EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of January 31, 1992 (the "Effective Date"), by and between XXXX
XXXX, a resident of Humble, Texas (the "Executive"), and COMPRESSOR DYNAMICS,
LTD., a Texas limited partnership (the "Company").
WITNESSETH:
In consideration of the employment by the Company, and of the
compensation and other remuneration to be paid by the Company to the Executive
for such employment, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the Executive, the Company
and the Executive agree as follows.
1. EMPLOYMENT TERM: TERMINATION.
(a) Subject to the terms and conditions hereof, the Company agrees to
employ the Executive for a term commencing as of the Effective Date and
continuing through the earliest to occur of:
(i) the death or Disability of the Executive;
(ii) the discharge of the Executive by the Company "For
Cause" (as defined below);
(iii) the discharge of the Executive by the Company other than
"For Cause";
(iv) the Company files a voluntary bankruptcy petition or is
otherwise adjudicated to be bankrupt or insolvent by a
court of competent jurisdiction; or
(v) January 31, 1997.
Such period of employment is referred to herein as the "Employment Term." The
Executive hereby accepts such employment subject to the terms and conditions
hereof.
(b) As used herein, "For Cause" shall mean any one or more of the
following:
(i) material or repeated violation by the Executive of the
terms of this Agreement or his material or repeated
failure to perform his duties as described in Section 2
in a manner consistent with his position;
(ii) excessive absenteeism on the part of the Executive not
related to illness;
(iii) the Executive's indictment for a felony;
(iv) the Executive's commission of fraud, embezzlement, theft
or crimes constituting moral turpitude, in any case
whether or not involving the Company, that, in the
reasonable opinion of the Company, render the
Executive's continued employment harmful to the Company;
(v) the voluntary resignation of the Executive without the
prior consent of the Company unless such resignation
arises from the breach of the Company of this Agreement
or actions of the Company that violate applicable laws;
(vi) substance abuse on the part of the Executive; or
(vii) the Executive knowingly acting in bad faith relative to
the Company's business interests.
(c) As used herein, "Disability" shall mean a physical or mental
incapacity of the Executive that, in the good faith determination of the
Company, has prevented him from performing the duties assigned him by the
Company for 90 consecutive days or for a period of more than 90 days in
aggregate in any 18 month period and that, in the determination of the Company
after consultation with a medical doctor appointed by the Company, may be
expected to prevent the Executive for any period of time thereafter from
devoting his full time and energies to his duties as provided hereunder. The
Executive's employment hereunder shall cease as of the date of such
determination. The Executive agrees to submit to medical examinations, at the
Company's sole cost and expense, to determine whether a Disability exists
pursuant to reasonable requests that the Company may make from time to time.
During the period of any such physical or mental incapacity as provided above,
the salary otherwise payable to the Executive may, in the absolute discretion of
the Company, be reduced by the amount of any disability benefits or payments
received by the Executive from the Company or any health plan funded in whole or
in part by the Company (excluding health insurance benefits or other
reimbursement of medical expenses attributable to insurance policies that have
not been funded in any part by the Company).
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2. DUTIES. The Executive shall hold the title of president and
agrees to perform the duties normally associated with that office under the
control and at the direction of the Company and such other duties as the Company
from time to time may direct consistent with his position. The Executive will
devote his full productive time, skill, energy, knowledge, and best efforts
during the Employment Term to such duties, and he will faithfully and diligently
endeavor to the best of his ability to further the best interests of the Company
during the Employment Term. The place of business of the Executive shall be
initially located in or about Houston, Texas. The Executive shall travel to
such geographical locations as may be appropriate and reasonable from time to
time to carry out his duties for the Company. In the event that the Company
requires that the Executive permanently move to a new location in furtherance of
the Company's business, the Company shall pay all reasonable moving expenses
incurred by the Executive in connection with such move that have been pre-
approved by the Company in writing. If the Executive fails to move to such new
location within a reasonable time period required by the Company, the Executive
shall be deemed to have terminated the Employment Term pursuant to Section
1(b)(v), and the Company shall pay the Executive a monthly amount equal to one-
twelfth of the Executive's annual base salary determined as of the date of the
termination of the Employment Term, commencing on the last day of the first full
month following termination of the Employment Term, and continuing through the
last day of the third full month following such termination.
