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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 7, 1998
REGISTRATION NO. 333-45957
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ICARUS INTERNATIONAL, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
MARYLAND
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
7372
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
52-2069941
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
600 JEFFERSON PLAZA
FIFTH FLOOR
ROCKVILLE, MARYLAND 20852
(301) 424-4646
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL
EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS)
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Copies to:
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JEFFREY A. KOEPPEL, ESQ. HERBERT G. BLECKER, PRESIDENT HARLAN P. COHEN, ESQ.
FIORELLO J. VICENCIO, ESQ. ICARUS INTERNATIONAL, INC. JOHN B. MCKNIGHT, ESQ.
ELIAS, MATZ, TIERNAN & HERRICK 600 JEFFERSON PLAZA, LOCKE PURNELL RAIN HARRELL
L.L.P. FIFTH FLOOR (A PROFESSIONAL CORPORATION)
734 15TH STREET, N.W. ROCKVILLE, MARYLAND 20852 2200 ROSS AVENUE
12TH FLOOR (301) 424-4646 SUITE 2200
WASHINGTON, D.C. 20005 DALLAS, TEXAS 75201
(202) 347-0300 (214) 740-8000
</TABLE>
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The purpose of the filing of this Amendment No. 3 to the Registration
Statement on Form SB-2 of ICARUS International, Inc. is to make certain
revisions in Part II of the Registration Statement and to file certain Exhibits
to the Registration Statement that either have not been previously filed or that
have been revised.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ICARUS International, Inc. (the "Company") is a Maryland corporation.
Section 2-405.1(c) of the Maryland General Corporation Law (the "MGCL") states:
"(c) A person who performs his duties in accordance with the standard
provided in this section shall have the immunity from liability described
under Section 5-417 of the Courts and Judicial Proceedings Article."
Section 5-417 of the Maryland Courts and Judicial Proceedings Article
states:
"A person who performs the duties of that person in accordance with
the standard provided under Section 2-405.1 of the Corporations and
Associations Article has no liability by reason of being or having been a
director of a corporation."
Section 2-418 of the MGCL states:
"(a) In this section the following words have the meaning indicated.
(1) "Director" means any person who is or was a director of a
corporation and any person who, while a director of a corporation, is or
was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or
employee benefit plan.
(2) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger, consolidation, or other transaction
in which the predecessor's existence ceased upon consummation of the
transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the office of director
in the corporation; and
(ii) When used with respect to a person other than a director as
contemplated in subsection (j), the elective or appointive office in
the corporation held by the officer, or the employment or agency
relationship undertaken by the employee or agent in behalf of the
corporation.
(iii) "Official capacity" does not include service for any other
foreign or domestic corporation or any partnership, joint venture,
trust, other enterprise, or employee benefit plan.
(5) "Party" includes a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether the civil, criminal, administrative, or
investigative.
(b)(1) A corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity unless it is established
that:
(i) The act or omission of the director was material to the
matter giving rise to the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and deliberate dishonesty; or
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(ii) The director actually received an improper personal benefit
in money, property, or services; or
(iii) In the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful.
(2)(i) Indemnification may be against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by the director
in connection with the proceeding.
(ii) However, if the proceeding was one by or in the right of
the corporation, indemnification may not be made in respect of any
proceeding in which the director shall have been adjudged to be
liable to the corporation.
(3)(i) The termination of any proceeding by judgment, order, or
settlement does not create a presumption that the director did not meet
the requisite standard of conduct set forth in this subsection.
(ii) The termination of any proceeding by conviction, or a plea
of nolo contendere or its equivalent, or an entry of an order of
probation prior to judgment, creates a rebuttable presumption that
the director did not meet that standard of conduct.
(c) A director may not be indemnified under subsection (B) of this
section in respect of any proceeding charging improper personal benefit to
the director, whether or not involving action in the director's official
capacity, in which the director was adjudged to be liable on the basis that
person benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the merits or otherwise,
in the defense of any proceeding referred to in subsection (B) of this
section shall be indemnified against reasonable expenses incurred by the
director in connection with the proceeding.
(2) A court of appropriate jurisdiction upon application of a
director and such notice as the court shall require, may order
indemnification in the following circumstances:
(i) If it determines a director is entitled to reimbursement
under paragraph (1) of this subsection, the court shall order
indemnification, in which case the director shall be entitled to
recover the expenses of securing such reimbursement; or
(ii) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not the director has met the standards of
conduct set forth in subsection (b) of this section or has been
adjudged liable under the circumstances described in subsection (c)
of this section, the court may order such indemnification as the
court shall deem proper. However, indemnification with respect to any
proceeding by or in the right of the corporation or in which
liability shall have been adjudged in the circumstances described in
subsection (c) shall be limited to expenses.
(3) A court of appropriate jurisdiction may be the same court in
which the proceeding involving the director's liability took place.
(e)(1) Indemnification under subsection (b) of this section may not be
made by the corporation unless authorized for a specific proceeding after a
determination has been made that indemnification of the director is
permissible in the circumstances because the director has met the standard
of conduct set forth in subsection (b) of this section.
(2) Such determination shall be made:
(i) By the board of directors by a majority vote of a quorum
consisting of directors not, at the time, parties to the proceeding,
or, if such a quorum cannot be obtained, then by a majority vote of a
committee of the board consisting solely of two or more directors
not, at the time,
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parties to such proceeding and who were duly designated to act in the
matter by a majority vote of the full board in which the designated
directors who are parties may participate;
(ii) By special legal counsel selected by the board of directors
or a committee of the board by vote as set forth in subparagraph (i)
of this paragraph, or, if the requisite quorum of the full board
cannot be obtained therefor and the committee cannot be established,
by a majority vote of the full board in which director who are
parties may participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible. However, if the
determination that indemnification is permissible is made by special
legal counsel, authorization of indemnification and determination as to
reasonableness of expenses shall be made in the manner specified in
subparagraph (ii) of paragraph (2) of this subsection for selection of
such counsel.
(4) Shares held by directors who are parties to the proceeding may
not be voted on the subject matter under this subsection.
(f)(1) Reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the corporation in advance of the
final disposition of the proceeding upon receipt by the corporation of:
(i) A written affirmation by the director of the director's good
faith belief that the standard of conduct necessary for
indemnification by the corporation as authorized in this section has
been met; and
(ii) A written undertaking by or on behalf of the director to
repay the amount if it shall ultimately be determined that the
standard of conduct has not been met.
(2) The undertaking required by subparagraph (ii) of paragraph (1)
of this subsection shall be an unlimited general obligation of the
director but need not be secured and may be accepted without reference
to financial ability to make the repayment.
(3) Payments under this subsection shall be made as provided by the
charter, bylaws, or contract or as specified in subsection (e) of this
section.
(g) The indemnification and advancement of expenses provided or
authorized by this section may not be deemed exclusive of any other rights,
by indemnification or otherwise, to which a director may be entitled under
the charter, the bylaws, a resolution of stockholders or directors, an
agreement or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office.
(h) This section does not limit the corporation's power to pay or
reimburse expenses incurred by a director in connection with an appearance
as a witness in a proceeding at a time when the director has not been made
a named defendant or respondent in the proceeding.
(i) For purposes of this section:
(1) The corporation shall be deemed to have requested a director to
serve an employee benefit plan where the performance of the director's
duties to the corporation also imposes duties on, or otherwise involves
services by, the director to the plan or participants or beneficiaries
of the plan;
(2) Excise taxes assessed on a director with respect to an employee
benefit plan pursuant to applicable law shall be deemed fines; and
(3) Action taken or omitted by the director with respect to an
employee benefit plan in the performance of the director's duties for a
purpose reasonably believed by the director to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of the corporation.
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(j) Unless limited by the charter:
(1) An officer of the corporation shall be indemnified as and to
the extent provided in subsection (d) of this section for a director and
shall be entitled, to the same extent as a director, to seek
indemnification pursuant to the provisions of subsection (d);
(2) A corporation may indemnify and advance expenses to an officer,
employee, or agent of the corporation to the same extent that it may
indemnify directors under this section; and
(3) A corporation, in addition, may indemnify and advance expenses
to an officer, employee, or agent who is not a director to such further
extent, consistent with law, as may be provided by its charter, bylaws,
general or specific action of its board of directors or contract.
(k)(1) A corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, other
enterprise, or employee benefit plan against any liability asserted against
and incurred by such person in any such capacity or arising out of such
person's position, whether or not the corporation would have the power to
indemnify against liability under the provisions of this section.
(2) A corporation may provide similar protection, including a trust
fund, letter of credit, or surety bond, not inconsistent with this
section.
(3) The insurance or similar protection may be provided by a
subsidiary or an affiliate of the corporation.
(l) Any indemnification of, or advance of expenses to, a director in
accordance with this section, if arising out of a proceeding by or in the
right of the corporation, shall be reported in writing to the stockholders
with the notice of the next stockholders' meeting or prior to the meeting."
