EXHIBIT 10.38
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated September 11, 2001, between XXXXXXX XXXXXX XXXXXX
(the "Executive") and THERMOENERGY CORPORATION (the "Company"), with its
principal office at 0000 Xxxxx Xxxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000.
WHEREAS, Company is engaged in the clean water and clean energy business
and desires to engage in the brokerage and trading of natural gas and other
energy forms; and
WHEREAS, the Company desires to employ Executive as its Vice President
of Energy Resources; and
WHEREAS, Executive desires to accept such employment, for the term and
upon the other conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein. Executive and Company hereby agree as follows:
ARTICLE I
EMPLOYMENT
Section 1.01. Position Initial Term Responsibilities. Company shall
employ Executive as its Vice President for a term commencing on September 1,
2001, and ending on December 31, 2005 provided, however, that such terms shall
be extended, as of the end of each year beginning December 31, 2002, for one
additional year (the result of the extensions will be a continuous four-year
term at the time of contract extension), unless either Executive or Company
shall have terminated this provision by written notice to the other party at
least 60 days prior to such extension. The forgoing provision is subject to
subsection 1.02 of this Section. Subject to the powers, authorities, and
responsibilities vested in the Board of Directors (the "Board") of Company under
the general corporation law of the State of Arkansas and in duly-constituted
committees of the Board, Executive shall have the responsibility and authority
for formulation and execution of the corporate policy, and of the administration
of the corporate affairs of Company, and such other responsibilities and
authorities as are customarily exercisable by a Vice President. Initially,
Executive shall serve as Vice President of Energy Resources. Executive shall
also perform such other executive and administrative duties (not inconsistent
with the positions of Vice President of Energy Resources) as Executive may
reasonably be expected to be capable of performing on behalf of Company) its
subsidiaries and affiliates (collectively, including Company, "Companies"), as
may from time-to time be authorized or directed by the Board. Executive agrees
to be employed by Company in all such capacities for the Employment period,
subject to all the covenants and conditions hereinafter set forth.
Section 1.02. Performance Review. Six (6) months from the date of
signing this Agreement, the Company and Executive shall meet to evaluate
Executive's performance as
part of continuing the arrangement under this Agreement, and mutually agree as
to whether such arrangement shall continue in force for the full term of the
Agreement as outlined in the first sentence of Article I, Section 1.01 of this
Agreement. Should the Company and Executive mutually agree to terminate this
Agreement, then all obligations of each party shall end, except those covenants
stated in Article V of this Agreement. Should the Company and Executive mutually
agree to continue the Agreement, then the terms and conditions under the
Agreement shall be placed in full force for the duration of the Agreement as set
forth in this section or be modified as mutually agreed upon.
Section 1.03. Duties. During the Employment period, Executive shall
perform faithfully the duties assigned to him hereunder to the best of his
abilities and devote his full and undivided business time and attention to the
transaction of Company's businesses during the Company's normal working hours
and not engage in any other business activities in any field of the Company's
business except with the approval of the Chief Executive Officer or Board of
Directors.
ARTICLE II
COMPENSATION
Section 2.01. Basic Compensation. As compensation for his services
hereunder, Company shall pay to Executive during the Employment Period a minimum
annual salary of $84,000, payable in equal monthly installments in accordance
with Company's normal payment schedule for senior management of Company. As of
the first day of each fiscal year of Company during the Employment Period,
commencing January 1,2003, Executive's minimum annual salary shall be increased
15 percent for the next succeeding year until Executive's salary is $150,000.