3. COMPENSATION AND BENEFITS.
(a) For all services rendered by the Executive under this Agreement,
the Company shall pay the Executive a base salary at the rate of $119,200 per
year, payable bi-weekly currently during the Employment Term. Bonus payments
and base salary adjustments, other than as described in this Agreement, if any,
may be made in the sole discretion of the Company and nothing in this Agreement
shall entitle the Executive to receive any bonus payments other than as
described in this Agreement. The Executive shall be entitled to receive group
health/dental insurance, disability insurance and similar benefits as are made
available to the Company's employees generally. The Executive shall also be
entitled to receive such benefits as the Company from time to time may elect
in its discretion to provide for him. The Executive shall be entitled to
fifteen business days paid vacation during each full year of his employment
hereunder, but shall not take more than ten consecutive business days at any
given time. Such vacations shall be taken at such times as are consistent with
the reasonable business needs of the Company. All vacation days that the
Executive is entitled to hereunder must be taken, if at all, on or before
December 31 of each year. The right to any vacation days not taken by the
Executive in any calendar year will be forfeited by the Executive as of
December 31 of each year.
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(b) The Company shall pay the Executive as of the end of each calendar
year during the Employment Term, a bonus (the "EBIT Bonus") equal to 5% of the
annual earnings before interest and taxes, and management fees charged by
beneficial owners of the Company, calculated in accordance with generally
accepted accounting principles ("EBIT") attributable to the operations of the
facilities leased by Company and located in Houston, Texas, Eastland, Texas, and
Seminole, Oklahoma and such other locations as may be established by the Company
from time to time (the "Facilities") if EBIT for any given fiscal year of the
Company exceeds $325,000. For any fiscal year in which the Employment Term
terminates, the EBIT Bonus shall be payable, if at all, to the Executive on a
pro rata basis based on the number of days in such fiscal year that the
Executive was employed by the Company. In no event shall the Company be
obligated to pay the EBIT Bonus to the Executive for any fiscal year if during
such fiscal year the Executive breaches any obligation of the Executive under
this Agreement or under any other written agreement entered into between the
Executive and the Company. The EBIT Bonus shall be payable to the Executive
only if the operations of the Facilities produce a positive Discretionary Cash
Flow (as defined below) for any given fiscal year. The term "Discretionary Cash
Flow" shall mean, in all cases with respect to the operations of the Facilities,
EBIT plus depreciation and amortization, less capital expenditures, scheduled
term loan payments (both principal and interest), and federal and state income
taxes payable (based on the actual taxable income resulting from all operations
of the Facilities as determined by the Company at the tax rates for the fiscal
year in question applicable to the beneficial owners of the Company).
(c) The Company will provide the Executive with an automobile (the
"Automobile") for use by the Executive in connection with the performances of
his duties under this Agreement. The Executive may also use the Automobile for
reasonable personal use. The Executive shall return the Automobile to the
Company upon the termination of the Employment Term.
(d) The Company will pay the premiums on a $500,000 term life
insurance policy (the "Policy") selected by the Company and covering the
Executive for a period beginning on January 31, 1992, and continuing through the
end of the Employment Term. The Company will be the beneficiary under the
Policy.
