouse, or any of my
heirs, executors, administrators or assigns, may have, which arise out of
or are connected with my employment with, or my separation or termination
from, the Company (including, but not limited to, any allegation, claim or
violation, arising under: Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in Employment
Act of 1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Worker Adjustment Retraining and Notification Act; the Employee Retirement
Income Security Act of 1974; any applicable Executive Order Programs; the
Fair Labor Standards Act; or their state or local counterparts; or under
any other federal, state or local civil or human rights law, or under any
other local, state, or federal law,
ExB-1
regulation or ordinance; or under any public policy, contract or tort, or
under common law; or arising under any policies, practices or procedures of
the Company; or any claim for wrongful discharge, breach of contract,
infliction of emotional distress, defamation; or any claim for costs, fees,
or other expenses, including attorneys' fees incurred in these matters)
(all of the foregoing collectively referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2 above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under the
Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim seeking
damages against the Company, or in the event I should seek to recover
against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such
Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also
agree that if I violate this General Release by suing the Company or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees, and return all payments received by me pursuant to the
Agreement.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as
ExB-2
required by law, and I will instruct each of the foregoing not to disclose
the same to anyone. Notwithstanding anything herein to the contrary, each
of the parties (and each affiliate and person acting on behalf of any such
party) agree that each party (and each employee, representative, and other
agent of such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of this
transaction contemplated in the Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to such party
or such person relating to such tax treatment and tax structure, except to
the extent necessary to comply with any applicable federal or state
securities laws. This authorization is not intended to permit disclosure of
any other information including (without limitation) (i) any portion of any
materials to the extent not related to the tax treatment or tax structure
of this transaction, (ii) the identities of participants or potential
participants in the Agreement, (iii) any financial information (except to
the extent such information is related to the tax treatment or tax
structure of this transaction), or (iv) any other term or detail not
relevant to the tax treatment or the tax structure of this transaction.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National Association of Securities
Dealers, Inc. (NASD), any other self-regulatory organization or
governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation, any administrative, regulatory, or judicial proceeding or
any dispute with a third party on the terms and subject to the limitations
set forth in paragraph 24 of the Agreement.
11. I agree not to disparage the Company, its past and present investors,
officers, directors or employees or its affiliates and to keep all
confidential and proprietary information about the past or present business
affairs of the Company and its affiliates confidential in accordance with
the terms of the Agreement unless a prior written release from the Company
is obtained. I further agree that as of the date hereof, I have returned to
the Company any and all property, tangible or intangible, relating to its
business, which I possessed or had control over at any time (including, but
not limited to, company-provided credit cards, building or office access
cards, keys, computer equipment, manuals, files, documents, records,
software, customer data base and other data) and that I shall not retain
any copies, compilations, extracts, excerpts, summaries or other notes of
any such manuals, files, documents, records, software, customer data base
or other data.
12. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect (i)
any rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement after the date hereof, (ii) any rights or
obligations under applicable law which cannot be waived or released
pursuant to an agreement, (iii) any rights to payments or benefits under
paragraph 4(b) of the Agreement, (iv) my rights of indemnification and
directors and officers insurance coverage to which I may be entitled solely
with regards to my service
ExB-3
as an officer or director of the Company; (v) my rights with regard to
accrued benefits under any employee benefit plan, policy or arrangement
maintained by the Company or under COBRA; and (vi) my rights as a
stockholder or other equityholder of the Company and/or its affiliates.
13. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON [_______________ __, _____] TO CONSIDER
IT AND THE CHANGES MADE SINCE THE [_______________ __, _____] VERSION OF
THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY
PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE [_______________ ___, _____] EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
ExB-4
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: _____________ __________________________________
ExB-5