Thereafter, Executive's salary will be adjusted by multiplying $150,000 by a
fraction the numerator of which is the Consumer Price Index for All Urban
Consumers ("the CPI-U") for the month of November of the preceding fiscal year
of Company, as published by the United States Department of Labor's Bureau of
Labor Statistics, and the denominator of which is the CPI-U for November of the
year in which Executive's Salary becomes $150,000. However, in no event shall
Executive's base salary after switching to the CPI-U based index be less than
$150,000. Executive's annual salary in effect from time-to-time under this
Section 2.01 is hereinafter called his "Basic Compensation". In the event that
Executive's Basic Compensation is not paid as proved above, any amount not paid
shall be deemed deferred and paid with interest as provided in Sections 2.02(C)
and 2.02(D).
Section 2.02.Incentive Compensation.
A. Formula for Determining. In addition to Basic Compensation, Company
shall pay to Executive as incentive compensation ("Incentive Compensation"), in
respect of each fiscal year of Company or portion thereof included within the
Employment Period, an amount (not to exceed 50 percent of his Basic
Compensation) determined in accordance with a formula to be established annually
in good faith by the Board of a committee (the "Compensation Committee") thereof
authorized to act on compensation matters and, in the case of each fiscal year
commencing after December 31, 2001, communicated to Executive prior to the
beginning of such fiscal year, such formula to give a 50 percent weight to
Company's
performance (measured by such method or combination of methods as the Board of
the Compensation Committee shall deem fair and equitable) during each fiscal
year, and a 50 percent weight to Executive's performance (determined by the
Board or the Compensation Committee on the basis of personal goals established
for Executive) during each fiscal year. The formula shall be established so that
Executive will have a reasonable opportunity, through diligent performance of
his duties, to earn the maximum Incentive Compensation, with partial Incentive
Compensation being earned for partial achievement of the performance standard.
In the absence of manifest error, the determination of the amount of Incentive
Compensation by the Board of the Compensation Committee in accordance shall be
binding upon Executive and Company.
B. Special Trading Compensation. Executive's primary duties include the
direct or supervised sales, trade or barter of energy products. The Board can,
at its discretion, institute special compensation for Executive based on a
percentage of the dollar value directly related to the volume of specific or
collective trade(s) as a result of the direct efforts of Executive. The size and
scope of such compensation will be modeled on a standardized formula for
executives standardized by the energy trading industry. Such compensation will
be negotiated within the context of Executives overall compensation package. The
Executive will be eligible for Special Trading Compensation no sooner than six
(6) months, nor later than twelve (12) months from the signing of this
Agreement.
C. Special Consulting Compensation. Executive may, on behalf of the
Company, engage in other duties associated with his position including, but
limited to, acting as a professional consultant on various energy related
projects. Special Compensation for Executive on any such contract(s) that he
personally performs will be Fifty-One percent (51%) of the billing rate of the
contract. Compensation based on personal performance will be paid on the first
of the month following receipt of payment from client. Special Consulting
Compensation will be in force immediately upon signing of this Agreement.
D. Manner of Payment. Incentive Compensation earned hereunder shall be
determined by the Board of the Personnel Committee as soon as reasonably
practicable after the end of each fiscal year of Company and shall be paid
promptly thereafter to the Executive. However, if the Board in its judgment
concludes that Company's financial position is such that it cannot pay Incentive
Compensation due Executive currently, it may give a written notice (a "Deferral
Notice") to Executive to the effect that all or a designed percentage of his
Incentive Compensation for such fiscal year shall be deferred. Each Deferral
Notice shall specify that the Incentive Compensation (or a designated percentage
thereof) earned in respect of the applicable fiscal year shall be paid to
Executive in a designated number of equal monthly installments (not less than 12
and not more than 36) and the date upon which such installment payments shall
commence.
