Exhibit 10.12




	




EXHIBIT 10.12 




EMPLOYMENT
AGREEMENT 



     This
Employment Agreement (this “Agreement”) is entered into as of and
effective on the 1st day of November, 2001 (the “Effective Date”) by
and between DAVID P. TUSA (“Employee”) and NEW CENTURY EQUITY HOLDINGS
CORP., a Delaware corporation (the “Company”).  




WITNESSETH:  



     WHEREAS,
the Company and Employee desire to enter into an agreement to establish the terms of
Employee’s employment with the Company and to set forth each party’s duties and
obligations to the other;  



     NOW,
THEREFORE, in consideration of the foregoing promises, the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, this Agreement is entered into to read as follows:  




ARTICLE I  




DUTIES  



     1.1
Duties. During the term of this Agreement, the Company agrees to employ Employee as
Executive Vice President and Chief Financial Officer of the Company, and Employee agrees
to serve the Company in such capacities or in such other capacities (subject to
Employee’s termination rights under Section 4.2) as the Board of Directors of and Company
may direct, all upon the terms and subject to the conditions set forth in this Agreement.    



     1.2
Extent of Duties. Employee shall devote all of his business time, energy and skill to the
affairs of the Company as the Company, acting through its Board of Directors, shall
reasonably deem necessary to discharge Employee’s duties in such capacities. Employee may
participate in social, civic, charitable, religious, business, education or professional
associations, so long as such participation would not materially detract from Employee’s
ability to perform his duties under this Agreement. Employee shall not engage in any
other business activity during the term of this Agreement without the prior written
consent of the Company, other than the passive management of employee’s personal
investments or activities which would not materially detract from Employee’s ability to
perform his duties under this Agreement.    




ARTICLE II 




TERM OF
EMPLOYMENT 



     2.1 General
Term of Employment. The term of this Agreement shall commence on the Effective Date
and continue for a period of eighteen (18) months. The term of this Agreement shall be
automatically extended at the conclusion of each eighteen (18) month period after the
Effective Date for an additional eighteen (18) month term unless, at least thirty (30)
days prior to the end of the then effective term, the Company shall give Employee written
notice of its election to terminate this Agreement as of the end of each effective term.
This Agreement is also subject to earlier termination as hereinafter provided. In the
event the Agreement is terminated, the Employee is entitled to payment under the
applicable provisions of Article IV.   

















	





ARTICLE III
COMPENSATION 



     3.1
Annual Base Compensation.  As compensation for services rendered under
this Agreement, Employee shall be entitled to receive from Company an annual
base salary of $192,500 (before standard deductions) during the term of this
Agreement. Employee’s base salary, shall be subject to review and
adjustment by the Compensation Committee of the Company (the “Compensation
Committee”) on an annual basis, provided that any such adjustment shall not
result in a reduction in Employee’s annual base salary below $192,500
without Employee’s consent. Employee’s annual base salary shall be
payable at regular intervals in accordance with the prevailing practice and
policy of the Company.  



     3.2
Incentive Bonus.  As additional compensation for services rendered under
this Agreement, the Compensation Committee may, in its sole discretion and
without any obligation to do so, declare that Employee shall be entitled to an
annual incentive bonus (whether payable in cash, stock, stock rights or other
property) as the Compensation Committee shall determine. If any such bonus is
declared, the bonus shall be payable in accordance with the terms prescribed by
the Compensation Committee.  



     3.3 Other
Benefits. Employee shall, in addition to the compensation provided for in Sections 3.1
and 3.2 above, be entitled to all benefits available to Company executives, including the
following:  










	 	     (a)
Automobile Allowance. An automobile to be chosen by the Employee, replaceable every
two years and complete payment of all lease, operating, insurance and maintenance
expenses attendant thereto. Upon termination of the Company’s obligation to provide
this benefit, Employee shall have an option, exercisable within 90 days of such
termination, to purchase such automobile at its net book value as shown upon the Company’s
records (or the leasing company records) as of the date of termination. 