The Articles of Incorporation ("Articles") of the Company also limit the
liability of, and provide indemnification to, directors and officers of the
Company. Article VIII of the Company's Articles states:
"A. Limitation of Liability. No director who has performed his or
her duties in accordance with the standard set forth in Section 2-405.1 of
the MGCL (or any successor provision thereto) shall be personally liable to
the Corporation or its stockholders for monetary damages for any act or
omission by such director as a director; provided that a director's
liability shall not be limited or eliminated to the extent that: (i) it is
proved that the director actually received an improper benefit or profit in
money, property or services for the amount of the benefit or profit in
money, property or services actually received; or (ii) a judgment or other
final adjudication adverse to the director is entered in a proceeding based
on a finding in the proceeding that the director's action, or failure to
act, was the result of active and deliberate dishonesty and was material to
the cause of action adjudicated in the proceeding. No amendment to or
repeal of this Article VIII.A. shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to
such amendment.
B. Indemnification. The Corporation shall indemnify any person who
was or is a party or is threatened to be a made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, by reason of the fact that
such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust or other enterprise or
employee benefit plan, against liability and expenses (including court
costs and attorney's fees), judgments, fines, excise taxes and amounts paid
in satisfaction, settlement or compromise actually and reasonably incurred
by such person in connection with such action, suit or proceeding to the
full extent authorized by Section 2-418 of the MGCL or any successor
provision thereto.
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C. Advancement of Expenses. Reasonable expenses incurred by a
director, officer, employee or agent of the Corporation in defending a
civil or criminal action, suit or proceeding described in Article VIII.B.
shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors
only upon receipt of written affirmation by or on behalf of such person of
his good faith belief that he has met the standard of conduct necessary for
indemnification under relevant law and a written undertaking to repay such
amount if it shall ultimately be determined that the person has not met
that standard.
D. Other Rights and Remedies. The indemnification provided by this
Article VIII shall not be deemed to exclude any other rights to which those
seeking indemnification or advancement of expenses may be entitled under
the Corporation's Articles of Incorporation, any insurance or other
agreement, trust fund, letter of credit, surety bond, vote of stockholders
or disinterested directors or otherwise, both as to actions in their
official capacity and as to actions in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person; provided that no
indemnification shall be made to or on behalf of an individual if a
judgment or other final adjudication establishes that his actions, or
omissions to act, were material to the cause of action as adjudicated and
(i) were committed in bad faith; or (ii) were the result of active and
deliberate dishonesty; or (iii) the director actually received an improper
personal benefit in money, property or services; or (iv) in the case of any
criminal proceedings, the director had reasonable cause to believe that the
act or omission was unlawful; provided, however, that a director who has
been successful, on the merits or otherwise, in the defense of proceedings
referred to under clauses (i) through (iv) above, may still be indemnified
as to reasonable expenses actually incurred by such person in connection
with the proceeding as approved by a disinterested majority of the Board of
Directors.
E. Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation, or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, limited liability company, partnership,
joint venture, trust or another enterprise or employee benefit plan,
against any liability asserted against him or incurred by him in any such
capacity, or arising out of his status, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article or the MGCL.
F. Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer, employee or agent provided in this
Article VIII shall be in the nature of a contract between the Corporation
and each such director, officer, employee or agent and no amendment or
repeal of any provision of this Article VIII shall alter, to the detriment
of such director, officer, employee or agent, the right of such person to
the advance of expenses or indemnification related to a claim based on an
act or failure to act which took place prior to such amendment or repeal.
G. Proceedings Initiated by Indemnified Persons. Notwithstanding any
other provision of this Article VIII, the Corporation shall not indemnify a
director, officer, employee or agent for any liability incurred in an
action, suit or proceeding initiated by (which shall not be deemed to
include counter-claims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless
such initiation of or participation in the action, suit or proceeding is
authorized, either before or after its commencement, by the affirmative
vote of a disinterested majority of the directors then in office or unless
intervention is required by law in order to protect the rights, claims or
defenses of the director, officer, employee or agent with respect to
matters for which the Corporation shall otherwise be required to provide
indemnification hereunder."
Article X of the Company's Bylaws states:
"(a) A director of the Corporation shall not be personally liable for
monetary damages for action taken, or any failure to take action, as a
director, to the extent set forth in the Corporation's Articles of
Incorporation, which provisions are incorporated herein with the same
affect as if they were set forth herein.
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(b) The Corporation shall indemnify any person who is a director,
officer, employee or agent of the Corporation to the extent set forth in
the Corporation's Articles of Incorporation, which provisions are
incorporated herein with the same affect as if they were set forth herein."
In addition, the Company intends to obtain a directors and officers
liability insurance policy relating to certain actions or omissions which may be
taken, or omitted to be taken, by the directors and officers of the Company, as
well as a policy which insures against errors and omissions in the offering
documents relating to the offer and sale of the Common Stock to the public.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the expenses to be incurred in connection
with the offering of the Common Stock described herein.
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SEC filing fee.............................................. $ 7,635
NASD filing fee............................................. 3,088
Legal fees and expenses..................................... 500,000
Accounting fees and expenses................................ 500,000
Printing and delivery expenses.............................. 150,000
Blue Sky legal fees and expenses............................ 10,000
Registrar and transfer agent fees and expenses.............. 4,750
Nasdaq Market listing fees and expenses..................... 63,725
CUSIP fees and expenses..................................... 100
Miscellaneous expenses...................................... 5,000
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Estimated Total........................................... $1,244,298
==========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
On January 22, 1998, in connection with the Company's formation, ICARUS
sold 1,000 shares of Common Stock to Herbert G. Blecker and Eunice E. Blecker
(the "Bleckers") for a total of $1,000. The shares were issued by the Company in
a transaction not involving a public offering pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the "Securities Act").
Immediately prior to the Offering, pursuant to the Agreement and Plan of
Recapitalization by and among the Company and the Bleckers dated January 26,
1998, the Company will issue to the Bleckers an aggregate of 2,999,000 shares of
Common Stock and 100 shares of Series A Preferred Stock in exchange for all of
their shares of ICARUS Corporation and ISL. The issuance of such shares by the
Company will represent a transaction by the issuer not involving any public
offering pursuant to Section 4(2) of the Securities Act.
Other than the transactions described above the Company has sold no
unregistered securities within the past three years.
ITEM 27. EXHIBITS.
The Exhibits attached hereto are as follows:
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1.1 Form of Underwriting Agreement.*
2.1 Agreement and Plan of Recapitalization by and among Mr.
Herbert G. Blecker, Mrs. Eunice Blecker, ICARUS Corporation,
ICARUS Service Limited and the Company, dated January 26,
1998.*
3.1 Articles of Incorporation of the Company.*
3.2 Bylaws of the Company.*
4.1 Form of Stock Certificate of the Company.
5.1 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
10.1 Technology Licensing and Marketing Agreement by and between
ICARUS
</TABLE>
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Corporation and Richardson Engineering Services, Inc., dated May 1, 1997.+ *
10.2 Joint Development Agreement between ICARUS Development and Marketing Corporation and Hyprotech,
Ltd., dated July 24, 1997.+ *
10.3 Marketing and Development Agreement between ICARUS Corporation and SRI Consulting Inc., dated
August 4, 1997.+ *
10.4 Software Distribution and License Agreement between ICARUS Corporation and Primavera Systems,
Inc. dated January 17, 1995.+*
10.5 Lease for One Central Plaza, 11300 Rockville Pike, Rockville, Maryland by and between One
Central Plaza Limited Partnership and the Company, dated October 15, 1976, as amended.*
10.6 Lease for 600 Jefferson Plaza, Rockville, Maryland, by and between Allstate Life Insurance
Company and the Company, dated December 31, 1997.*
10.7 Lease for 16945 Northchase Drive, 14th Floor, Houston, Texas, by and between Greenpoint Plaza
Limited Partnership and the Company, dated January 31, 1997.*
10.8 Lease for Units 3 and 4, 4th floor, First Floor Storeroom and Car Parking, The Graftons,
Stamford New Road, Altrincham, Greater Manchester, by and between Wayborn Leasing Limited and
the Company, dated April 19, 1993.*
10.9 Lease for 5F Sakae Bldg., 2-10-3 Minami-Ikebukuro, Toshima-Ku, Tokyo 171 Japan, by and between
Saburo Ikeda and the Company, dated January 20, 1996.*
10.10 Employment Agreement between Mr. Herbert G. Blecker and the Company, dated January 22, 1998.*
10.11 Employment Agreement between Mr. William F. Geritz III and the Company, dated January 22, 1998.*
10.12 ICARUS International, Inc. 1998 Stock Option Plan.*
10.13 ICARUS International, Inc. Recognition and Retention Plan and Trust Agreement.*
10.14 Amendment, dated March 30, 1998, to lease for 600 Jefferson Plaza, Rockville, Maryland, by and
between Allstate Life Insurance Company and the Company, dated December 31, 1997.*
10.15 Amendment, dated January 21, 1998, to lease for One Central Plaza, 11300 Rockville Pike,
Rockville, Maryland, by and between the Company and One Central Plaza Limited Partnership.*
10.16 Employment Agreement between Mr. Peter L. Bower and the Company dated July 10, 1998.
10.17 Principal Stockholders Agreement by and between Herbert G. Blecker, Eunice E. Blecker and ICARUS
International, Inc.
10.18 Employment Agreement between Mr. Lawrence H. Fischer and the Company dated August 7, 1998.
21.1 List of Subsidiaries of the Company.*
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P. (Incorporated by reference to Exhibit 5.1).