E. Deferred Compensation. Deferred Basic Compensation and deferred
Incentive Compensation shall bear interest on the unpaid balance thereof from
the last day of the fiscal year in respect of which it was earned at the average
prime commercial lending rate at Bank of America, or its successor, for 90-day
loans to commercial borrowers of the highest credit standing, as supplied to
Company annually by its prima computed annually in arrears, shall
be added as of the last day of each fiscal year of Company to the deferred Basic
Compensation and deferred Incentive Compensation with respect to which it was
earned, and shall thereafter bear interest as above provided. In the event of
the death of Executive, deferred Basic Compensation and deferred Incentive
Compensation and the interest earned thereon shall be paid to such person or
persons or the executors, administrators, or other legal representatives of such
person or persons ( and in such order of priority ) as Executive may have
designed in a written instrument filed with the Secretary of Company (all such
persons, executors, administrators, and other legal representatives being
hereinafter collectively called his "Designated Successors"); and in the event
of the legal incompetence of Executive, deferred Basic Compensation and deferred
Incentive Compensation and the interest earned thereon shall be paid to his
lawfully appointed guardian.
F. Right to Payment of Deferred Amounts Unconditional. Anything in this
Agreement to the contrary notwithstanding, Company's obligation to make payments
of Basic Compensation and Incentive Compensation earned by Executive and either
not paid as provided in Section 2.01 or deferred in accordance with paragraph
(B) of this Section 2.02.
G. Special Incentive Bonus. Upon signing of this Agreement, Executive
will receive a one-time cash bonus equal to one month gross base compensation
($7,000).
H. Car Allowance Bonus. Upon achieving a minimum of $3,500,000 gross
monthly energy trading volume for four consecutive months, the Company shall pay
the Executive an automobile allowance equivalent of $500.00 per month. This
allowance shall continue throughout the term of employment and be automatically
adjusted for inflation on an annual basis using the CPT -U index or at the
discretion of the Compensation Committee.
I. Employee Stock Ownership Plan. After the six (6) month period, the
Company agrees to include Executive as a participant in the employee qualified
stock ownership plan established by Company on October 12, 1998. Executive's
rights in shares insured by Company and contributed to that plan shall be
governed by the terms of that plan.
Section 2.03. Incapacity. If at any time during the Employment period
Executive is unable to perform fully his duties hereunder by reason of illness,
accident, or other disability (as confirmed by competent medical evidence),
during the first 6 months of such incapacity he shall be entitled to receive his
Basic Compensation, Incentive Compensation, and any stock options to which he
would be entitled under Section 2.01 and 2.02, and during any remaining period
of such incapacity (but in no event beyond the end of the Employment Period
determined without regard to any action taken by Company pursuant to Section
3.01(1), he shall be entitled to receive 50 percent of his Basic compensation,
but no Incentive Compensation or stock options. If Executive shall resume the
full performance of his duties hereunder following any period of incapacity,
Executive shall be entitled to receive his Basic Compensation and Incentive
Compensation. Notwithstanding the foregoing provisions of this Section 2.03, the
amounts payable to Executive hereunder shall be reduced by any amounts received
by Executive with respect to any such incapacity pursuant to any insurance
policy, plan, or other employee benefit provided to Executive by Company. For
the purposes of this Section 2.03, more than one occurrence of incapacity during
the Employment Period
shall be treated as a single period of incapacity regardless of any interruption
in such incapacity, except that a new and separate period of incapacity shall be
deemed to have commenced if (i) the illness, accident, or other disability
giving rise to the latest occurrence of incapacity is totally unrelated to any
prior incapacity; or (ii) notwithstanding that the illness, accident) or
disability giving rise to the latest occurrence of incapacity is related to any
prior incapacity, Executive has performed his duties hereunder for a continuous
period of at least six months since the termination of such prior incapacity.
Section 2.04. Life Insurance. After the six (6) month evaluation period,
the Company shall pay all premiums for one or more insurance policies upon the
life of Executive in an aggregate face amount of $100,000, the death benefit or
benefits to be payable to such beneficiary or beneficiaries as Executive shall
designate in writing to Company. Executive shall aid Company in procuring such
insurance, as well as in obtaining any other life, health, accident, disability,
or other insurance which Company should at any time apply for, in its own name
and at its own expense, to ensure Company's obligations hereunder, by submitting
to the usual and customary medical examinations and by completing, executing,
and delivering such applications and other instruments, in writing as may be
reasonably required by any insurance company or companies.
