EX-10.7



 





EXHIBIT
10.7



AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of April 1, 2006
(the “Effective Date”), by and between IPC Information Systems, LLC, a Delaware limited liability
company (the “Employer”), and Timothy Whelan (the “Employee”).



     WHEREAS, the Employer and the Employee have previously entered into an Employment Agreement,
dated as of July 15, 2004 (the “Original Agreement”), pursuant to which the Employer and the
Employee agreed that the Employee would serve as the Employer’s Chief Financial Officer;



     WHEREAS, the Employer and the Employee now desire to amend and restate the Original Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:



     1. Employment Term. Subject to the terms and conditions of this Agreement,
the Employer hereby agrees to employ the Employee hereunder, and the Employee
hereby agrees to be employed by the Employer hereunder, for the period commencing on
the Effective Date and ending on the second anniversary of the Effective Date, unless
terminated sooner as hereinafter provided (such period, the “Employment Term”).



     2. Duties.



          (a) During the Employment Term, the Employee shall serve as the
Executive Vice President and Chief Financial Officer of the Employer, and in such
capacity shall use his best energies and abilities in the performance of such duties,
services and responsibilities customarily associated with such position as determined
from time to time by the Chief Executive Officer of the Employer (the “CEO”) or the
Board of Directors of the Employer (the “Board”) and such other duties as reasonably
requested by the CEO or Board. In performing such duties, services and responsibilities,
the Employee will report directly to the CEO.




          (b) During the Employment Term, the Employee shall devote his full
business time, attention and best efforts to the performance of his duties hereunder and
shall not, without the consent of the CEO and the Board provide services as an employee,
director or consultant or other independent contractor to or in respect of any business or
entity other than the Employer.




     3. Compensation. In full consideration of the performance by the Employee of
the Employee’s obligations during the Employment Term (including any service as a
member of the Board and in any position with any affiliate of the Employer or otherwise
on behalf of the Employer), the Employee shall be compensated as follows:



 









 





          (a) Base Salary. During the Employment Term, the Employee shall
receive a base salary (the “Base Salary”) at an annual rate of $260,000, payable in
accordance with the normal payroll practices of the Employer in effect from time to time.
During the Employment Term, the Base Salary shall be subject to annual increase (but
not decrease) as determined in the sole discretion of the Board.




          (b) Annual Target Bonus. For each fiscal year of the Employer in effect
during the Employment Term, the Employee shall be eligible to receive a cash bonus of
up to 60% of his Base Salary (the “Target Bonus”) upon the attainment of performance
goals set in advance by the CEO and the Board. All such bonuses shall be paid after the
completion of the Employer’s financial statements for the applicable fiscal year as and
when bonuses are paid to members of senior management generally.




          (c) The Employee shall be solely responsible for federal, state and local
taxes imposed on the Employee by reason of any compensation and benefits provided
under this Agreement, and all such compensation and benefits shall be subject to all
applicable withholding taxes.




     4. Benefits. During the Employment Term, the Employee shall be entitled to
participate in the employee benefit plans, policies, programs and arrangements, as may be
amended from time to time, that are provided generally to senior executives of the
Employer to the extent the Employee meets the eligibility requirements for any such plan,
policy, program or arrangement.



     5. Vacations. During the Employment Term, the Employee shall be entitled to
four weeks of paid vacation per each full calendar year. Such vacation time shall be
provided in accordance with the Employer’s policies with respect to carry-over of
vacation days.



     6. Termination
of the Employment Term. The Employment Term shall terminate upon the earliest of:



          (a) The second anniversary of the Effective Date;




          (b) The death of the Employee;




          (c) The Disability of the Employee; and




          (d) The
termination of the Employee’s employment by the Employer for Cause or without Cause.




     For purposes of this Agreement, the terms “Cause” and “Disability” are each as defined in the
IPC Acquisition Corp. Amended and Restated 2002 Stock Option Plan.