23.2 Consent of Grant Thornton LLP.
24.1 Power of Attorney.*
27.1 Financial data schedule.*
</TABLE>
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* Previously filed.
+ Certain portions of this Exhibit have been omitted from this Registration
Statement and filed separately with the Commission accompanied by a request
for confidential treatment pursuant to Rule 406 under the Securities Act.
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ITEM 28. UNDERTAKINGS
The undersigned Registrant hereby provides the following undertakings:
(a) The Registrant will provide to the Underwriter at the closing
specified in the Underwriting Agreement certificates in such denominations
and registered in such names as required by the Underwriter to permit
prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
(c) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant under Rule 424(b)(1), or (4), or
497(h) under the Securities Act as part of this Registration Statement as
of the time the Commission declared it effective.
(d) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial
bona fide offering of those securities.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this Amendment No. 3
to the Registration Statement to be signed on its behalf by the undersigned, in
the City of Rockville, State of Maryland on August 7, 1998.
ICARUS INTERNATIONAL, INC.
By: /s/ HERBERT G. BLECKER
------------------------------------
HERBERT G. BLECKER
CHAIRMAN OF THE BOARD, PRESIDENT
CHIEF EXECUTIVE OFFICER
------------------------
In accordance with the requirements of the Securities Act of 1933, this
Amendment No. 3 to the Registration Statement has been signed by the following
persons in the capacities and on the dates stated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ HERBERT G. BLECKER Chairman of the Board, President August 7, 1998
- ------------------------------------------------ and Chief Executive Officer
HERBERT G. BLECKER (Principal executive officer)
/s/ PETER L. BOWER Chief Financial Officer August 7, 1998
- ------------------------------------------------ (Principal Accounting Officer
PETER L. BOWER and Principal Financial Officer)
/s/ EUNICE E. BLECKER Secretary and Treasurer August 7, 1998
- ------------------------------------------------
EUNICE E. BLECKER
/s/ JAMES J. BYRNE Director and Vice Chairman August 7, 1998
- ------------------------------------------------ of the Board
JAMES J. BYRNE
/s/ WILLIAM F. GERITZ, III Director and Executive August 7, 1998
- ------------------------------------------------ Vice President
WILLIAM F. GERITZ, III
/s/ GARY M. ROUSH Director August 7, 1998
- ------------------------------------------------
GARY M. ROUSH
/s/ J. EDWARD BECK, JR. Director August 7, 1998
- ------------------------------------------------
J. EDWARD BECK, JR.
</TABLE>
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EXHIBIT 4.1
[FORM OF STOCK CERTIFICATE]
[FRONT OF CERTIFICATE]
COMMON STOCK [CERTIFICATE NUMBER]
($.01 PAR VALUE PER SHARE) SEE REVERSE FOR CERTAIN
SHARES DEFINITIONS AND LIMITATIONS
- ------- CUSIP NO. 45102F108
ICARUS INTERNATIONAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This certifies that is the owner of
fully paid and non-assessable shares of the Common Stock, $.01 par
value per share, of ICARUS International, Inc., Rockville, Maryland (the
"Corporation"), a corporation organized under the laws of the State of
Maryland. The shares evidenced by this Certificate are transferable
on the books of the Corporation by the holder of record hereof, in
person or by a duly authorized attorney or legal representative, upon
surrender of this Certificate properly endorsed. This Certificate and
the shares represented hereby are subject to all the provisions of the
Corporation's Articles of Incorporation and Bylaws and all amendments
thereto. This Certificate is not valid unless countersigned and
registered by the Corporation's transfer agent and registrar.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed by the facsimile signatures of its duly
authorized officers and has caused its facsimile seal to be affixed
hereto.
Dated:
/s/ EUNICE E. BLECKER CORPORATE /s/ HERBERT G. BLECKER
- --------------------------------- SEAL ----------------------------------
Secretary MARYLAND President
1997
COUNTERSIGNED AND REGISTERED
REGISTRAR AND TRANSFER COMPANY
TRANSFER AGENT AND REGISTRAR
By
<PAGE> 2
[FORM OF BACK OF CERTIFICATE]
ICARUS INTERNATIONAL, INC.
Rockville, Maryland
The shares represented by this Certificate are subject to limitations
and restrictions as set forth in the Articles of Incorporation ("Articles") and
Bylaws ("Bylaws") of the Corporation as from time to time amended. The Articles
are on file in the office of the Maryland Department of Assessments and
Taxation, Baltimore, Maryland, and the Articles and the Bylaws are on file with
the Secretary of the Corporation at the Corporation's executive offices. The
Articles of the Corporation authorize the Corporation to issue more than one
class of stock, including classes of preferred stock, which may be issued in
one or more series. The Corporation will furnish to any stockholder upon
request and without charge a full statement of the designations, preferences,
limitations and relative rights of the shares of each class of stock authorized
to be issued and, with respect to the issuance of any preferred stock to be
issued in series, the relative rights and preferences between the shares of
each series so far as the rights and preferences have been fixed and determined
and the authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series.
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT -____________Custodian -____________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act__________________
in common (State)
UNIF TRAN MIN ACT -____________Custodian -____________
(Cust) (Minor)
under Uniform Transfers to Minors
Act__________________
(State)
</TABLE>
For value received, ___________________ hereby sell, assign and
transfer unto ___________________, ________________ Shares of the Common Stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ________________, Attorney to transfer the said Stock on the books of
the within named Corporation with full power of substitution in the premises.
Dated: ___________________
----------------------------------
NOTICE: THE SIGNATURE(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ENLARGEMENT
OR ANY CHANGE WHATEVER.
- --------------------------------
Signature(s) must be guaranteed
by a commercial bank or trust
company or a member firm of
a major stock exchange.
<PAGE> 1
EXHIBIT 5.1
[EMTH LETTERHEAD]
August 7, 1998
Board of Directors
ICARUS International, Inc.
600 Jefferson Plaza
Fifth Floor
Rockville, Maryland 20852
Gentlemen:
We have acted as special counsel to ICARUS International, Inc. (the
"Company") in connection with the preparation and filing by the Company with
the Securities and Exchange Commission ("SEC") of a Registration Statement on
Form SB-2 ("Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the public offering by the Company
of 2,300,000 shares (including 300,000 shares subject to an over-allotment
option) of common stock, par value $0.01 per share (the "Common Stock"), of the
Company, pursuant to the underwriting agreement (the "Underwriting Agreement")
by and among Hoak, Breedlove, Wesneski & Co., Dallas, Texas, and Laidlaw Global
Securities, Inc., New York, New York, as representatives of the several
underwriters, and the Company. Capitalized terms defined in the Registration
Statement and not otherwise defined herein are used herein with the meanings as
so defined.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement and
such corporate records, agreements, documents and other instruments, including
the Underwriting Agreement, and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant or necessary as a basis for the opinions hereinafter set forth.
<PAGE> 2
ICARUS International, Inc.
August 7, 1998
Page 2
In such examination, we have assumed without independent verification
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such latter documents. As to all questions of fact material to
this opinion that have not been independently established, we have relied upon
certificates or comparable documents of officers of the Company, and we have
also relied upon the representations and warranties of the Company contained in
the Underwriting Agreement and have relied upon the accuracy and completeness
thereof without independent verification.
Based on the foregoing, and subject to the qualifications stated
herein, as of the date hereof, we are of the opinion that:
The 2,300,000 shares of Common Stock of the Company to be registered
for sale by the Company under the Registration Statement have been
duly authorized, and, when issued and sold as contemplated in the
Registration Statement and the Underwriting Agreement upon receipt of
the required consideration therefor, will be validly issued, fully
paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included therein. In giving the foregoing
consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations
of the SEC promulgated thereunder.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ JEFFREY A. KOEPPEL
-----------------------------
Jeffrey A. Koeppel, a Partner
<PAGE> 1
EXHIBIT 10.16
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 24th day of July, 1998, between ICARUS
International, Inc., a Maryland corporation and ICARUS Corporation, a Maryland
Corporation (both companies referred to herein collectively as the
"Corporation") and Peter L. Bower (the "Executive").
WITNESSETH
WHEREAS, the Corporation desires to hire the Executive to act as the
Corporation's Chief Financial Officer; and
WHEREAS, the Corporation (the "Employer") desires to ensure the
Executive's active participation in the business of the Employer; and
WHEREAS, the Executive desires to be employed by the corporation in
such capacity;
WHEREAS, in order to induce the Executive to remain in the employ of the
Employer and in consideration of the Executive's agreement to remain in the
employ of the Employer, the parties desire to specify the terms and conditions
of Executive's employment with the Corporation;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AFFILIATES. "Affiliates" of the Corporation, or a person "affiliated"
with the Corporation, are any persons or entities which, directly or indirectly,
through one or more intermediaries, controls or are controlled by or are under
common control with, the persons or entities specified.
(b) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employer or any subsidiary
thereof during the most recent three taxable years preceding the Date of
Termination (or such shorter period as the Executive was employed), including
Base Salary and bonuses or other compensation under any employee benefit plans
of the Employer.
<PAGE> 2
BOWER EMPLOYMENT AGREEMENT
Page 2
(c) BASE SALARY. "Base Salary" shall have the meaning set forth in Section
3(a) hereof.