Section 2.05. Other Employee Benefits. After the six (6) month
evaluation period, the Company shall reimburse Executive for his reasonable
expenses in connection with (i) obtaining from time-to-time of financial
planning advise; (ii) preparation of his federal and state income tax returns;
and (iii) cost of his annual medical examination. During the Employment period
Company shall also pay the initiation fee and the annual dues and assessments
for Executive's membership in a social or business club that could be construed
to build good-will for Company. Executive shall also be entitled to participate
in all employee benefit plans and to receive all other fringe benefits as are
from time-to-time made generally available to the senior management of Company.
ARTICLE III
INCAPACITY AND TERMINATION
Section 3.01 Incapacity. In the event that during the Employment period
there should occur (i) "Total and Permanent Incapacity" (as hereinafter defined)
of Executive; (ii) substantial failure or inability (not as a consequence of an
event covered by Section 2.03) or Executive to perform his obligations hereunder
in a manner reasonably satisfactory to the Board; (iii) "Serious Misconduct" (as
hereinafter defined) of Executive; or (iv) breach by Executive of Article V,
Company (acting by resolution adopted by a majority of the directors then
members of the Board) may elect to terminate the rights and obligations of the
parties hereunder by written notice to Executive, except as otherwise provided
in this Section 3.01, in Article IV, and in Sections 2.02(D). In the event
Company exercises such election, the Employment Period shall terminate effective
with such notice, but:
1. In the case of termination pursuant to item (i) or item (ii) above,
Executive shall be entitled to receive full compensation under Sections 2.01 and
2.02 for the portion of the
Employment period through the date of such termination, plus reimbursement for
his expenses under Section 2.10;
2. In the case of termination pursuant to item (ii) above, Executive
shall be entitled to receive, in addition to the amounts specified in clause (1)
above, an amount (paid as provided in the first sentence of Section 2.01) equal
to Basic Compensation for the period between the date of such termination and
the end of the Employment Period (as in effect immediately prior to such
termination) minus all compensation earned by Executive in respect of any other
employment during such period, although Executive shall not be required to seek
such other employment (for the purpose of this clause (2), the term
"compensation" shall not include (i) Any amount which is not determinable and
vested in Executive during such period [irrespective of when payable]; (ii) the
value of any stock options or stock appreciation rights granted to Executive
during such period or (iii) any perquisite, pension, or profit sharing benefits
provided to Executive during such period pursuant to any plan generally
applicable to other senior executives); and,
3. In the case of termination pursuant to item (iii) or item, Executive
shall be entitled to receive full compensation under Section 2.01 for the
portion of the Employment period through the date of such termination and
Incentive Compensation under Section 2.02 through the end of the fiscal year
preceding the fiscal year in which such termination occurs, plus reimbursement
for his expenses under Section 2.06.
A termination by Company pursuant to item (ii) shall not constitute
evidence that Executive has breached his obligations under this Agreement.
Section 3.02. Death. In the event of the death of Executive during the
Employment Period, his Designated Successors shall be entitled to receive any
accrued and unpaid compensation under Sections 2.01 and 2.02, any reimbursed
expenses under Section 2.06.
Section 3.03. Definitions of Certain Terms. "Total and Permanent
Incapacity" shall mean such physical or mental condition of Executive as is
expected to continue indefinitely and which renders Executive incapable of
performing any substantial portion of the services contemplated hereby (as
confirmed by competent medical evidence). ("Serious Misconduct" shall mean
embezzlement or misappropriation of corporate funds, other act of dishonesty,
willful refusal to perform, or substantial regard of the significant duties
assigned pursuant to Section 1 or significant violation of Executive's duty of
loyalty to the Companies.
ARTICLE IV
CHANGE OF CONTROL
Section 4.01. Performance of Special Duties: Continuance of Employment.