     7. Termination Payments.



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          (a) Subject only to Section 7(b), upon termination of the Employee’s
employment during the Employment Term, the sole obligation of the Employer to make
any cash payment to the Employee shall be to pay the Employee (i) any portion of the
Base Salary and bonus which has been earned but unpaid as of the date of the Employee’s
termination of employment with the Employer (the “Termination Date”) and (ii)
reimbursement of reasonable and necessary business expenses incurred by the Employee
in connection with the Employee’s employment on behalf of the Employer on or prior to
the Termination Date but not previously paid to the Employee (collectively, the
“Accrued Compensation”).




          (b) If the employment of the Employee is terminated during the
Employment Term by the Employer pursuant to Section 6(d) other than for Cause, the
sole obligation of the Employer to make any cash payment to the Employee other than
the payment of the Accrued Compensation shall be to pay the Employee an amount of
severance pay equal to the sum of 100% of the Base Salary and 100% of the Target
Bonus, each as in effect as of the Termination Date. Such severance pay shall be paid in
twelve substantially equal monthly installments commencing within 30 days of the
Termination Date; provided, however, that in the event the Employee breaches any of the
covenants set forth in Section 8 hereof following the Termination Date, all severance
payments shall cease and the Employer shall have no further obligations under this
Section 7(b). The Company will also, for the period during which it is making such
severance payments to the Employee, provide the Employee and his dependents, at the
Company’s cost, continued group medical insurance coverage, so long as such
continuation is available pursuant to a valid election for continuation of coverage. The
obligation of the Employer to pay the severance pay pursuant to this Section 7(b) shall be
conditioned on the Employee’s execution of a general release in form satisfactory to the
Employer.




          (c) Notwithstanding any other provisions of this Agreement, if Section
409A of the Internal Revenue Code of 1986, as amended, would cause the imposition of
an excise tax on the severance payments as provided in this Section 7, then payment of
the severance payments will commence upon the earliest date that complies with Section
409A without the imposition of the excise tax, and the first installment will include all
portions of the severance payment that would have been paid but for the application of
Section 409A to the severance payments.




     8. Employee Covenants.



          (a) Unauthorized Disclosure. The Employee agrees and understands that in the
Employee’s position with the Employer, the Employee has been and will be exposed to and has and
will receive information relating to the confidential affairs of the Employer and its affiliates,
including, without limitation, technical information, intellectual property, business and marketing
plans, strategies, customer information,




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software, other information concerning the products, promotions, development, financing, expansion
plans, business policies and practices of the Employer and its affiliates and other forms of
information considered by the Employer and its affiliates to be confidential and in the nature of
trade secrets (including, without limitation, ideas, research and development, know-how, formulas,
technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals) (collectively, the “Confidential
Information”). The Employee agrees that at all times during the Employee’s employment with the
Employer and thereafter, the Employee shall not disclose such Confidential Information, either
directly or indirectly, to any third person or entity without the prior written consent of the
Employer. This confidentiality covenant has no temporal, geographical or territorial restriction.
Upon termination of the Employee’s employment with the Employer, the Employee shall promptly supply
to the Employer all property, keys, notes, memoranda, writings, lists, files, reports, customer
lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any
other tangible product or document which has been produced by, received by or otherwise submitted
to the Employee during or prior to the Employee’s employment with the Employer, and any copies
thereof in his (or capable of being reduced to his) possession.