(e) Within 30 days of the closing of any sale of all of the assets
used by the Company in operating the business formerly known as "Compressor
Dynamics" (the "Assets"), as the same may be subsequently expanded by the amount
of any additional capital contributions and/or the initial federal income tax
basis in any additional assets contributed to the Company, contracted or
modified during the Employment Term, the Company agrees to pay to the Executive
10% of an amount equal to: (i) the net present value (as of the sale date) of
all consideration received by the Company upon such sale of the Assets (the "Net
Present Value"), less (ii) the Company's initial federal income tax
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basis in the Assets (including a purchase price of $3,600,000 plus other
capitalizable acquisition costs (including, without limitation, legal expenses,
due diligence costs and points)) estimated to be approximately $3,650,000 as of
January 31, 1992, increased by the amount of any capital contributions and/or
the initial federal income tax basis in any additional assets contributed to the
Company (the "Company's Basis"). If the Executive is terminated pursuant to
Section 1(a)(iii) and a sale of the Assets occurs within one year following such
date of termination, the Company shall pay to the Executive, within 30 days
following the closing of any such sale of the Assets, 10% of the amount by which
the lesser of (i) the Net Present Value, or (ii) the fair market value of the
net assets of the business formerly known as "Compressor Dynamics", as the same
may be subsequently expanded, contracted or modified as determined by the
Company, in its sole judgment, as of the date of termination of the Executive,
exceeds the Company's Basis; provided, however, that in no event shall the
Company be obligated to make such payment to the Executive if the Executive
breaches any material obligation of the Executive under this agreement or under
any other written agreement entered into between the Executive and the Company.
If the Executive is terminated pursuant to Section 1(a)(iii) and a sale of the
Assets does not occur within one year following such date of termination, the
Company shall issue to the Executive an unsecured, non-interest bearing
promissory note executed by the Company and payable to the Executive upon the
earlier to occur of (A)five years following the date of termination of the
Executive, or (B) 30 days following the closing date of any sale of assets, in
the original principal amount of an amount equal to 10% of the amount by which
the fair market value of the net assets of the business formerly known as
"Compressor Dynamics", as the same may be subsequently expanded, contracted, or
modified as determined by the Company, in its sole judgment, as of the date of
termination of the Executive, exceeds the Company's basis; provided, however,
that in no event shall the Company be obligated to issue such promissory note or
make such payment to the Executive if the Executive breaches any obligation of
the Executive and the Company.
4. REIMBURSEMENT FOR BUSINESS EXPENSES. During the Employment Term, the
Executive is authorized to incur reasonable, ordinary and necessary business
expenses in the performance of his duties to the Company in accordance with
policies established by the Company form time to time. The Executive shall
account to the Company for all such expenses and the Company shall pay or
reimburse the Executive for such expenses in accordance with the reimbursement
policies established by the Company.
5. EFFECT OF TERMINATION OF EMPLOYMENT TERM: SEVERANCE. If the Employment
Term is terminated, then the Executive's rights and the Company's obligations
hereunder (including, without limitation, the Company's's obligation to pay
salary and bonuses and provide benefits as set forth herein) shall forthwith
terminate except as expressly provided in this agreement. If the Employment Term
is terminated pursuant to Section 1(a)(iii),
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the Company shall pay the Executive one-half of his annual base salary as
provided in Section 3(a) within 30 days following of such termination and shall
pay to the Executive if the Executive has not yet been employed elsewhere, a
monthly amount equal to one-twelfth of the Executive's annual Base salary
determined as of the date of termination commencing on the last day of the
seventh month following the date of such termination and continuing on the last
day of each month thereafter until the earlier to occur of (a) the date the
Executive is employed elsewhere, or (b) the last day of the twelfth full month
following the date of such termination. If the Employment Term is terminated
pursuant to Section 1(b)(v) within 30 days following any reduction in the
Executive's annual base salary by 15% or more, the Company shall pay the
Executive a monthly amount equal to one-twelfth of the Executive's annual base
salary determined as of the date of termination of the Employment Term
commencing on the last day of the first month following the termination of the
Employment Term, and continuing through the last day of the third full month
following such termination.
6. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that he will have access to certain information of members of the Company Group
(as defined below) and that such information is confidential and constitutes a
valuable, special and unique property of such members of the Company Group. As
used herein "Company Group" means the Company, its partners, and any entity that
directly or indirectly controls, is controlled by, or is under common control
with the Company or any of its partners, and for purposes of this definition
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract or otherwise (it being
understood that the limited partners in the Company do not control such
partnership or entity it controls). Except as required by law, the Executive
shall not at any time, either during or subsequent to the Employment Term,
disclose to others, use, copy or permit to be copied, except in pursuance of his
duties for and on behalf of the Company, it successors, assigns or nominees, any
Confidential Information of any member of the Company Group (regardless of
wether developed by the Executive) without the prior written consent of Company.