(d) CAUSE. Termination of the Executive's employment for "Cause" shall
mean termination because of incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, conduct which causes or could
reasonably be expected to cause competitive harm to the Corporation, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and- desist order or material breach of any provision of this Agreement.
For purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the Executive's
action or omission was in the best interest of the Employer. Cause shall be
determined in good faith by the affirmative vote of a majority of the whole
Board of Directors after the Executive has been provided the opportunity to make
a presentation to the Board which presentation to the Board may be with counsel.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause, Disability or for Retirement,
the date specified in the Notice of Termination, and (ii) if the Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given or as specified in such Notice.
(g) DISABILITY. Termination by the Employer of the Executive's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Executive for disability benefits under the
applicable long-term disability plan maintained by the Employer or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) IRS. "IRS" shall mean the Internal Revenue Service.
(i) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Employer for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, shall be
communicated by a written "Notice of Termination" to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a dated notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated, (iii) specifies a Date of Termination, which shall be not less
than thirty (30) nor more than ninety (90) days after such Notice of Termination
is given, except in the case of the Employer's termination of Executive's
<PAGE> 3
BOWER EMPLOYMENT AGREEMENT
Page 3
employment for Cause for which the Date of Termination may be the date of the
notice; and (iv) is given in the manner specified in Section 13 hereof.
(j) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employer's retirement policies, including early
retirement, generally applicable to the Employer's salaried employees.
(k) SUBSIDIARY. "Subsidiary" shall mean any subsidiary of the Corporation.
2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Executive as Chief Financial Officer,
and Executive hereby accepts said employment and agrees to render such services
to the Employer, on the terms and conditions set forth in this Agreement. Unless
extended as provided in this Section 2, this Agreement shall terminate three (3)
years after the date first above written. Reference herein to the term of this
Agreement shall refer both to the initial term and any successive term as the
context requires.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Employer as is consistent with his title of Chief
Financial Officer and as directed, from time to time, by the Board of Directors
and/or the President and Chief Executive Officer, including but not limited to,
the supervision of the Corporation's financial records, financial reporting,
taxes, audit, planning and forecasting and other duties typically performed by a
chief financial officer for a Company in like circumstances. The Executive shall
devote his full time, attention and energies to the business of the Corporation
and shall not, during the term hereof (as defined in Section 2(a)), be employed
or involved in any other business activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage, except for such other
activities as may be specifically approved by the Board of Directors. This
restriction shall not, however, preclude the Executive from employment in any
capacity with affiliates of the Corporation, nor shall any remuneration from
such affiliates be considered in calculating the Base Salary (as defined in
Section 3(a)) due to Executive hereunder.
3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Executive, the Employer shall
compensate and pay Executive for his services during the term of this Agreement
a base salary of one hundred thirty-eight thousand dollars ($138,000.00) per
year ("Base Salary"), which may be increased from time to time in such amounts
as may be determined by the Board of Directors of the Employer.
<PAGE> 4
BOWER EMPLOYMENT AGREEMENT
Page 4
(b) During the term of the Agreement, and subject to this subparagraph
3(b), the Executive shall be entitled to participate in and receive the benefits
of any pension or other retirement benefit plan, the 401(k) plan, profit
sharing, stock option, employee stock ownership, or other plans, benefits and
privileges given to employees and executives of the Employer, to the extent
commensurate with his then duties and responsibilities, as fixed by the Board of
Directors of the Employer. In addition to his Base Salary, the Executive shall
receive an option to purchase 50,000 shares of the Employer's Common Stock which
shall be granted on the first date on which stock options are granted to other
employees of the Corporation by the Board of Directors, all pursuant to the
terms and conditions of the Corporation's 1998 Stock Option Plan, at an exercise
price equal to the price per share of the Common Stock sold in the Corporation's
initial public offering, or if there is no public offering, at fair market
value, which options shall vest at the rate of 20% per year for five years, the
last to vest on the fifth anniversary of the date of grant. Nothing paid to
Executive under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the Base Salary payable to Executive
pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled to two
(2) weeks (10 working days) during the first five years of employment and,
thereafter, to four (4) weeks (20 working days), paid vacation in each calendar
year to be taken and determined in accordance with the vacation policies and
procedures as established from time to time by the Board of Directors of the
Employer. Executive shall also be entitled to all paid holidays to which
similarly situated executives and key management employees of the Corporation
are entitled. The Executive shall be entitled to paid leave due to physical
illness in each calendar year to be taken and determined in accordance with the
policies and procedures as established from time to time by the Board of
Directors. Executive shall not be entitled to receive any additional
compensation from the Employer for failure to take a vacation, or failure to use
"sick days," nor shall Executive be able to accumulate unused vacation or "sick"
time from one year to the next, except to the extent authorized by the Board of
Directors of the Employer.
4. EXPENSES. The Employer shall reimburse Executive or otherwise provide
for or pay for all reasonable expenses incurred by Executive in furtherance of,
or in connection with the business of the Employer, including, but not by way of
limitation, parking at the main office, traveling expenses, and all reasonable
entertainment expenses (whether incurred while traveling or otherwise), subject
to such reasonable documentation and other limitations as may be established by
the Board of Directors of the Employer. If such expenses are paid in the first
instance by Executive, the Employer shall promptly reimburse the Executive
therefor.
<PAGE> 5
BOWER EMPLOYMENT AGREEMENT
Page 5
5. TERMINATION.
(a) The Employer shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) In the event that Executive's employment is terminated by the Employer
for Cause, Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(c) In the event that (i) Executive's employment is terminated by the
Employer for other than Cause, including termination due to Disability,
Retirement or the Executive's death, or (ii) such employment is terminated by
the Executive due to a material breach of this Agreement by the Employer, which
breach has not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Executive to the Employer, then the
Employer shall pay to the Executive (or to his estate, as the case may be), in a
lump sum or over time, at the option of the Executive (or of his estate, as
applicable), the unpaid Base Salary to be paid hereunder through the end of the
term of employment and the Employer shall maintain and provide for a period
ending at the earlier of (i) the expiration of the remaining term of employment
pursuant hereto prior to the Notice of Termination or (ii) the date of the
Executive's full-time employment by another employer (provided that the
Executive is entitled under the terms of such employment to benefits
substantially similar to those described in this subparagraph), at no cost to
the Executive, the Executive's continued participation in all group insurance,
life insurance, health and accident, disability and other employee benefit
plans, programs and arrangements in which the Executive was entitled to
participate immediately prior to the Date of Termination (other than stock
option and restricted stock plans of the Employer), provided that in the event
that the Executive's participation in any plan, program or arrangement as
provided in this subparagraph is barred or during such period any such plan,
program or arrangement is discontinued or the benefits thereunder are materially
reduced, the Employer shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to receive under
such plans, programs and arrangements immediately prior to the Date of
Termination.
6. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
<PAGE> 6
BOWER EMPLOYMENT AGREEMENT
Page 6
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
7. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employer may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
8. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
(a) The Executive hereby acknowledges and recognizes the highly
competitive nature of the business of the Corporation and accordingly agrees
that, during the term of this Agreement and, in consideration of the receipt of
any payment pursuant to this Agreement, for a period of two years following the
date of termination of the Executive's employment under this Agreement, unless
otherwise agreed to in writing by the Corporation, the Executive shall not,
either directly or indirectly, in any manner or capacity, whether as principal,
agent, partner, officer, director, employee, joint venturer, salesman, or
corporate shareholder or otherwise for the benefit of any Person (as defined
below), (i) render services to, or solicit the rendering of services to, any
Person in competition with the business of the Corporation, which then is, or at
any time during a period of one year prior to the termination of the Executive's
employment under this Agreement (the "Termination Date"), was a Customer (as
defined below) of the Corporation, or (ii) solicit the rendering of services to
any Person of any kind whatsoever which is then or has been at any time during a
period of one year prior to the Termination Date a Customer, employee,
salesperson, agent or representative of the Corporation in any manner which
interferes or might interfere with the relationship of the Corporation with such
Person, or in an effort to obtain such Person as a customer, supplier, employee,
salesperson, agent or representative of any business in competition with the
Corporation, or (iii) for a period of two years following the Termination Date,
hire or participate in the hiring by any Person of an employee of the
Corporation. In order to assure strict compliance with the foregoing, and in
recognition of the compensation to be paid by Employer to Executive on the
termination of this Agreement, Executive grants to Employer the sole and
absolute right to determine whether any employment or services anticipated to be
undertaken by Executive during said period of time as outlined above, is or may
be in violation of the foregoing provisions and Executive agrees to notify
Employer, in writing, fourteen (14) days prior to undertaking any employment or
services within the said time period, regardless of the nature thereof, of the
name and address of any such intended employer, proposed job title, proposed job
description and salary, and the business of the prospective employer. If, within
such fourteen (14) day period, Employer shall object on reasonable grounds to
such anticipated
<PAGE> 7
BOWER EMPLOYMENT AGREEMENT
Page 7
employment in writing to Executive, Executive agrees not to accept the same or
in any manner directly or indirectly render services to any such prospective
employer.
"Person" means any individual, trust, partnership, corporation, limited
liability company, association, or other legal entity.