Company and Executive acknowledge that if Company should receive, or should
otherwise acquire information with respect to, any proposal by, from or on
behalf of any person concerning a possible business combination with Company, or
an acquisition of all or a substantial portion of the equity securities (or
securities convertible into such equity securities) of Company, it
will be in the best interests of Company and Board that they be able to rely
upon Executive to continue as Vice President of Company, its stockholders,
employees, customers, and suppliers, without concern as to whether he might be
hindered or distracted by his personal circumstances and by the risks created to
him by any such proposal; and (ii) to perform, in addition to his regular
duties, such undertaking and assistance in the assessment of any such proposal,
and to undertake such other actions, including litigation, as the Board might
determine to be in the best interests of Company, its stockholders, employees,
customers, and suppliers. Accordingly, in the event that any person initiates a
tender or exchange offer, makes a substantial purchase of Company's equity
securities, circulates any proxy or proxy statement to the stockholders of
Company, or takes any other action for the purpose of effecting a "Change of
Control" (as hereinafter defined) of Company, Executive agrees that he will not
voluntarily leave the employ of Company, and will perform all of the services
contemplated by the first sentence of this Section 4.01, until such person
either has abandoned or terminated its efforts to effect such a Change of
Control or until such a Change of Control has occurred; Provided, however, that
nothing in this sentence shall be deemed to extend the Employment Period. If
such a Change of Control shall occur, Executive may, within one year thereafter,
elect to terminate the rights and obligations of the parties hereunder by
written notice to Company (or its successor or assign); except as otherwise
provided in the next sentence and in Section 5.03(D). In the event Executive
exercises such election, the Employment Period shall terminate effective with
such notice, but Executive shall be entitled to receive full compensation under
Sections 2.01 and 2.02 for the portion of the Employment Period through the date
of such termination, plus termination for his expenses under Section 2.06.
Section 4.02. Special Payment. In the event Executive's employment with
Company terminates for any reason, whether voluntary or involuntary (other than
as a consequence of his Total and Permanent Incapacity or death [as provided in
Sections 3.01 and 3.02] or the expiration of the Employment Period), within one
year after a Change of Control of Company, then notwithstanding the provisions
of Section 3.01, Company shall pay to Executive, on or before the last day of
his employment by Company, as compensation for services rendered hereunder, cash
(subject to any applicable payroll or other taxes required to be withheld) in an
amount equal to 2.99 times his then Basic Compensation. Company's payment
obligation under this Section 4.02 shall be unconditional; Executive shall not
be required to seek other employment or otherwise mitigate such obligation; and
any compensation received by Executive from another employer shall not reduce
the amount payable to Executive under this Section 4.02.
Section 4.03. Definition of Certain Terms. A "Change of Control", of
Company shall be deemed to have occurred if. (i) any person, including a "group"
within the meaning of Section 13(d) (e) of the Securities Exchange Act of 1934,
as amended, acquires the beneficial ownership of, and the right to vote, shares
having at least 25 percent of the aggregate voting power of the class or classes
of capital stock of Company having the ordinary and sufficient voting power (not
depending upon the happening of a contingency) to elect at least a majority of
the directors of the Board; or (ii) as the result of any tender of exchange
offer, substantial purchase of Company's equity securities, merger,
consolidation, sale of assets, or contested election, or any combination of the
foregoing transactions, the persons who were
directors of Company immediately prior to such transaction or transactions shall
not constitute a majority of the Board (or of the board of directors of any
successor to or assign of Company) immediately after the next meeting of
stockholders of Company (or such successor assign) following such transaction.