The term "Confidential Information" with respect to any person means any secret
or confidential information or know how and shall include, but shall not be
limited to, the plans, the customers, costs, prices, uses, and applications of
products and services, results of investigations, studies or experiments owned
or used by such person, and all apparatus, products, processes, compositions,
samples, formulas, computer programs, computer hardware designs, computer
firmware designs, and servicing, marketing, or manufacturing methods, and
techniques at any time used, developed, investigated, made or sold by such
person, before or during the Employment Term, that are not are not readily
available to the public or that are maintained as confidential by such person.
The term "Confidential Information" shall not include any information or data
that becomes generally available to the public other than by a breach of the
Executive of his obligations under this Agreement. The Executive shall maintain
in confidence any
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Confidential Information of third parties received as a result of his employment
with the Company in accordance with the Company's obligations to such third
parties and the policies established by the Company.
7. DELIVERY OF DOCUMENTS UPON TERMINATION. The Executive shall deliver
to the Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made
composed or received by the Executive, solely or jointly with others, that are
in the Executive's possession, custody, or control at termination and that are
related in any manner to the past, present, or anticipated business of any
member of the Company Group. In this regard, the Executive hereby grants and
conveys to the Company all right, title and interest in and to, including
without limitation, the right to poses, print, copy, and sell or otherwise
dispose of, any reports, records, papers, summaries, photographs, drawings or
other documents, and writings, and copies, abstracts or summaries thereof, that
may be prepared by the Executive or under his direction or that may come into
his possession in any way during the term of his employment with the Company
that relate in any manner to the past, present, or anticipated business of any
member of the Company Group.
8. DISCLOSURE AND RECEIPT OF CONFIDENTIAL INFORMATION. The Executive
shall not, at any time during his employment, receive from persons not employed
by the Company, any Confidential Information, as described above, not belonging
to the Company, unless a valid agreement is authorized by the Company and is
signed by both the Company and the disclosing party. The Executive shall not
use or disclose to other employees of the Company, during his employment with
the Company, Confidential Information belonging to his former employers, former
business associates, or any other third parties unless written permission has
been given by such third parties to the company and accepted by the Company to
allow the Company to use and/or disclose such information. The Executive shall
defend and indemnify the Company Group for any breach of the covenant contained
on the preceding sentence; provided, however, that the indemnity contained in
this sentence shall be limited to actual damages incurred by the Company Group
and any claim by the Company Group for indemnification under this sentence must
be commenced within three years following the termination of the Employment
Term.
9. INTELLECTUAL PROPERTY. The Executive shall hold in trust for the
benefit of the Company, and shall disclose promptly and fully to the Company in
writing, and hereby assigns, and binds his heirs, executors, and administrators
to assign to the Company any and all inventions, discoveries, ideas, concepts,
improvements, copyrightable works, and other developments (the "Developments")
conceived, made, discovered or developed by him, solely or jointly with others,
during the term of his employment by the Company, whether during or outside of
usual working hours and whether on the Company's premises or not, that relate in
any manner to the past, present or anticipated business of the
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Company. All works of authorship created by the Executive, solely or jointly
with others, shall be considered works made for hire under the Copyright Act of
1976, as amended, and shall be owned entirely by the Company. Any and all such
Developments shall be the sole and exclusive property of the Company, whether
patentable, copyrightable, or neither, and the Executive shall assist and fully
cooperate in every way, at the Company's expense, in securing, maintaining, and
enforcing, for the benefit of the Company or its designee, patents, copyrights
or other types of proprietary or intellectual property protection for such
developments in any and all countries. Within one year following the end of the
Employment Term and without limiting the generality of the foregoing, any
Development of the Executive relating to any subject matter on which the
Executive worked or was informed during his employment by the Company shall be
conclusively presumed to have been conceived and made prior to the termination
of his employment (unless the Executive clearly proves that such development was
conceived and made following the termination of his employment), and shall
accordingly belong and be assigned tot he Company and shall be subject to this
Agreement.