	 	     (b)
Country Club Membership. Payment in full of membership fees and dues to a country
club of the Employee’s choice in the area of his employment together with payment or
reimbursement of all charges incurred at such club relating to entertainment of business
guests. Upon termination of this Agreement under Section 4.1, 4.2 or 4.6 hereof, such
country club membership shall be transferred to Employee without further consideration. 






	 	     (c)
Health Club Membership. Payment in full of membership fees and dues in a lunch or
health club of the Employee’s choice, in the area of his employment together with
payment or reimbursement of all charges incurred at such club relating to entertainment
of business guests. 











	












	 	     (d)
Medical, Health and Disability Benefits. Employee shall be entitled to receive all
of the medical, health and disability benefits that may, from time to time, be provided
by the Company to its executive officers. 






	 	     (e)
Other Benefits. Employee shall, also be entitled to receive any other benefits
provided by the Company to all employees of the Company as a group, or all executive
officers of the Company as a group, including any profit sharing, 401(k), deferred
compensation or retirement benefits. 






	 	     (f)
Vacation Pay. Employee shall be entitled to an annual vacation as determined in
accordance with the prevailing practice and policy of the Company. 






	 	     (g)
Holidays. Employee shall be entitled to holidays in accordance with the prevailing
practice and policy of the Company. 






	 	     (h)
Reimbursement of Expenses. The Company shall reimburse Employee for all expenses
reasonably incurred by Employee on behalf of the Company in accordance with the
prevailing practice and policy of the Company, including those necessary to maintain his
professional licenses. 






	 	     (i)
Taxes Payable on Benefits. Not later than 45 days after the conclusion of each
calendar year during which any term of this Agreement shall be effective, Company shall
pay to Employee an amount of money equal to the federal, state and local taxes payable by
Employee on account of the treatment of any benefits hereunder (including this
subparagraph (i)) as Employee’s imputed or “gross income” (as defined by
the Internal Revenue Code, as amended) during such calendar year. 






	



ARTICLE IV
TERMINATION 



     4.1
Termination by the Company Without Cause. Subject to the provisions of
this Section 4.1, this Agreement may be terminated by the Company without cause
upon thirty (30) days’ prior written notice thereof given to Employee. In
the event of termination pursuant to this Section 4.1, after the dates
designated hereinafter, the Company shall pay Employee, within fifteen (15) days
of the effective date of such termination, a lump-sum payment equal to (without
discounting to present value) (a) an amount equal to all compensation and
benefits payable for a period of eighteen (18) months under Article III hereof
if such termination occurs between November 1, 2001 and August 1, 2004, or (b)
an amount equal to all compensation and benefits payable for a period of
twenty-four (24) months under Article III hereof if such termination occurs
after August 1, 2004. Payment of such sum by the Company shall constitute
Employee’s full severance pay, and the Company shall have no further
obligation to Employee arising out of such termination.  



     4.2
Voluntary Termination by Employee for Good Reason. Employee may at any
time voluntarily terminate his employment for “good reason” (as
defined below). In the event of such voluntary termination for “good
reason”, after the dates designated hereinafter, the Company shall pay
Employee, within fifteen (15) days of the effective date of such termination, a
lump-sum payment equal to (without discounting to present value) (a) an amount
equal to all compensation and benefits payable for a period of eighteen (18)
months under Article III hereof if such termination occurs between November 1,
2001 and August 1, 2004, or (b) an amount equal to all compensation and benefits
payable for a period of twenty-four (24) months under Article III hereof if such
termination occurs after August 1, 2004. Payment of such sum by the Company
shall constitute Employee’s full severance pay, and the Company shall have
no further obligation to Employee arising out of such termination.  












	




     For
purposes of this Agreement, “good reason” shall mean the occurrence of any of the
following events:  










	 	     (a)
Removal from the offices Employee holds on the date of this Agreement or a material
reduction in Employee’s authority or responsibility, including, without limitation,
involuntary removal from the Board of Directors, but not including termination of
Employee for “cause,” as defined below; 






	 	     (b)
A reduction in the Employee’s then effective base salary under Section 3.1; or 






	 	     (c)
A requirement that Employee relocate more than, thirty-five (35) miles from the Company’s
current corporate headquarters; or 






	 	     (d)
The Company otherwise commits a material breach of this Agreement. 