          (b) Non-competition. By and in consideration of the Employer’s entering into this
Agreement and the payments to be made and benefits to be provided by the Employer hereunder, and
further in consideration of the Employee’s exposure to the proprietary information of the Employer
and its affiliates, the Employee agrees that the Employee shall not, during the Employee’s
employment with the Employer and thereafter during the one-year period following the Termination
Date (the “Non-competition Term”), directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management, operation or control of, or
be connected in any manner with, including, without limitation, holding any position as a
shareholder, director, officer, consultant, independent contractor, employee, partner, or investor
in, any Restricted Enterprise; provided, that in no event shall ownership of 1% or less of the
outstanding equity securities of any issuer whose securities are registered under the Securities
Exchange Act of 1934, as amended, standing alone, be prohibited by this Section 8(b). For purposes
of this paragraph, “Restricted Enterprise” shall mean any person, corporation, partnership
or other entity that is engaged, directly or indirectly, in (a) the design, sale, manufacture,
installation, servicing, consultation and other professional services and applications of Turret
Systems (as defined below); (b) the design, sale, provisioning, installation or servicing of
telecommunications services for trading floors; (c) managed services in connection with trading
organizations as provided by the Employer during the Employee’s employment with the Employer, or
(d) the design, sale, manufacture, installation, servicing, consultation and other professional
services and applications of radio consoles and computer-aided dispatch software for use in Command
& Control communications, in each case in the United States or in any other geographic location
where the Employer or any of its affiliates do business. For purposes




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of this paragraph, the term “Turret Systems” shall mean telecommunications equipment and
software to enable communications (including voice, video and data) primarily among traders,
counterparties and associated support personnel, but also among personnel involved in Command &
Control communications. For purposes of this paragraph, the term “Command & Control” shall
include communications in the following four segments: (i) public safety, (ii) federal, state and
local government, (iii) power, energy and utilities and (iv) transportation. During the one-year
period following the Termination Date, upon request of the Employer, the Employee shall notify the
Employer of the Employee’s then current employment status.




          (c) Non-solicitation. During the Non-competition Term, the Employee
shall not (1) contact, induce or solicit (or assist any person to contact, induce or solicit)
any person which has a business relationship with the Employer or of any of its affiliates
to terminate, curtail or otherwise limit such business relationship, or (2) contact, induce
or solicit (or assist any person to contact, induce or solicit) for employment any person
who is, or within six months prior to the date of such action was, an employee of the
Employer or any of its affiliates. Notwithstanding the foregoing, the non-solicitation
provisions herein shall not apply to any person who served as the Employee’s
secretary/administrative assistant, during the Employee’s employment with the Company.




          (d) Remedies. The Employee agrees that any breach of the terms of this
Section 8 would result in irreparable injury and damage to the Employer for which the
Employer would have no adequate remedy at law; the Employee therefore also agrees
that in the event of said breach or any threat of breach, the Employer shall be entitled to
an immediate injunction and restraining order to prevent such breach and/or threatened
breach and/or continued breach by the Employee and/or any and all persons and/or
entities acting for and/or with the Employee, without having to prove damages, in
addition to any other remedies to which the Employer may be entitled at law or in equity.
The terms of this paragraph shall not prevent the Employer from pursuing any other
available remedies for any breach or threatened breach hereof, including, without
limitation, the recovery of damages from the Employee. The Employee and the Employer
further agree that the provisions of the covenants contained in this Section 8 are
reasonable and necessary to protect the businesses of the Employer and its affiliates
because of the Employee’s access to Confidential Information and his material
participation in the operation of such businesses. Should a court or arbitrator determine,
however, that any provision of the covenants contained in this Section 8 is not reasonable
or valid, either in period of time, geographical area, or otherwise, the parties hereto agree
that such provision should be interpreted and enforced to the maximum extent which
such court or arbitrator deems reasonable or valid.




     The existence of any claim or cause of action by the Employee against the Employer or
any of its affiliates, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Employer of the covenants



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contained in this Section 8.