"Customer" means any Person with which the Corporation or any subsidiary
is currently engaged to provide goods or services, has been engaged to provide
goods or services within twelve (12) months prior to the Termination Date, or
actively marketed, discussed a project with, negotiated with, provided a bid to
or otherwise communicated with in an effort to obtain an engagement to provide
goods or services sold by the Corporation or any subsidiary within twelve (12)
months prior to the Termination Date.
(b) It is expressly understood and agreed that although the Executive and
the Corporation consider the restrictions contained in Section 8(a) of this
Agreement reasonable for the purpose of preserving for the Corporation its good
will and other proprietary rights, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any other restriction
contained in Section 8(a) of this Agreement is an unreasonable or otherwise
unenforceable restriction against the Executive, the provisions of Section 8(a)
of this Agreement shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such other extent as such
court may judicially determine or indicate to be reasonable.
9. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges that
the Corporation's trade secrets, as they may exist from time to time, and
confidential information concerning its products, programs, technical
information, procurement and sales activities and procedures, identity of
customers and potential customers, business plans, promotion and pricing
techniques, and credit and financial data concerning customers are valuable,
special and unique assets of the Corporation. In light of the highly competitive
nature of the industry in which the Corporation's business is conducted, the
Executive agrees that all knowledge and information described in the preceding
sentence not in the public domain and heretofore or in the future obtained by
the Executive shall be considered confidential information. Executive agrees
that he will not disclose any or such secrets, processes or information to any
Person or other entity for any reason or purpose whatsoever, except as necessary
in the performance of his duties as an employee of or consultant to the
Corporation and then only upon a written confidentiality agreement in such form
and content as requested by the Corporation from time to time, nor shall the
Executive make use of any such secrets, processes or information (other than
information in the public domain) for his own purposes or for the benefit of
himself, any Person or other entity (except the Company and its subsidiaries)
under any circumstances. The provisions
<PAGE> 8
BOWER EMPLOYMENT AGREEMENT
Page 8
contained in this Section 9 shall also apply to information obtained by the
Executive with respect to any future subsidiary of the Corporation.
10. BUSINESS INFORMATION. Upon the termination of his employment with the
Corporation, Executive (or, as appropriate, his personal representatives) shall
deliver to the Corporation (without retaining copies of the same), all plans,
source codes, designs, customer lists, correspondence, records, documents,
accounts and papers of any description and any other property of the Corporation
within the possession or under the control of Executive (or, as appropriate, his
personal representatives) and relating to the affairs and business of the
Corporation, whether drafted, created or compiled by Executive or received by
Executive from other individuals or entities (whether employees of or affiliated
with the Corporation).
11. REMEDIES. The Executive acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Section 8, Section 9 or Section 10 of this Agreement would be inadequate and, in
recognition of this fact, in the event of a breach or threatened breach by the
Executive of any of the provisions of Section 8, Section 9 or Section 10 of this
Agreement, it is agreed that, in addition to any remedy at law, the Corporation
shall be entitled to without posting any bond, and the Executive agrees not to
oppose the Corporation's request in the nature of specific performance,
temporary restraining order, temporary or permanent injunction, or any other
equitable relief or remedy which may then be available, provided, however,
nothing herein shall be deemed to relieve the Corporation of its burden to prove
grounds warranting such relief nor preclude the Executive from contesting such
grounds or facts in support thereof. Nothing herein contained shall be construed
as prohibiting the Corporation form pursuing any other remedies available to it
for such breach or threatened breach.
12. ASSIGNABILITY. The Employer may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation or other
entity with or into which the Employer may hereafter merge or consolidate or to
which the Employer may transfer all or substantially all of its assets, if in
any such case said corporation or other entity shall by operation of law or
expressly in writing assume all obligations of the Employer hereunder as fully
as if it had been originally made a party hereto, but may not otherwise assign
this Agreement or its rights and obligations hereunder. The Executive may not
assign or transfer this Agreement or any rights or obligations hereunder.
13. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
<PAGE> 9
BOWER EMPLOYMENT AGREEMENT
Page 9
To the Employer: Board of Directors
ICARUS International, Inc.
600 Jefferson Plaza
Fifth Floor
Rockville, Maryland 20852
Attn: Herbert G. Blecker, Chairman
With copies to: Jeffrey A. Koeppel, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
To the Executive: Peter L. Bower
7009 Beechwood Drive
Chevy Chase, MD 20815
14. AMENDMENT; WAIVER. This Agreement represents the entire
agreement of the parties relating to subject matter hereof. No provisions of
this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by the Executive and
such officer or officers as may be specifically designated by the Board of
Directors of the Employer to sign on its behalf. No waiver by any party hereto
at any time of any breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
15. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Maryland.
16. NATURE OF OBLIGATIONS. The obligations of the Employer hereunder
are unsecured and the Executive represents a general creditor of the Corporation
for compensation which may be due and owing. Nothing contained herein shall
create or require the Employer to create a trust of any kind to fund any
benefits which may be payable hereunder, and to the extent that the Executive
acquires a right to receive benefits from the Employer hereunder, such right
shall be no greater than the right of any unsecured general creditor of the
Employer.
<PAGE> 10
BOWER EMPLOYMENT AGREEMENT
Page 10
17. INTERPRETATION AND HEADINGS. This Agreement shall be interpreted
in order to achieve the purposes for which it was entered into. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
18. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect. With respect to Section 8 of this Agreement, in the event any court of
competent jurisdiction determines that such provisions are unreasonable or
contrary to law with respect to their time or geographic restriction, or both,
the parties hereto authorize such court to substitute restrictions as it deems
appropriate without invalidating such paragraph or this Agreement.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: ICARUS INTERNATIONAL, INC.
By:
- -------------------------- ----------------------------------------
Name: Herbert G. Blecker
Title: President and Chief Executive Officer
ICARUS CORPORATION
By:
----------------------------------------
Name: Herbert G. Blecker
Title: President and Chief Executive Officer
EXECUTIVE
By:/s/ PETER L. BOWER
----------------------------------------
Peter L. Bower
<PAGE> 1
EXHIBIT 10.17
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT ("Agreement"), is entered into and effective as
of the 5th day of August, 1998 by and among Mr. Herbert G. Blecker and Mrs.
Eunice E. Blecker (the "Stockholders") and ICARUS International, Inc.
("Issuer").
RECITALS
WHEREAS, the Stockholders are now, or may become, the legal and beneficial
owners of a certain amount of the Issuer's Stock (as defined herein);
WHEREAS, the Issuer has proposed to offer a maximum of 2,000,000 shares of
its common stock, $.01 par value per share (the "Common Stock") to the public in
an initial public offering (not including the underwriters' over-allotment
option) ("Offering");
WHEREAS, in order to comply with the conditional approval of the Nasdaq
Stock Market, Inc. (the "Nasdaq"), to list the Common Stock on the Nasdaq
National Market System and for other substantial business reasons, the
Stockholders believe it is in their best interests to make provision for future
dispositions of shares of Stock by the Stockholders and certain other matters;
WHEREAS, the Board of Directors of the Issuer (without the participation
of the Stockholders) believes that this Agreement is in the best interests of
the Issuer;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained within this document, the parties agree as follows:
1. DEFINITIONS
a. For the purposes of this Agreement only, the term "Stock" shall mean
all shares of Common Stock of the Issuer, whether held beneficially or of
record, which presently are held or shall come to be held during the Lock-Up
Period (as defined herein), by virtue of the exercise of any options, warrants
or other rights, including a right of conversion, by the Stockholders, including
shares to be purchased in the Offering and any after-acquired shares purchased
in the open market during the Lock-Up Period.
b. For the purpose of this Agreement only, the term "Sell" or "Sale" shall
mean any type of sale, transfer, gift, assignment, pledge, hypothecation, or any
other disposition of the Stock, in any manner, whether or not for consideration,
except a transfer pursuant to a will or the laws of descent and distribution.
2. LOCK-UP
a. Without the prior written consent of the Nasdaq and the Board of
Directors (without the participation of the Stockholders) of the Company in
their sole discretion, the Stockholders hereby covenant and agree not to Sell
any Stock for a period of two (2) years
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<PAGE> 2
following the effective date of the Offering (the "Lock-Up Period").
b. The restriction on the Sale of the Stock shall not apply to any Sale of
Stock in connection with the acquisition of the Issuer's Common Stock by a
person or entity not affiliated with the Stockholders in the context of a
merger, consolidation, share exchange or other extenuating corporate transaction
pursuant to which a "change of control" of the Company would occur, nor to any
Sale of Stock to pay estate taxes nor to any Sale of Stock which may be
permitted by the Board of Directors (without the participation of the
Stockholders) for "hardship" reasons, which reasons may include, but shall not
be limited to, personal support and maintenance of the Stockholder, medical
bills, long-term care or other financial emergencies, provided that any such
Sale shall be made in compliance with applicable law and regulation.
c. Following the Lock-Up Period, the Stockholders shall be free to Sell
all or a portion of the Stock, at any time or from time to time, provided that
any such Sale shall be made in compliance with applicable law and regulation.