	


     4.3
Termination by the Company for Cause. The Company may terminate this
Agreement at any time if such termination is for cause, (as defined below), by
delivering to Employee written notice describing the cause of termination thirty
(30) days before the effective date of such termination and by granting Employee
at least thirty (30) days to cure the cause. In the event the employment of
Employee is terminated for “cause,” Employee shall be entitled only to
the base salary earned pro rata to the date of such termination with no
entitlement to any base salary continuation payments or benefits continuation
(except as specifically provided by the terms of an employee benefit plan of the
Company). Except as otherwise provided in this Agreement, the determination of
whether Employee shall be terminated for cause, shall be made by the Board of
Directors of the Company, in the reasonable exercise of its business judgment,
and shall be limited to the occurrence of the following events:  










	 	     (a)
Conviction of or a plea of nolo contendere to the charge of a felony (which, through
lapse of time or otherwise, is not subject to appeal); 






	 	     (b)
Willful refusal without proper legal cause to perform, or negligence in performing,
Employee’s duties and responsibilities; 






	 	     (c)
Material breach of fiduciary duty to the Company through the misappropriation of Company
funds or property; or 










	












	 	     (d)
The unauthorized absence of Employee from work (other than for sick leave or disability)
for a period of thirty (30) working days or more during any period of forty-five (45)
working days during the term of this Agreement. 






	


     4.4
Termination Upon Death or Permanent Disability. In the event that
Employee dies, this Agreement shall terminate upon Employee’s death.
Likewise, if Employee becomes unable to perform the essential functions of the
position, with or without reasonable accommodation, on account of illness,
disability or other reason whatsoever for a period of more than six (6)
consecutive or nonconsecutive months in any twelve (12)-month period, this
Agreement shall terminate effective upon such incapacity, and Employee (or his
legal representatives) shall be entitled only to the base salary earned pro rata
to the date of such termination with no entitlement to any base salary
continuation payments or benefits continuation (except as specifically provided
by the terms of an employee benefit plan of the Company).  



     4.5
Voluntary Termination by Employee. Employee may terminate this Agreement
at any time upon delivering thirty (30) days’ written notice of resignation
to the Company. In the event of such voluntary termination other than for
“good reason” (as defined above), Employee shall be entitled to his
base salary earned pro rata to the date of his resignation, but no base
salary continuation payments or benefits continuation (except as specifically
provided by the terms of an employee benefit plan of the Company). On or after
the date the Company receives notice of Employee’s resignation, the Company
may, at its option, pay Employee his base salary through the effective date of
his resignation and terminate his employment immediately.  


     4.6
Termination following Change of Control.   










	 	     (a)
Notwithstanding anything to the contrary contained herein, should Employee at any time
within 24 months of the occurrence of a “change of control” (as defined below),
cease to be an employee of the Company (or its successor), by reason of (i) termination
by the Company (or its successor) other than for “cause”, (following a change
of control, “cause” shall be limited to the conviction of or a plea of nolo
contendere to the charge of a felony which, through lapse of time or otherwise, is not
subject to appeal, or a material breach of fiduciary duty to the Company through the
misappropriation of Company funds or property) or (ii) voluntary termination by Employee
for “good reason upon change of control” (as defined below), then in any such
event, (1) the Company shall pay Employee, within 30 days of the severance of employment
described in this Section 4.6, an amount equal to all compensation and benefits payable
under Article III hereof for a period of twenty-four (24) months, to the extent
continuation of such compensation and benefits is not prohibited by applicable state
and/or federal law, and (2) immediately prior to the effective date of such termination,
all outstanding stock options held by Employee, not already vested and exercisable, shall
become fully vested and exercisable by Employee for the remainder of the exercise period
established under the option agreement or two (2) years following the date of
termination, whichever occurs later. 