10. FURTHER ACTS. At the request of the Company (but without additional
compensation from the Company during his employment by the Company) the
executive shall execute any and all papers and perform all lawful acts that
the Company may deem reasonably necessary or appropriate to further evidence
or carry out the transactions contemplated in this Agreement including,
without limitation, such acts as may be necessary for the preparation,
filing, prosecution, and maintenance of applications for United States
letters patent and foreign letters patent, or for United States and foreign
copyright, on the Developments.
11. NO CONFLICTS, DISCLOSURE. Without the prior written consent of the
Company, the Executive shall not, directly or indirectly, enter into any
business affiliation or enterprise, including without limitation, the
establishment of a proprietorship or the participation in a partnership or joint
venture or acquire any equity interest in a corporation (other than solely on
account interests not amounting to more than 5% of the total equity interests in
an entity if such interests are traded on stock exchanges or through other
recognized securities markets or were acquired though a syndication in which the
Executive did not participate, directly or indirectly, as a promoter ("Excluded
Interests")). The Executive represents and warrants that, except as disclosed
on Exhibit A. Attached hereto, as of the Effective Date he is not engaged in
any such business affiliation and does not own any such equity interests.
Moreover, in keeping with the Executive's fiduciary duties to the Company, the
Executive shall not, acting alone or in conjunction with others, directly or
indirectly, become involved in any conflict of interest, or upon discovery
thereof, allow such conflict to continue. The Executive shall promptly disclose
to the Company any facts that might involve any reasonable possibility of a
conflict of interest. It is agreed that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly commercial
activities, which interest
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might in any way adversely affect any member of the Company Group involves a
possible conflict of interest. Circumstances in which a conflict of interest on
the part of the Executive would or might arise, and which should be reported
immediately by the Executive to the Company include, but are not limited to, the
following: (a) acceptance, directly or indirectly, of payments, services or
loans from a supplier, contractor, subcontractor, customer or other entity with
any member of the Company Group does business, including, but not limited to,
gifts, trips, entertainment, or other favors of more than nominal value; (b)
misuse of information or facilities of any member of the Company Group to which
the Executive has access in a manner which will be detrimental to the interests
of the Company Group such as utilization for the Executive's own benefit of
know-how or information developed through the business or research activities of
any member of the Company Group; and (c) the appropriation to the Executive or
the diversion to others, directly or indirectly, of any business opportunity
with respect to which it is known that any member of the Company Group, or could
be reasonably be anticipated that the Company, would be interested such as the
opportunity for purchase or lease of real estate, the creation of a joint
venture or other business relationship, or the marketing of products, services
or the like.
12. NO COMPETITION. Throughout the Employment Term and, unless the
Employment Term terminates pursuant to Section 1(a)(iii), through the first
anniversary of the expiration thereof, the Executive shall not directly or
indirectly engage in the business of leasing, packaging, servicing, renting, or
selling compressors, compressor packages, or compressor components or any other
business in which any member of the Company Group directly or indirectly engages
during the Employment Term; provided, however, that the restriction in this
Section 12 shall apply only to the reasonable and limited geographic area
consisting of any state in which any member of the Company Group directly or
indirectly has offices, operates or otherwise conducts business. For purposes
of this Section 12, a person shall be deemed to engage in any business or have
offices indirectly if any entity in which such person has a direct or indirect
equity interest (other than Excluded Interests) engages in such business or has
such offices.
13. NO TAMPERING. Throughout the Employment Term and through the
first anniversary of the expiration thereof, the Executive shall not
intentionally (a) request, induce or attempt to influence any distributor or
supplier of goods or services to any member of the Company Group to curtail or
cancel any business they mat transact with any member of the Company Group; (b)
request, induce or intentionally attempt to induce any customers of any member
of the Company Group that have done business with ir potential customers which
have been in contact with any member of the Company Group to curtail or cancel
any business they may transact with any member of the Company Group; or (c)
request, induce or attempt to influence any employee of any member of the
Company Group to terminate his or her employment with such member of the Company
Group.