3. LEGENDS
a. The Issuer shall cause a notice to be placed on the face of each Stock
certificate covered by the terms of this Agreement, stating that the Sale of the
Stock evidenced by the certificate is restricted in accordance with the
conditions set out on the reverse side of the certificate.
b. During the term of this Agreement, each certificate representing shares
of Stock of the Issuer now or hereafter held by a Stockholder shall bear the
following legend:
"The sale, transfer, gift, assignment, pledge or hypothecation of
the shares of Common Stock evidenced by this certificate are subject
to certain restrictions until August 14, 2000, pursuant to an
agreement between the shareholder and the issuer. The agreement is
on file with the issuer and the stock transfer agent from which a
copy is available upon request without charge. On August 15, 2000,
this restriction shall terminate automatically and without the need
for any action to be taken by either the shareholder or the issuer."
4. FILING
The Stockholders shall cause a manually signed copy of this Agreement to
be filed with the Nasdaq promptly after the execution thereof.
5. MODIFICATION
The terms and conditions stated in this Agreement may be modified only by
a written document signed by all parties and approved by the Nasdaq.
2
<PAGE> 3
6. TERMINATION
This Agreement will terminate automatically and without the need for any
action to be taken by either the Stockholders or the issuer on August 15, 2000.
The Company may instruct its transfer agent to disregard the legend set forth in
Section 3(b) on and after said date.
7. COUNTERPARTS
To facilitate execution, the Agreement may be executed in more than one
counterpart, each of which shall constitute an original and all of which shall
constitute one and the same Agreement.
8. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties with
respect to the subject matter hereof. This Agreement may not be assigned by any
party. This Agreement shall inure to the benefit of and be binding upon the
parties hereto but shall not bind the heirs, executors, personal representatives
or estates of the Stockholders. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Maryland.
[The remainder of this page intentionally left blank; Signatures on following
page]
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<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
ICARUS INTERNATIONAL, INC.
Witness: /s/ By: /s/ JAMES J. BYRNE
--------------------- --------------------------------
James J. Byrne, Director
Member, Compensation Committee
STOCKHOLDERS
Witness: /s/ By: /s/ HERBERT G. BLECKER
--------------------- --------------------------------
Herbert G. Blecker
Stockholder
Witness: /s/ By: /s/ EUNICE E. BLECKER
--------------------- --------------------------------
Eunice E. Blecker
Stockholder
4
<PAGE> 1
EXHIBIT 10.18
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 7th day of August, 1998, between ICARUS
International, Inc., a Maryland corporation and ICARUS Corporation, a Maryland
Corporation (both companies referred to herein collectively as the "Corporation"
or "Employer"), and Lawrence H. Fischer (the "Counsel").
WITNESSETH
WHEREAS, the Counsel is presently the outside general counsel of the
Corporation; and
WHEREAS, the Employer has determined that in consideration of its growth
over the years, it has a need for a full time, in-house general counsel, and in
light of the Counsel's qualifications and experience, and in particular, the
Counsel's experience as counsel to the Corporation, desires to engage the
services of the Counsel as in-house general counsel in the business of the
Employer; and
WHEREAS, in order to induce the Counsel to enter into the employ of the
Employer and in consideration of the Counsel's agreement to remain in the employ
of the Employer pursuant to the terms and conditions hereof, the parties desire
to specify the terms and conditions of Counsel's employment with the Corporation
and to provide certain severance benefits which shall be due the Counsel in the
event that his employment with the Employer is terminated under specified
circumstances;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AFFILIATES. "Affiliates" of the Corporation, or a person "affiliated"
with the Corporation, are any persons or entities which, directly or indirectly,
through one or more intermediaries, controls or are controlled by or are under
common control with, the persons or entities specified.
(b) AVERAGE ANNUAL COMPENSATION. The Counsel's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Counsel by the Employer or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination (or such shorter period as the Counsel was employed), including Base
Salary and bonuses or other compensation under any employee benefit plans of the
Employer.
<PAGE> 2
Fischer Employment Agreement
Page 2
(c) BASE SALARY. "Base Salary" shall have the meaning set forth in Section
3(a) hereof.
(d) CAUSE. Termination of the Counsel's employment for "Cause" shall mean
termination because of willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order or material breach of any provision of
this Agreement. For purposes of this paragraph, no act or failure to act on the
Counsel's part shall be considered "willful" unless done, or omitted to be done,
by the Counsel not in good faith and without reasonable belief that the
Counsel's action or omission was in the best interest of the Employer. Cause
shall be determined in good faith by the affirmative vote of a majority of the
whole Board of Directors (excluding the Counsel) after the Counsel has been
provided the opportunity to make a presentation to the Board which presentation
to the Board may be with counsel.
(e) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under Exchange Act; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than the Counsel or the
Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of twenty
four consecutive months, individuals who, at the beginning of such period
constituted the Board of Directors of the Corporation, cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period.
(f) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Counsel's employment is terminated for Cause, Disability or for Retirement, the
date specified in the Notice of Termination, and (ii) if the Counsel's
employment is terminated for any other reason, the date on which a Notice of
Termination is given or as specified in such Notice.
(h) DISABILITY. Termination by the Employer of the Counsel's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Counsel for disability benefits under the
applicable long-term disability plan maintained by the Employer or any
subsidiary or, if no such plan applies, which would qualify the Counsel for
disability benefits under the Federal Social Security System.
<PAGE> 3
Fischer Employment Agreement
Page 3
(i) GOOD REASON. Termination by the Counsel of the Counsel's employment
for "Good Reason" shall mean termination by the Counsel following a Change in
Control of the Corporation based on:
(i) Without the Counsel's express written consent, the failure
to elect or to re-elect or to appoint or to re-appoint the
Counsel to the position of general counsel of the Employer
or a material adverse change made by the Employer in the
Counsel's functions, duties or responsibilities as general
counsel of the Employer;
(ii) Without the Counsel's express written consent, a material
reduction (i.e., 10% or more) by the Employer in the
Counsel's Base Salary as the same may be increased from time
to time or, except to the extent permitted by Section 3(b)
hereof, a material reduction in the package of fringe
benefits provided to the Counsel, taken as a whole;
(iii) Without the Counsel's express written consent, the Employer
requires the Counsel to work in an office which is more than
30 miles from the location of the Employer's current
principal executive office, or requires extensive travel on
business of the Employer to an extent substantially greater
than required prior to the Change in Control;
(iv) Any purported termination of the Counsel's employment for
Cause, Disability or Retirement which is not effected
pursuant to a Notice of Termination satisfying the
requirements of paragraph (k) below and Section 5 hereof; or
(v) The failure by the Employer to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 13 hereof.
(j) IRS. "IRS" shall mean the Internal Revenue Service.
(k) NOTICE OF TERMINATION. Any purported termination of the Counsel's
employment by the Employer for any reason, including without limitation for
Cause, Disability or Retirement, or by the Counsel for any reason, including
without limitation for Good Reason, shall be communicated by a written "Notice
of Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Counsel's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30)
<PAGE> 4
Fischer Employment Agreement
Page 4
nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Employer's termination of Counsel's employment for Cause for
which the Date of Termination may be the date of the notice; and (iv) is given
in the manner specified in Section 14 hereof.
(l) RETIREMENT. "Retirement" shall mean voluntary termination by the
Counsel in accordance with the Employer's retirement policies, including early
retirement, generally applicable to the Employer's salaried employees.
(m) SUBSIDIARY. "Subsidiary" shall mean any subsidiary of the Corporation.
2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Counsel as general counsel, and
Counsel hereby accepts said employment and agrees to render such
services to the Employer, on the terms and conditions set forth in this
Agreement. Unless extended as provided in this Section 2, this Agreement shall
terminate five (5) years after the date first above written; provided, however,
this Agreement shall be automatically renewed commencing on its third
anniversary date ("Annual Renewal Date") each year for one (1) additional year
so that this Agreement shall thereafter continue in effect for a period ending
three (3) years from each Annual Renewal Date unless either party shall give
written notice of non-renewal, in accordance with Section 14 hereof to the
other party at least thirty (30) days prior to an Annual Renewal Date, in which
event this Agreement shall continue in effect for a term ending on the fifth
consecutive Annual Renewal Date immediately following such notice. Reference
herein to the term of this Agreement shall refer both to the initial term and
any successive term as the context requires.
(b) During the term of this Agreement, the Counsel shall perform such
services for the Employer as is consistent with his title of general counsel and
as directed, from time to time, by the Board of Directors and/or the President
and Chief Executive Officer, including but not limited to, the supervision of
the Corporation's legal affairs. The Counsel shall devote his full time,
attention and energies to the business of the Corporation and shall not, during
the term hereof (as defined in Section 2(a)), be employed or involved in any
other business activity (excluding investment activities), whether or not such
activity is pursued for gain, profit or other pecuniary advantage, except for
(i) volunteer services for or on behalf of such religious, educational,
non-profit and/or other eleemosynary organization as Counsel may wish to serve,
and (ii) such other activities as may be specifically approved by
the Board of Directors (without the Counsel's participation or vote). This
restriction shall not, however, preclude the Counsel from employment in any
capacity with affiliates of the Corporation.
<PAGE> 5
Fischer Employment Agreement
Page 5
(c) Employment of the Counsel shall commence upon effective date of this
Agreement, provided the Counsel shall be afforded ample opportunity to wind down
his private law practice and withdraw from his law firm in an orderly manner,
prior to commencing the performance of services at the offices of Employer; and
further provided that prior to the full time service at the Employer's offices,
legal services performed for the Company by Counsel shall be deemed to continue
to be provided in the capacity of outside general counsel for which the Company
shall be invoiced at the hourly rates presently charged by Counsel's law firm.
