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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
Subsidiari