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14. PUBLICITY AND ADVERTISING. The Executive agrees that the Company
may use his name, picture, or likeness for any Company advertising, publicity,
or other business purpose at any time, during his employment by the Company and
may continue to use materials generated during his employment for a period of
six months thereafter. Such use of the Executive's name, picture or likeness
shall not be deemed to result in any invasion of the Executive's privacy or in a
violation of any property right the Executive might have; and the Executive
shall receive no additional consideration if his name, picture or likeness is so
used. The Executive further agrees that any negatives, prints or other material
for printing or reproduction purposes prepared in connection with the use of his
name, picture or likeness by the Company shall be and are the sole property of
the Company.
15. REMEDIES. Each party hereto acknowledges that a remedy at law
for any breach of Executive's obligations under Sections 6 through 13 may be
inadequate, agrees that each other party may be entitled to specific performance
and injunctive and other equitable remedies in case of any such breach or
attempted breach, and further agrees to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such injunctive
or other equitable relief. To the extent allowed by law, the Company shall have
the right to offset against amounts to be paid to the Executive pursuant to the
terms hereof any amounts from time to time owing by the Executive to the
Company. The termination of the Employment Term for any reason shall not be
deemed to be a waiver by the Company of any breach by the Executive of this
Agreement or any other obligation owed the Company, and notwithstanding such a
termination the Executive shall be liable for all damages attributable to such a
breach; provided, however, that the Company shall commence any legal action, if
at all, against the Executive for damages attributable to such a breach within
five years following any such termination of the Employment Term.
16. NO WAIVER. No waiver or non-action by either party with respect
to any breach by the other party of any provision of this agreement, nor the
waiver or non-action with respect to the provisions of similar agreements with
other employees or the breach thereof, shall be deemed or construed to be a
waiver of any succeeding breach of such provision, or as a waiver of the
provision itself.
17. INVALID PROVISIONS. Should any portion of this agreement be
adjudged or held to be invalid, unenforceable and void, such holding shall not
have the effect of invalidating or voiding the remainder of this Agreement and
the parties hereby agree that the portion so held invalid, unenforceable and
void, shall if possible, be deemed amended or reduced in scope, or otherwise be
stricken from this Agreement to the extent required for the purposes of validity
and enforcement thereof.
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18. SUCCESSORS AND ASSIGNS. The Executive may not assign his rights
or delegate his duties or obligations hereunder without the written consent of
the Company. Otherwise, this Agreement shall be binding upon and inure to the
parties hereto and their respective heirs, executors, distributees, and
permitted successors and assigns.
19. SURVIVAL OF THE EXECUTIVE'S OBLIGATIONS. The Executive's
obligations under this Agreement shall survive for a period of three years
following the termination of the employment Term, regardless of whether the
Executive's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or with out cause.
20. PRIOR AGREEMENTS. This Agreement incorporates the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, documents, or other instruments with respect to
the matters covered hereby.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH THE PROVISIONS OF, THE LAW OF THE STATE OF TEXAS,
WITHOUT REFERENCE TO PROVISIONS THAT REFER A MATTER TO THE LAW OF ANY OTHER
JURISDICTION.
22. NO ORAL MODIFICATIONS. This Agreement may not be changed or
terminated orally, and no change, termination or waiver of this Agreement or of
any of the provisions herein contained shall be binding unless made in writing
and signed by both parties. Without limiting the foregoing, any change or
changes, from time to time, in the Executive's salary or duties or both shall
not be, nor bedeemed to be, a change, termination or waiver of this Agreement
or of any of the provisions herein contained.
23. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing, and shall be deemed properly given if
delivered personally, mailed by certified mail, postage prepaid and return
receipt requested, sent by facsimile, or sent by Express Mail or Federal Express
or other nationally recognized express delivery service, as follows:
If to the Company:
Compressor Dynamics, Ltd.
c/o The Catalyst Group, Inc.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy No. (000) 000-0000
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If to the Executive:
Xxxx Xxxx
00000 Xxxxxx Xxxxxxx Xx.
Xxxxxx, Xxxxx 00000
Notice given by hand, Express Mail, Federal Express, or other such express
delivery service shall be effective upon actual receipt. Notice given by
facsimile transmission shall be effective upon actual receipt if received during
the recipient's normal business hours, or at the beginning of the recipient's
next business day after receipt if not received during the recipient's normal
business hours. All notices by facsimile transmission shall be confirmed
promptly after transmission in writing by certified mail or personal delivery.
Any party may change an address to which notice is to be given to it by giving
notice as provided above of such change of address.
24. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES. The Executive
represents and warrants that he is legally free to make and perform this
Agreement, that he has no obligation to any other person or entity that would
affect or conflict with any of his obligations hereunder, and that the complete
performance of his obligations hereunder will not violate any law, regulation,
order or decree of any governmental or judicial body or contract by which he is
bound.
25. ARBITRATION. The parties agree that any dispute or claim
concerning this Agreement or the terms and conditions of employment, including
whether such dispute or claim is arbitrable, will be settled by binding
arbitration. The arbitration proceeding shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association in effect at the time
a demand of arbitration was made. A decision and award of the arbitrator made
under said rules shall be exclusive, final and binding on both parties, their
heirs, executors, administrators, successors and assigns. All reasonable costs
and expenses of the arbitration shall be borne by the party against whom such
arbitrator rules.
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EXECUTED as of the first date written above.
COMPRESSOR DYNAMICS, LTD.
By: CATALYST COMPRESSOR, INC.
By: /s/Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
--------------------------------
Title: President
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/s/Xxxx X. Xxxx 2/14/92
-----------------------------------------
XXXX XXXX
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EXHIBIT A
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June 15, 1995
Xx. Xxxx Xxxx
Compressor Dynamics, Inc
000 Xxxxx Xx.
Xxxxxxx, Xxxxx 00000
Dear Xxxx:
Pursuant to Section 18 (see attached) of the employment contract executed on
1/31/92 between yourself and Compressor Dynamics, Ltd., the contract has been
assigned to Compressor Dynamics, Inc.
Please sign in the space provided below indicating your acceptance and
acknowledgement of this assignment. Please return the original to us.
Sincerely,
/s/Xxxxxx Xxxxxx
----------------
Xxxxxx Xxxxxx
Accepted and Acknowledged
this 15th day of June, 1995 by:
/s/Xxxx X. Xxxx
-------------------------------
Xxxx Xxxx
Amendment to employment agreements dated January 31, 1992 between Executive and
the Company:
By mutual agreement, we acknowledge that it was the understanding and intent
that the obligations specified in paragraph 3(e) of the employment agreement
dated January 31, 1992 between the Executive and the Company would be honored by
Catalyst Capital Partners I, Ltd. ("CCP I, Ltd.", the limited partner of
Compressor Dynamics Ltd.)and not by the Company. Therefore, we hereby mutually
agree to amend paragraph 3 (e) to replace "the Company" with CCP I, Ltd. (a
Texas limited partnership).
Furthermore, we hereby acknowledge that the 385,714 shares of Catalyst Energy
Services Inc. common stock granted to the Executive in September, 1995 were in
full satisfaction of CCP I, Ltd.'s obligation under paragraph 3(e) of the
agreement. All other terms and conditions of the employment agreement between
the Executive and the Company remain in full force and effect.
Agreed to this 8 day of
March, 1996
Executive:
/s/Xxxx X. Xxxx
----------------------
Compressor Dynamics, Inc.:
/s/Xxxx X. Xxxx
----------------------
By its President
Catalyst Capital Partners I, Ltd.:
/s/Xxxx Xxxxxxx
-----------------------
Xxxx Xxxxxxx, V.P. of its
General Partner
The Catalyst Group Inc.