	 	     (b)
As used in this Section, voluntary termination by Employee for “good reason upon
change of control” shall mean (i) removal of Employee from the offices and
responsibilities Employee holds on the date of this Agreement, (ii) a material reduction
in Employee’s authority or responsibility, including, without limitation,
involuntary removal from the Board of Directors, including the Board of Directors of an
investee, subsidiary or affiliate of the Company, (iii) relocation of the Employee’s
office location from Bexar County, Texas, (iv) a reduction in Employee’s then
effective base salary under Section 3.1 or (v) the Company otherwise commits a breach of
this Agreement. 












	












	 	     (c)
As used in this Agreement, a “change of 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”), is or
becomes a “beneficial owner” (as defined in Rule l3d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing more than 30% of the
combined voting power of the Company’s then outstanding securities, or (ii) at any
time during the 24-month period after a tender offer, merger, consolidation, sale of
assets or contested election, or any combination of such transactions, at least a
majority of the Company’s Board of Directors shall cease to consist of “continuing
directors” (meaning directors of the Company who either were directors prior to such
transaction or who subsequently became directors and whose election, or nomination for
election by the Company’s stockholders, was approved by a vote of at least two
thirds of the directors then still in office who were directors prior to such
transaction), or (iii) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation that
would result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 60% of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement of sale or
disposition by the Company of all or substantially all of the Company’s assets. 






	


     4.7
Exclusivity of Termination Provisions. The termination provisions
of this Agreement regarding the parties’ respective obligations in the
event Employee’s employment is terminated are intended to be exclusive and
in lieu of any other rights or remedies to which Employee or the Company may
otherwise be entitled at law, in equity or otherwise. It is also agreed that,
although the personnel policies and fringe benefit programs of the Company may
be unilaterally modified from time to time, the termination provisions of this
Agreement are not subject to modification, whether orally, impliedly or in
writing, unless any such modification is mutually agreed upon and signed by the
parties.  




ARTICLE V
CONFIDENTIAL
INFORMATION AND NONCOMPETITION 


     5.1 Nondisclosure. During the term of this Agreement and thereafter, Employee shall not, without the
prior written consent of the Board of Directors, disclose or use for any purpose (except
in the course of his employment under this Agreement and in furtherance of the business
of the Company) confidential information, proprietary data or trade secrets of the
Company (or any of its subsidiaries), including but not limited to customer, business
planning or business strategy information, except as required by applicable law or legal
process; provided, however, that confidential information shall not include any
information known generally to the public or ascertainable from public or published
information (other than as a result of unauthorized disclosure by Employee) or any
information of a type not otherwise considered confidential by persons engaged in the
same business or a business similar to that conducted by the Company (or any of its
subsidiaries). All documents which Employee prepared or which may have been provided or
made available to Employee in the course of work for the Company shall be deemed the
exclusive property of the Company and shall remain in the Company’s possession. Upon
the termination of Employee’s employment with the Company, regardless of the reason
for such termination, Employee shall promptly deliver to the Company all materials of a
confidential nature relating to the business of the Company (or any of its subsidiaries)
which are within Employee’s possession or control.   














	





     5.2
Noncompetition. The Company and Employee agree that the services rendered
by Employee hereunder are unique and irreplaceable. For this reason and in
consideration of the benefits of this Agreement, specifically including but not
limited to applicable termination pay provisions, as well as
confidential/proprietary/trade secret information provided to Employee, Employee
hereby agrees that, during the term of this Agreement, he shall not (except in
the course of his employment under this Agreement and in furtherance of the
business of the Company (or any of its subsidiaries)) (i) engage in, as
principal, consultant or employee, any segment of a business of a company,
partnership or firm (“Business Segment”) that is directly competitive
with any significant business of the Company (and only including significant
businesses in which the Company owns at least a 50% interest) in one of its
major commercial or geographic markets or (ii) hold an interest (except as a
holder of less than 5% interest in a publicly traded firm or mutual funds, or as
a minority stockholder or unitholder in a form not publicly traded) in a
company, partnership or firm, with a Business Segment that is directly
competitive, without the prior written consent of the Company. Such provision
shall not be applicable should Employee be terminated under Section 4.6 of the
Agreement.  