3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Counsel, the Employer shall
compensate and pay Counsel for his services during the term of this
Agreement at a minimum base salary of two hundred dollars ($200,000.00) per
year ("Base Salary"), which may be increased from time to time in such amounts
as may be determined by the Board of Directors of the Employer. In addition to
his Base Salary, the Counsel shall receive such cash bonuses to be determined
by the Board of Directors (or the Compensation Committee thereof) and based
upon the Counsel's management of the Corporation's legal affairs. In addition
to any bonus paid or should the Board of Directors not provide any bonus to
Counsel for any year, the Counsel's Base Salary shall automatically be
increased by the amount of the prior year's increase in the "Consumer Price
Index for all Urban Consumers (1982-84=100), Washington, D.C. Area, All Items,"
as published by the United States Department of Labor, Bureau of Labor
Statistics (the "CPI").
(b) During the term of the Agreement, Counsel shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, the 401(k) plan, profit sharing, stock option, employee stock
ownership, or other plans, benefits and privileges given to employees and
executives of the Employer, to the extent commensurate with his then duties and
responsibilities, as fixed by the Board of Directors of the Employer. In
addition to his Base Salary, the Counsel shall receive an option to purchase
25,000 shares of the Employer's common stock, granted on the first date options
are granted to any other employee(s) of the Corporation, pursuant to the
Corporation's 1998 Stock Option Plan, with an exercise price equal to the lesser
of (i) the price per share in the Company's initial public offering of stock, or
(ii) the price per share of contained in options granted any other employee. The
Employer shall not make any changes in such plans, benefits or privileges which
would adversely affect Counsel's rights or benefits thereunder, unless such
change occurs pursuant to a program applicable to all executive officers of the
Employer and does not result in a proportionately greater adverse change in the
rights of or benefits to Counsel as compared with any other executive officer of
the Employer. Nothing paid to Counsel under any plan or arrangement presently in
effect or made available in the future shall be deemed to be in lieu of the Base
Salary payable to Counsel pursuant to Section 3(a) hereof.
<PAGE> 6
Fischer Employment Agreement
Page 6
(c) During the term of this Agreement, Counsel shall be entitled to two
(2) weeks (10 working days) vacation during his first five years of
employment and, thereafter, to four (4) weeks (20 working days) paid vacation
in each calendar year to be taken and determined in accordance with the
vacation policies and procedures as established from time to time by the
Employer. Counsel shall also be entitled to all paid holidays to which
similarly situated key management employees of the Corporation are entitled.
The Counsel shall be entitled to paid leave due to physical illness in each
calendar year to be taken and determined in accordance with the policies and
procedures as established from time to time by the Board of Directors. Counsel
shall not be entitled to receive any additional compensation from the Employer
for failure to take a vacation, or failure to use "sick days," nor shall
Counsel be able to accumulate unused vacation or "sick" time from one year to
the next, except to the extent authorized by the Board of Directors of the
Employer.
(d) During the term of this Agreement, Counsel shall not be required to
work in an office which is more than thirty (30) miles from the Employer's
present headquarters at 600 Jefferson Plaza, Rockville, MD; nor shall Counsel be
required to travel extensively on the business of Employer.
(e) Employer shall obtain and pay for (i) appropriate professional
liability insurance coverage for Counsel, (ii) a professional liability "tail"
policy, to provide coverage of Counsel's prior acts with his prior law firm,
(iii) Counsel's continued Maryland and District of Columbia bar memberships,
federal court bar dues (if any), American, Maryland, District of Columbia and
Montgomery County Bar Association Dues/Fees, Commercial Law League Dues/Fees and
such other memberships as Counsel and Employer agree are relevant to Counsel's
services as general counsel; (iv) such subscriptions appropriate to Counsel's
services as general counsel; and (v) such other fees/cost appropriate to the
practice of law as general counsel and customarily provided for in-house general
counsel.
(f) Counsel shall be provided with legal secretarial and other support as
necessary to the performance of his services.
4. EXPENSES. The Employer shall reimburse Counsel or otherwise provide for
or pay for all reasonable expenses incurred by Counsel in furtherance of, or in
connection with the business of the Employer, including, but not by way of
limitation, traveling expenses, and all reasonable entertainment expenses
(whether incurred at the Counsel's residence, while traveling or otherwise),
subject to such reasonable documentation and other limitations as may be
established by the Board
<PAGE> 7
Fischer Employment Agreement
Page 7
of Directors of the Employer. Employer shall reimburse Counsel for his
expenses incidental to his transition from his prior employment. If such
expenses are paid in the first instance by Counsel, the Employer shall
reimburse the Counsel therefor.
5. TERMINATION.
(a) The Employer shall have the right, at any time upon prior Notice of
Termination, to terminate the Counsel's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and Counsel shall have the right, upon prior Notice of Termination, to terminate
his employment hereunder for any reason.
(b) In the event that (i) Counsel's employment is terminated by the
Employer for Cause or (ii) Counsel terminates his employment hereunder other
than for Good Reason, Counsel shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(c) In the event that (i) Counsel's employment is terminated by the
Employer for other than Cause, including termination due to Disability,
Retirement or the Counsel's death, or (ii) such employment is terminated by the
Counsel due to a material breach of this Agreement by the Employer, which breach
has not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Counsel to the Employer, then the Employer
shall, subject to the provisions of Section 6 hereof, if applicable,
(A) Pay to the Counsel, in a lump sum or in thirty-six (36) equal
monthly installments (at the Counsel's option) beginning with the first business
day of the month following the Date of Termination, a cash severance amount
equal to five (5) times the Counsel's Average Annual Compensation, provided,
however, that after five (5) years of continuous employment, the cash severance
herein specified shall be reduced to an amount equal to three (3) times the
Counsel's Average Annual Compensation, and
(B) Maintain and provide for a period ending at the earlier of (i)
the expiration of the remaining term of employment pursuant hereto prior to the
Notice of Termination or (ii) the date of the Counsel's full-time employment by
another employer (provided that the Counsel is entitled under the terms of such
employment to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Counsel, the Counsel's continued
participation in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and arrangements in which
the Counsel was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock plans of the
Employer), provided that in the event that the Counsel's participation in any
plan, program or arrangement as provided in this subparagraph (B) is barred or
during such period any such plan, program or arrangement is discontinued or the
benefits thereunder are materially reduced, the Employer shall arrange to
provide
<PAGE> 8
Fischer Employment Agreement
Page 8
the Counsel with benefits substantially similar to those which the Counsel was
entitled to receive under such plans, programs and arrangements immediately
prior to the Date of Termination.
(d) In the event that Counsel's employment is terminated by the Counsel
for Good Reason subsequent to a Change in Control, then the Employer shall:
(A) Pay to the Counsel, in a lump sum payable within five business
days following the Date of Termination, a cash severance amount equal to five
(5) times the Counsel's Average Annual Compensation, and
(B) Maintain and provide for a period ending at the earlier of (i)
the expiration of the remaining term of employment pursuant hereof prior to the
Notice of Termination or (ii) the date of the Counsel's full-time employment by
another employer (provided that the Counsel is entitled under the terms of such
employment to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Counsel, the Counsel's continued
participation in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and arrangements in which
the Counsel was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock plans of Employer),
provided that in the event the Counsel's participation in any plan, program or
arrangement is discontinued or the benefit thereunder are materially reduced,
the Employer shall arrange to provide the Counsel with benefits substantially
similar to those which the Counsel was entitled to receive under such plans,
programs and arrangements immediately prior to the Date of Termination.
6. ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
(a) If the Counsel becomes liable, in any taxable year, for the repayment
of an excise tax under Section 4999 of the Code on account of any payments to
the Counsel pursuant to Section 5, and the Employer chooses not to contest the
liability or has exhausted all administrative and judicial appeals contesting
the liability, the Employer shall pay the Counsel (i) an amount equal to the
excise tax for which the Counsel is liable under Section 4999 of the Code, (ii)
the federal, state, and local income taxes, and interest if any, for which the
Counsel is liable on account of the payments pursuant to item (i), and (iii) any
additional excise tax under Section 4999 of the Code and any federal, state and
local income taxes for which the Counsel is liable on account of payments made
pursuant to items (i) and (ii).
(b) This Section 6(b) applies if the amount of payments to the Counsel
under Section 6(a) has not been determined with finality by the exhaustion of
administrative and judicial appeals. In such circumstances, the Employer and the
Counsel shall, as soon as practicable after the event or series of events have
occurred giving rise to the imposition of the excise tax, cooperate in
determining the amount of the Counsel's excise tax liability for purposes of
paying the estimated tax.
<PAGE> 9
Fischer Employment Agreement
Page 9
The Counsel shall thereafter furnish to the Employer or its successors a copy of
each tax return which reflects a liability for an excise tax under Section 4999
of the Code at least thirty (30) days before the date on which such return is
required to be filed with the IRS. The liability reflected on such return shall
be dispositive for the purposes hereof unless, within twenty (20) days after
such notice is given, the Employer furnishes the Counsel with a letter of the
auditors or tax advisor selected by the Employer indicating a different
liability or that the matter is not free from doubt under the applicable laws
and regulations and that the Counsel may, in such auditor's or advisor's
opinion, cogently take a different position, which shall be set forth in the
letter with respect to the payments in question. Such letter shall be addressed
to the Counsel and state that he is entitled to rely thereon. If the Employer
furnishes such a letter to the Counsel, the position reflected in such letter
shall be dispositive for purposes of this Agreement, except as provided in
Section 6(c) below.