ARTICLE V
NONCOMPETITION AND PROPERTY RIGHTS OF THE PARTIES
Section 5.01. Non-Competition. Commencing from the date of the signing
of this Agreement, the Executive agrees that during the Employment period and
for a period of one year thereafter that he:
A. Shall not engage in any activities, whether as employer, proprietor,
partner, stockholder (other than the holder of less than 5 percent of the stock
of a corporation the securities of which are traded on a national securities
exchange or in the over-the-counter market), director, officer, employees, or
otherwise, in competition with (1) the businesses conducted at the date hereof
by the Companies; or (2) any business in which Companies are substantially
engage at any time during the Employment Period;
B. Shall not solicit, in competition with Companies, any person who is a
customer of the businesses conducted by Companies at the date hereof, or of any
business in which Companies are substantially engaged at any time during the
Employment Period; and
C. Shall not induce or attempt to persuade any employee of companies to
terminate his or her employment relationship in order to enter into competitive
employment.
Section 5.02. Trade Secrets: Executive shall not, at any time during the
Employment Period or thereafter, make use of any bidding information (or
computer programs thereof) of any of Companies, nor divulge any trade secrets or
other confidential information of any of Companies, except to the extent that
such information becomes a matter of public record, is published in a newspaper,
magazine, or other periodical available to the general public or as the Board
may so authorize in writing; and when Executive shall cease to be employed by
Company, Executive shall surrender to Company all records and other documents
obtained by him or entrusted to him during the course of his employment
hereunder (together with all copies thereof) which pertain specifically to any
of the businesses covered by the covenants in Section 5.01 or which were paid
for by any of Companies; provided, however, that Executive may retain copies of
such documents as necessary for Executive's personal records for federal income
tax purposes or, with the approval of the Board, for other purposes relating to
Executive's legal affairs, which approval shall not be unreasonably withheld.
Section 5.03. Scope of Covenants: Remedies: The following provisions
shall apply to the covenants of Executive contained in Section 5.01 and 5.02:
A. The covenants contained in paragraphs (A) and (B) of Section 5.01
shall apply within all the territories in which any of Companies are actively
engaged in the conduct of business during the Employment Period, including,
without limitation, the territories in which customers are then being solicited;
B. Without limiting the right of Company to pursue all other legal and
equitable remedies available for violation by Executive of the covenants
contained in Sections 5.01 and 5.02, it is expressly agreed by Executive and
Company that such other remedies cannot fully compensate Company for any such
violation and that Company shall be entitled to injunctive relief to prevent any
such violation or any continuing violation thereof;
C. Each party intends and agrees that if in any action before any court
or agency legally empowered to enforce the covenants contained in Sections 501
and 502, any term, restriction, covenant, or promise shall be deemed modified to
the extent necessary to make it enforceable by such court or agency; and,
D. The covenants contained in Sections 5.01 and 5.02 shall survive the
conclusion of Executive's employment by Company.
Section 5.04. Disclosure of Inventions and Discoveries. Executive
promises and agrees that he will promptly and fully inform the Company of and
disclose to the Company all inventions, design improvements, and discoveries
that he makes during the terms of this agreement, whether individually or
jointly in collaboration with other, which pertain or relate to the Company's
business or to any experimental work carried on by the Company, whether or not
conceived during regular working hours.
Section 5.05. Ownership of Work Product.
(A) Executive agrees that any and all intellectual properties, including but
not limited to, all ideas, contacts, themes, inventions, design
improvements, and discoveries conceived, developed, or written by
Executive, either individually or jointly in collaboration with others,
which pertain or relate the business of the Company, shall belong to and
be the sole and exclusive property of the Company.
(B) Executive further agrees to submit any dispute regarding whether any
intellectual property was conceived, developed, or written pursuant to
this agreement to a review process pursuant to the Company's rules and
policies.
(C) Executive agrees that all rights in all intellectual properties prepared
by him pursuant to this agreement and in the field of business of the
Company, including patent rights and copyrights applicable to any of the
intellectual properties described in Section 5.04 above, shall belong
exclusively to the Company, shall constitute "works made for hire," and
shall be assigned promptly by the Executive to the Company. Executive
further agrees to assist the Company in obtaining patents on all such
inventions, designs, improvements, and discoveries that are patentable
or registration on all such works of creation that are copyrightable,
and shall execute all documents and do all things
necessary to obtain patent or copyright registration, vest the Company
with full and exclusive title, and protect against infringement by
others.