     5.3
Validity of Noncompetition. The foregoing provisions of Section 5.2 shall
not be held invalid because of the scope of the territory covered, the actions
restricted thereby or the period of time such covenant is operative. Any
judgment of a court of competent jurisdiction may define the maximum territory,
the actions subject to and restricted by Section 5.2 and the period of time
during which such agreement is enforceable.  



     5.4
Noncompetition Covenants Independent. The covenants of Employee contained
in Section 5.2 will be construed as independent of any other provision in this
Agreement, and the existence of any claim or cause of action by the Employee
against the Company will not constitute a defense to the enforcement by the
Company of said covenants. Employee understands that the covenants contained in
Section 5.2 are essential elements of the transaction contemplated by this
Agreement, and but for the agreement of Employee to Section 5.2, the Company
would not have agreed to enter into such transaction. Employee has been
advised to consult with counsel in order to be informed in all respects
concerning the reasonableness and propriety of Section 5.2 and its provisions
with specific regard to the nature of the business conducted by the Company, and
Employee acknowledges that Section 5.2 and its provisions are reasonable in all
respects.  



     5.5
Cooperation. In the event of termination, and regardless of the reason
for such termination, Employee agrees to cooperate with the Company and its
representatives by responding to questions, attending meetings, depositions,
administrative proceedings and court hearings, executing documents and
cooperating with the Company and its legal counsel with respect to issues,
claims, litigation or administrative proceedings of which Employee has personal
or corporate knowledge. Employee further agrees to maintain in strict confidence
any information or knowledge Employee has regarding current or future claims,
litigation or administrative proceedings involving the Company (or any of its
subsidiaries). Employee agrees that any communication with a party adverse to
the Company, or with a representative, agent or counsel for such adverse party,
relating to any claim, litigation or administrative proceeding, shall be solely
and exclusively through counsel for the Company.  














	





     5.6
Remedies. In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 5.1, 5.2 or 5.5, the Company shall be
entitled to a temporary restraining order and an injunctive restraining the
Employee from the commission of such breach. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of money damages.  




ARTICLE VI
INDEMNIFICATION 



     The
Company shall indemnify and hold harmless Employee from any and all claims
(whether in court or before a regulatory or administrative body), liabilities,
damages and expenses, including without limitation reasonable attorneys’
fees incurred by Employee or his agents, arising out of or related to the acts
or omissions (including negligence) of Employee in the provision of services or
performance of duties under this Agreement. This indemnification section shall
survive and continue in full force and effect after the expiration of this
Agreement.  




ARTICLE VII
ARBITRATION 



     Except
for the provisions of Sections 5.1, 5.2 and 5.5 dealing with issues of
nondisclosure, noncompetition and cooperation, with respect to which the Company
reserves the right to petition a court directly for injunction or other relief,
any controversy of any nature whatsoever, including but not limited to tort
claims or contract disputes, between the parties to this Agreement or between
Employee, his heirs, executors, administrators, legal representatives,
successors and assigns and the Company and its affiliates, arising out of or
related to the Employee’s employment with the Company, any resignation from
or termination of such employment and/or the terms and conditions of this
Agreement, including the implementation, applicability and interpretation
thereof, shall, upon the written request of one party served upon the other, be
submitted to and settled by arbitration in accordance with the provisions of the
Federal Arbitration Act, 9 U.S.C. §§1-15, as amended. Each of the
parties to this Agreement shall appoint one person as an arbitrator to hear and
determine such disputes, and if they should be unable to agree, then the
two arbitrators shall choose a third arbitrator from a panel made up of
experienced arbitrators selected pursuant to the procedures of the American
Arbitration Association (the “AAA”) and, once chosen, the third
arbitrator’s decision shall be final, binding and conclusive upon the
parties to this Agreement. Each party shall be responsible for the fees and
expenses of its/his arbitrator, and the fees and expenses of the third
arbitrator shall be shared equally by the parties. The terms of the commercial
arbitration rules of the AAA shall apply except to the extent they conflict with
the provisions of this paragraph. It is further agreed that any of the parties
hereto may petition the United States District Court for the Western District of
Texas, San Antonio Division, for a judgment to be entered upon any award entered
through such arbitration proceedings.  













