AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.4
AMENDMENT
TO EMPLOYMENT AGREEMENT
This Agreement of Amendment is entered
into as of the 25th day of
February 2009 by and between Xxxxxxxxx X. Xxxxxxxxxx (the
“Executive”) and ThermoEnergy Corporation, a Delaware corporation (the
“Company”).
Whereas, the Executive and the Company
are parties to an Employment Agreement dated as of November 18, 1999 (the
“Original Agreement”); and
Whereas, the Executive and the Company
desire to amend the Original Agreement as hereinafter set forth;
Now, therefore, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Executive and the Company hereby agree as follows:
1. Article
V of the Original Agreement is hereby deleted in its entirety and the following
new Article V is hereby substituted therefore:
“ARTICLE
V
Property Rights and
Obligations of Executive
Section 5.01 Trade
Secrets. For
purposes of this Agreement, “trade secrets” shall include, without limitation,
any and all financial, cost and pricing information and any and all information
contained in any drawing, designs, plan, proposals, customer lists, records of
any kind, data, formulas, specifications, concepts or ideas, where such
information is reasonably related to the business of the Companies and has not
previously been publicly released by duly authorized representatives of the
Companies or otherwise lawfully entered the public domain.
Section 5.02 Preservation
of Trade Secrets. Executive will
preserve as confidential all trade secrets pertaining to the Companies’ business
that have been or may be obtained or learned by him by reason of his employment
or otherwise. Executive will not, without the written consent of the
Company, either use for his own benefit or purposes or disclose or permit
disclosure to any third parties, either during the term of his employment
hereunder or thereafter (except as required in fulfilling the duties of his
employment), any trade secret connected with the business of the
Companies.
Section 5.03 Trade
Secrets of Others. Executive agrees
that he will not disclose to the Companies or induce the Companies to use any
trade secret belonging to any third party except pursuant to valid licenses or
similar rights.
Section 5.04 Property
of the Companies. Executive agrees
that no documents, reports, files, analyses, drawings, designs, tools,
equipment, plans (including, without limitation, marketing and sales plans),
proposals, customer lists, computer software or hardware, patents, license
agreements, and similar materials that are made by him or that come into his
possession by reason of his employment with the Companies shall be used by him
in any way adverse to the Companies’ interests. Executive will not
allow any such documents or things, or any copies, reproductions or summaries
thereof, to by delivered to or used by any third party without the specific
consent of the Company. Executive agrees to deliver to the Board of
Directors of the Company or its designee, upon demand, and in any event upon the
termination of Executive’s employment, all of such documents and things which
are in Executive’s possession or under his control.
Section 5.05 Non-competition
by Executive. During the term
of this Agreement, and for the applicable Non-competition Period (as such term
is hereinafter defined) following the termination of this Agreement, Executive shall not, directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
principal stockholder, corporate officer, director, or in any other individual
or representative capacity: (i) engage or participate in any business
that is in competition in any manner with the business of the Companies (with
Xxxxxxx-Thermo Carbon Capture LLC (the “Joint
Venture”) constituting one of the “Companies” for purposes of this Section 5.05
notwithstanding the direct or indirect level of ownership in the
Joint Venture at any time by ThermoEnergy Corporation); (ii) divert, take
away or attempt to divert or take away (and during the Non-competition Period, call on or solicit) any
of the Companies’ clients within the United
States. For purposes of this Agreement, the term “Non-Competition
Period” shall mean (i) with respect only to the Joint Venture, two (2) years and
(ii) with respect to all of the other Companies, one (1) year. For
purposes of this Agreement, the term “Companies’ clients” shall mean clients who had
a business relationship with any of the
Companies prior to Executive’s employment with the Company and those who develop
a business relationship with any of the
Companies during Executive’s employment with the Company; (iii) undertake
planning for or organization of any business, within the United States or in any other
country in which any of the Companies is
engaged in business activity competitive with any of the Companies’ business within the United States or
in any other country in which any of the
Companies is engaged in business, or
combine or conspire with employees or other
representatives of any of the Companies’
business within the United States or in any other country in which any of the Companies is engaged in business, for the purpose of organizing any such
competitive activity within the United States or in any other country in which
any of the Companies is engaged in
business; or (iv) induce or influence (or seek to induce or influence) any
person who is engaged, as an Executive, agent, independent contractor or
otherwise by any of the Companies, within the United States or in any other
country in which any of the Companies is engaged in business, to terminate his or her employment or
engagement. The provisions of this Section 5.05 may be waived,
generally or in specific instances, by the Company; provided, however,
that the provisions of this Section 5.05 may be waived with respect to the
business of the Joint Venture only by the Joint Venture.
Section 5.06 Survival
Provisions and Certain Remedies Unless otherwise agreed to in
writing between the parties hereto, the provisions of this Article V shall
survive the termination of this Agreement. The covenants in this
Article V shall be construed as separate covenants and to the extent any
covenant shall be judicially unenforceable, it shall not affect the enforcement
of any other covenant. In the event Executive breaches any of the
provisions of this Article V, Executive agrees that the Company may be entitled
to injunctive relief in addition to any other remedy to which the Company may be
entitled.”
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2. Except
as expressly amended hereby, the Original Agreement shall remain in full force
and effect without amendment or alteration.
3. The
Executive hereby acknowledges that all documents, reports, files, analyses,
drawings, designs, tools, equipment, plans (including, without limitation,
marketing and sales plans), proposals, customer lists, computer software or
hardware, patents, license agreements, and similar materials made by him
and related to the Companies’ clean energy technology known as
ThermoEnergy Integrated Power System (“TIPS”), which is a pressurized
oxy-fuel combustion technology for multi-pollutant capture that gasifies or
combusts fossil fuels (particularly coal and biomass) and facilitates conversion
into electricity without producing air emissions, and is aimed at competing with
conventional energy conversion technologies, are the property of the
Companies.
4. This
Agreement may be executed in counterparts, each of which shall be considered an
original but all of which, taken together, shall constitute a single
Agreement. Delivery of an executed copy of this Agreement by
facsimile or other electronic transmission shall be deemed delivery of the
original, notwithstanding any subsequent failure or refusal to deliver a copy
signed in ink.
In
witness whereof, the parties have executed this Agreement as of the 25th day of
February 2009.
ThermoEnergy
Corporation
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/s/ Xxxxxxxxx X.
Xxxxxxxxxx
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Xxxxxxxxx
X. Xxxxxxxxxx
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By:
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/s/ Xxxxxx X. Xxxxxx
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Chief Financial Officer
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Xxxxxx X. Xxxxxx
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