(c) Notwithstanding anything in this Agreement to the contrary, if the
Counsel's liability for the excise tax under Section 4999 of the Code for a
taxable year is subsequently determined to be less than the amount paid by the
Employer pursuant to Section 6(a), the Counsel shall repay the Employer at the
time that the amount of such excise tax liability is finally determined, the
portion of such income and excise tax payments attributable to the reduction
(plus interest on the amount of such repayment at the rate provided on Section
1274(b)(2)(B) of the Code) and if the Counsel's liability for the excise tax
under Section 4999 of the Code for a taxable year is subsequently determined to
exceed the amount paid by the Employer pursuant to Section 6(a), the Employer
shall make an additional payment of income and excise taxes in the amount of
such excess, as well as the amount of any penalty and interest assessed with
respect thereto at the time that the amount of such excess and any penalty and
interest is finally determined.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Counsel shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the Counsel
as a result of employment by another employer after the Date of Termination or
otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Counsel upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
8. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Counsel shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Employer may reasonably
determine should be withheld pursuant to any applicable law or regulation.
<PAGE> 10
Fischer Employment Agreement
Page 10
9. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
(a) The Counsel hereby acknowledges and recognizes the highly competitive
nature of the business of the Corporation and accordingly agrees that, during
the term of this Agreement and, in consideration of the receipt of all payment
due pursuant to this Agreement, for a period of two years following the date of
termination of the Counsel's employment under this Agreement, unless otherwise
agreed to in writing by the Corporation, the Counsel shall not, either directly
or indirectly, in any manner or capacity, whether as principal, agent, partner,
officer, director, employee, joint venturer, salesman, or corporate shareholder
or otherwise for the benefit of any Person (as defined below), (i) render
services to, or solicit the rendering of services to, any Person in competition
with the business of the Corporation, which then is, or at any time during a
period of one year prior to the termination of the Counsel's employment under
this Agreement (the "Termination Date"), was a Customer (as defined below) of
the Corporation, or (ii) solicit the rendering of services to any Person of any
kind whatsoever which is then or has been at any time during a period of one
year prior to the Termination Date a Customer, employee, salesperson, agent or
representative of the Corporation in any manner which interferes or might
interfere with the relationship of the Corporation with such Person, or in an
effort to obtain such Person as a customer, supplier, employee, salesperson,
agent or representative of any business in competition with the Corporation, or
(iii) for a period of two years following the Termination Date, hire or
participate in the hiring by any Person of an employee of the Corporation.
Nothing herein shall be deemed to preclude Counsel from returning to the private
practice of law subsequent to any such termination, and in such capacity
rendering legal services to any such Person, subject to paragraph 10 below.
"Person" means any individual, trust, partnership, corporation, limited
liability company, association, or other legal entity.
"Customer" means any Person with which the Corporation or any subsidiary
is currently engaged to provide goods or services, has been engaged to provide
goods or services within twelve (12) months prior to the Termination Date, or
actively marketed, discussed a project with, negotiated with, provided a bid to
or otherwise communicated with in an effort to obtain an engagement to provide
goods or services sold by the Corporation or any subsidiary within twelve (12)
months prior to the Termination Date.
(b) It is expressly understood and agreed that although the Counsel and
the Corporation consider the restrictions contained in Section 9(a) of this
Agreement reasonable for the purpose of preserving for the Corporation its good
will and other proprietary rights, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any other restriction
contained in Section 9(a) of this Agreement is an unreasonable or otherwise
unenforceable restriction against the Counsel, the provisions of Section 9(a) of
this Agreement shall not be rendered void but
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Fischer Employment Agreement
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shall be deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to be
reasonable.
10. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Counsel acknowledges that
the Corporation's trade secrets, as they may exist from time to time, and
confidential information concerning its products, programs, technical
information, procurement and sales activities and procedures, identity of
customers and potential customers, business plans, promotion and pricing
techniques, and credit and financial data concerning customers are valuable,
special and unique assets of the Corporation. In light of the highly competitive
nature of the industry in which the Corporation's business is conducted, the
Counsel agrees that all knowledge and information described in the preceding
sentence not in the public domain and heretofore or in the future obtained by
the Counsel shall be considered confidential information. Counsel agrees that he
will not disclose any or such secrets, processes or information to any Person or
other entity for any reason or purpose whatsoever, except as necessary in the
performance of his duties as an employee of or consultant to the Corporation and
then only upon a written confidentiality agreement in such form and content as
requested by the Corporation from time to time, nor shall the Counsel make use
of any such secrets, processes or information (other than information in the
public domain) for his own purposes or for the benefit of himself, any Person or
other entity (except the Company and its subsidiaries) under any circumstances.
The provisions contained in this Section 10 shall also apply to information
obtained by the Counsel with respect to any future subsidiary of the
Corporation.
11. BUSINESS INFORMATION. Upon the termination of his employment with the
Corporation, Counsel (or, as appropriate, his personal representatives) shall
deliver to the Corporation (without retaining copies of the same), all plans,
source codes, designs, customer lists, correspondence, records, documents,
accounts and papers of any description and any other property of the Corporation
within the possession or under the control of Counsel (or, as appropriate, his
personal representatives) and relating to the affairs and business of the
Corporation, whether drafted, created or compiled by Counsel or received by
Counsel from other individuals or entities (whether employees of or affiliated
with the Corporation). The foregoing shall not apply to legal forms regardless
of how and when created by Counsel, subject to paragraph 10 above.
12. REMEDIES. The Counsel acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Section 9, Section 10 or Section 11 of this Agreement would be inadequate and,
in recognition of this fact, in the event of a breach or threatened breach by
the Counsel of any of the provisions of Section 9, Section 10 or Section 11 of
this Agreement, it is agreed that, in addition to any remedy at law, the
Corporation shall be entitled to without posting any bond, and the Counsel
agrees not to oppose the Corporation's request in the nature of specific
performance, temporary restraining order, temporary or permanent injunction, or
any other equitable relief or remedy which may then be available, provided,
however, nothing herein shall be deemed to relieve the Corporation of its burden
to prove grounds warranting such relief nor
<PAGE> 12
Fischer Employment Agreement
Page 12
preclude the Counsel from contesting such grounds or facts in support thereof.
Nothing herein contained shall be construed as prohibiting the Corporation form
pursuing any other remedies available to it for such breach or threatened
breach.
13. ASSIGNABILITY. The Employer shall assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation or other
entity with or into which the Employer may hereafter merge or consolidate or to
which the Employer may transfer all or substantially all of its assets, if in
any such case said corporation or other entity shall by operation of law or
expressly in writing assume all obligations of the Employer hereunder as fully
as if it had been originally made a party hereto, but may not otherwise assign
this Agreement or its rights and obligations hereunder. The Counsel may not
assign or transfer this Agreement or any rights or obligations hereunder.
14. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employer: Board of Directors
ICARUS International, Inc.
One Central Plaza
600 Jefferson Plaza
Rockville, Maryland 20852
Attn: Herbert G. Blecker, Chairman
With copies to: Jeffrey A. Koeppel, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
To the Counsel: Lawrence H. Fischer
13705 Goosefoot Terrace
Rockville, MD 20850
15. AMENDMENT; WAIVER. This Agreement represents the entire agreement of
the parties relating to subject matter hereof. No provisions of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Counsel and such officer or
officers as may be specifically designated by the Board of Directors of the
Employer to sign on its behalf. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be
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Fischer Employment Agreement
Page 13
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Maryland.
17. NATURE OF OBLIGATIONS. The obligations of the Employer hereunder are
unsecured and the Counsel represents a general creditor of the Corporation for
compensation which may be due and owing. Nothing contained herein shall create
or require the Employer to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Counsel acquires a right to
receive benefits from the Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employer.
18. INTERPRETATION AND HEADINGS. This Agreement shall be interpreted in
order to achieve the purposes for which it was entered into. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
19. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. With
respect to Section 9 of this Agreement, in the event any court of competent
jurisdiction determines that such provisions are unreasonable or contrary to law
with respect to their time or geographic restriction, or both, the parties
hereto authorize such court to substitute restrictions as it deems appropriate
without invalidating such paragraph or this Agreement.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: ICARUS INTERNATIONAL, INC.
- -------------------------- By:
----------------------------------
Name: Herbert G. Blecker
Title: President and Chief Executive Officer
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Fischer Employment Agreement
Page 14
ICARUS CORPORATION
By:
----------------------------------
Name: Herbert G. Blecker
Title: President and Chief Executive Officer
COUNSEL
By:
----------------------------------
Lawrence H. Fischer
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated June 26, 1998, accompanying the consolidated
financial statements of ICARUS International, Inc., contained in the
Registration Statement and Prospectus. We consent to the use of the
aforementioned reports in the Registration Statement and Prospectus, and to the
use of our name as it appears under the captions "Selected Consolidated
Financial Data" and "Experts."
/s/ GRANT THORNTON LLP
Vienna, Virginia
August 7, 1998