	





ARTICLE VIII
MISCELLANEOUS 


     8.1
Complete Agreement. This Agreement constitutes the entire agreement between the parties
and cancels and supersedes all other agreements between the parties which may have
related to the subject matter contained in this Agreement.   


     8.2
Modification; Amendment; Waiver. No modification, amendment or waiver of any provisions
of this Agreement shall be effective unless approved in writing by both parties. The
failure at any time to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of either party
thereafter to enforce each and every provision hereof in accordance with its terms.   


     8.3
Governing Law; Jurisdiction.  This Agreement and performance under it, and all proceedings
that may ensue from its breach, shall be construed in accordance with and under the laws
of the State of Texas.   


     8.4
Employee’s Representations.  Employee represents and warrants that he is free to enter
into this Agreement and to perform each of the terms and covenants of it. Employee
represents and warrants that he is not restricted or prohibited, contractually or
otherwise, from entering into and performing this Agreement, and that his execution and
performance of this Agreement is not a violation or breach of any other agreement between
Employee and any other person or entity.   


     8.5
The Company’s Representations. The Company represents and warrants that it is free to
enter into this Agreement and to perform each of the terms and covenants of it. The
Company represents and warrants that it is not restricted or prohibited, contractually or
otherwise, from entering into and performing this Agreement and that its execution and
performance of this Agreement is not a violation or breach of any other agreements
between the Company and any other person or entity. The Company represents and warrants
that this Agreement is a legal, valid and binding agreement of the Company, enforceable
in accordance with its terms.   


     8.6
Severability. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of
this Agreement shall be held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions of this
Agreement.   














	




     8.7
Assignment. The rights and obligations of the parties under this Agreement shall be
binding upon and inure to the benefit of their respective successors, assigns, executors,
administrators and heirs, provided however, that neither the Company nor Employee may
assign any duties under this Agreement without the prior written consent of the other.   


     8.8
Limitation. This Agreement shall not confer any right or impose any obligation on the
Company to continue the employment of Employee in any capacity, or limit the right of the
Company or Employee to terminate Employee’s employment.   



     8.9
Attorneys’ Fees and Costs. If any action at law or in equity is
brought to enforce or interpret the terms of this Agreement or any obligation
owing thereunder, venue will be in Bexar County, Texas and the prevailing party
shall be entitled to reasonable attorney’s fees and all costs and expenses
of suit, including, without limitation, expert and accountant fees, and such
other relief which a court of competent jurisdiction may deem appropriate.  



     8.10
Notices. All notices and other communications under this Agreement shall
be in writing and shall be given in person or by either personal delivery,
overnight delivery or first-class mail, certified or registered with return
receipt requested, with postage or delivery charges prepaid, and shall be deemed
to have been duly given when delivered personally, upon actual receipt, and on
the next business day when sent via overnight delivery, or three (3) days after
mailing first class, certified or registered with return receipt requested, to
the respective persons named below:  








	If to
the Company:  	 	Corporate Secretary 

     New Century Equity Holdings Corp. 

     10101 Reunion Place,
     Suite 450 

     San Antonio, Texas 78216  






	If to
Employee:  	 	David P. Tusa 

     10101 Reunion Place, 

     Suite 450 

     San Antonio, Texas 78216  






	


     IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
day and year indicated above.  









	 	 COMPANY:  	NEW CENTURY EQUITY HOLDINGS CORP.



By: /s/ PARRIS H. HOLMES, JR.
——————————————

Name:  Parris H. Holmes, Jr.
Title:  Chairman & CEO  





	 	EMPLOYEE: 	
      /s/ DAVID P. TUSA
——————————————

David P. Tusa