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EXHIBIT 10.14
NEWQUEST, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of March 1, 2005, between NewQuest,
Inc., a
Delaware corporation (the "Company"), and John Murray Blackshear
("Executive").
The execution and delivery of this Agreement by the Company
and
Executive are conditions to the Company's obligations to
consummate the
transactions contemplated by that certain Purchase and Exchange
Agreement, dated
as of November 10 2004, among NewQuest, LLC, a Texas limited
liability company
("NQLLC"), NewQuest Holdings, Inc., a Delaware corporation
("Holdings"), the
Company and certain other persons identified therein (the
"Purchase Agreement").
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
President, Texas Division of the Company and Holdings and shall
have the normal
duties, responsibilities, functions and authority of the
President, Texas
Division, subject to the power and authority of the Company's
Chief Operating
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 Operating 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
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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
$315,000 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, and shall be
reimbursed up to
$400 per month as an allowance for Executive's automobile. 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 50% 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.
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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 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
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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.
(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 Operating 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 Houston, Texas
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.
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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 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.
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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 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
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