(D) This Section shall not apply to intellectual properties or rights
therein derived from Executive's activities or employment prior to the
time of execution of this contract. The Company agrees that those
preexisting rights are and shall continue to be the exclusive property
of Executive and disclaims any claim of rights of any nature whatsoever
thereto.
This section shall not apply to assign to Company any of Executive's
rights in any invention that Executive develops entirely on his own time
without using Company's trade secret information, except for inventions
that relate at the time that the invention is conceived or reduced to
practice, to Company's business or to actual or demonstrably anticipate
research or development of Company.
ARTICLE VI
REIMBURSABLE EMPLOYEE EXPENSES
Section 6.01 Moving Expenses. In the event that during the term of this
agreement, Executive is transferred by the Company to a new principal place of
work at least 100 miles farther from his residence at the time of transfer
("current residence") than his principal place of work at the time of the
transfer, the Company shall reimburse Executive for all reasonable expenses
incurred for:
(D) The expenses of one round-trip, including meals and lodging, by
Executive and Executive's spouse and minor children, from the current
residence to the general location of the new principal place of work for
the principal purpose of searching for a new residence.
(E) The expenses of a one-way trip, including meals and lodging, by
Executive and Executive's spouse and minor children, from the current
residence to the new place of residence.
(F) Moving the household goods and personal effects of Executive and
executive's spouse and minor children from the current residence to the
new place of residence.
Section 6.02. Office and Equipment. During the term of this contract the
company shall furnish to Executive a suitable office, stenographic help,
postage, telephone, and the usual equipment, supplies and services needed for a
modern office to function in an efficient manner. All of the Expenses of
procurement, operation and maintenance of the items in this section are to be
paid by the Company.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Services As Officer Or Director. During the Employment
Period, Executive shall, if elected or appointed as a director of Company and as
an officer and/or director of all current and future subsidiaries or affiliates
of Company, shall serve without any additional compensation apart from that
which the position already provides.
Section 7.02. Notices. Any notice or request required or permitted to be
given hereunder shall be sufficient if in writing and delivered personally or
sent by registered mail, return receipt requested, to the addresses hereinabove
set forth, or to any such address designated by either party by notice similarly
given. Such notice shall be deemed to have been given upon the personal delivery
of such mailing thereof, as the case may be.
Section 7.03. Assignment and Succession. The rights and obligations of
Company under this Agreement shall inure to the benefit of and be binding upon
its successors and assigns, and Executive's rights and obligations hereunder
shall inure to the benefit of and be binding upon his successors, heirs,
executors, administrators, legal representatives, assigns and guardians and any
other person asserting any rights under Section 2.05.
Section 7.04. Headings. The Article, Section, paragraph, and
subparagraph headings are for convenience of reference only and shall not define
or limit the provisions hereof.
Section 7.05. Applicable Law. This Agreement shall at all times be
governed by and construed, interpreted, and enforced in accordance with the laws
of the State of Arkansas.
Section 7.06. Attorney's Fees and Costs. If any legal action is
necessary to enforce or interpret the terms of this agreement, the prevailing
parry shall be entitled to reasonable attorney's fees, costs, and necessary
disbursements in addition to any other relief to which he may be entitled. This
provision shall be construed as applicable to the entire contract.
Section 7.07. Partial Invalidity. If any provision in this agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
IN WITNESS WHEREOF, Company has caused this Agreement to be signed by its duly
authorized officer and Executive has signed this Agreement as of the day and
year first above written. THERMOENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, CEO
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Date: 9/11/01
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EXECUTIVE
By: /s/ Xxxxxxx X. XxXxxx
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Date: 9/11/01
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