     9. Proprietary Rights. The Employee shall disclose promptly to the Employer
any and all inventions, discoveries, improvements and patentable or copyrightable works
initiated, conceived or made by him, either alone or in conjunction with others, during the
Employee’s employment with the Employer and related to the business or activities of the
Employer and its affiliates, and he assigns all of his interest therein to the Employer or its
nominee. Whenever requested to do so by the Employer, the Employee shall execute any
and all applications, assignments or other instruments which the Employer shall deem
necessary to apply for and obtain trademarks, patents or copyrights of the United States
or any foreign country or otherwise protect the interests of the Employer and its affiliates
therein. These obligations shall continue beyond the end of the Employee’s employment
with the Employer with respect to inventions, discoveries, improvements or
copyrightable works initiated, conceived or made by the Employee while employed by
the Employer and shall be binding upon the Employee’s employers, assigns, executors,
administrators and other legal representatives.



     10. Employee Representations. The Employee represents and warrants that (i)
he is not subject to any contract, arrangement, policy or understanding, or to any statute,
governmental rule or regulation, that in any way limits his ability to enter into and fully
perform his obligations under this Agreement and (ii) he is not otherwise unable to enter
into and fully perform his obligations under this Agreement.



     11. Indemnification. During the Employee’s employment and thereafter, the
Employer agrees to indemnify, including, without limitation, advancement of all costs
and fees, the Employee from and against any liability and expenses arising by reason of
the Employee’s acting as an officer or director of the Employer or any of its subsidiaries,
in accordance with and to the fullest extent permitted by law. During the Employment
Term, the Employer shall maintain commercially reasonable Directors and Officers
liability insurance, under which the Employee will be a covered person. Such liability
insurance shall have such terms and policy limits of coverage as are determined
appropriate by the Board.



     12. Non-Waiver of Rights; Disputes.



          (a) The failure to enforce at any time the provisions of this Agreement
or to require at any time performance by any other party of any of the provisions hereof
shall in no way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement or any part hereof, or the right of any party to enforce each and
every provision in accordance with its terms




          (b) No dispute relating to or arising under this Agreement shall be
subject to mediation or arbitration, and, if such dispute is subject to a trial, such trial
shall be a jury trial.




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     13. Notices. Every notice relating to this Agreement shall be in writing and
shall be given by personal delivery or by registered or certified mail, postage prepaid,
return receipt requested.



     14. Binding Effect/Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors, personal
representatives, estates, successors (including, without limitation, by way of merger) and
assigns. Notwithstanding the provisions of the immediately preceding sentence, the
Employee shall not assign all or any portion of this Agreement without the prior written
consent of the Employer.



     15. Entire Agreement; Modification. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior agreements, negotiations and/or representations, written
or oral, between the parties to the extent they relate in any way to the employment,
termination of employment, compensation and employee benefits of the Employee, other
than the Non-Qualified Stock Option Agreements entered into between the Employee and
IPC Acquisition Corp., dated as of April 2, 2002, April 25, 2003, July 9, 2003, October
20, 2003, and October 18, 2005, respectively and the Key Employee Stock Purchase
Agreement between the Employee and IPC Acquisition Corp., dated as of July 29, 2002
and related Secured Promissory Note and Security Agreement. This Agreement may not
be amended, nor may any provision hereof be modified or waived, except by an
instrument in writing duly signed by the parties.



     16. Severability. If any provision of this Agreement, or any application thereof
to any circumstances, is invalid, in whole or in part, such provision or application shall to
that extent be severable and shall not affect other provisions or applications of this
Agreement.



     17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the principles of
conflict of laws.



     18. Headings. The headings contained herein are solely for the purposes of
reference, are not part of this Agreement and shall not in any way affect the meaning or
interpretation of this Agreement.



     19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.



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     IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed by authority of the
Board, and the Employee has hereunto set his hand, effective as of the Effective Date.



	 	 	 	 	 
	IPC Information Systems, LLC.	 	 
	 
	 	 	 	 
	By:
	 	 /s/ John McSherry 
	 	 
	 
	 	 	 	 
	Name:

	 	John McSherry
 

	 	 
	Its:

	 	Secretary
 

	 	 
	 

	 	/s/ Timothy Whelan
 

	 	 
	 	 	 
	Timothy Whelan	 	 







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