EXHIBIT 10.9
EMPLOYMENT AGREEMENTS
WITH
XXXXX X. XXXXXXX
XXXXXXX XXXXX
XXXXX XXXXXXX
EMPLOYMENT AGREEMENT
WITH
XXXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT (THIS "AGREEMENT"), dated as of the 25th day of January
1999, by AND BETWEEN TRIAD COMPRESSOR, INC., A NEVADA CORPORATION (THE
"COMPANY"), and XXXXX X. XXXXXXX ("EXECUTIVE").
WHEREAS, the Company believes that Executive has unique experience and
skills that would significantly benefit the Company in the management of the
affairs of the Company; and
WHEREAS, the Company acknowledges and recognizes the value of
Executive's services and deems it necessary and desirable to retain Executive's
services for a period of three years; and
WHEREAS, both Executive and the Company desire to embody the terms and
conditions of Executive's employment in a written agreement which will supersede
all prior agreements of employment, whether written or oral.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT TERM. The Company agrees to, and does hereby employ
Executive to serve as President and Chief Executive Officer of the Company and
to perform the services as hereinafter set forth for a period of three years
commencing January 25, 1999 and ending December 31, 2001.
2. SERVICES OF EXECUTIVE. Executive agrees to devote such of his
business time (exclusive of four weeks of vacation in each calendar year) to the
business and affairs of the Company, and to use his best efforts to promote the
interests of the Company, and to carry out such duties and perform such services
as may be delegated to Executive from time to time by the board of directors of
the Company. The Company acknowledges and agrees that Executive will continue to
serve as an officer and director of any subsidiary of the Company and its
affiliates, and nothing in this Agreement shall prohibit Executive from being
directly or indirectly engaged in the oil and gas business or any other business
in any capacity with any other corporation, partnership, venture or other
entity.
3. COMPENSATION.
(a) In payment for the services set forth in paragraph 2 above, the Company
shall pay to Executive during the term hereof a salary (referred to as "BASE
SALARY") at the rate of $ 100,000 per annum, payable not less than monthly
throughout the term of this Agreement. Executive shall also be entitled to
participate in any Company plan for the benefit of any or all of its employees,
including any deferred compensation plan (such as pension, profit-sharing or
thrift plan), or group hospital, disability or life insurance plan, in
accordance with the terms of such plan.
1
(b) Base Salary of Executive may be increased annually each year during the
term of this Agreement by an amount determined by the board of directors of the
Company.
(c) In the event that installments of Base Salary are not received by
Executive when payable pursuant to this Agreement, Executive may elect at any
time after January 1, 2000 to accept shares of common stock of the Company in
payment of accrued unpaid Base Salary at a rate of $0.25 per share for 1999 Base
Salary. For the years 2000 and 2001, the Base Salary if paid in common stock,
shall be converted at 50% of the volume weighted monthly average trading value
of the Company's common stock. The number of shares of common stock of the
Company issuable to Executive hereunder as well as the amount of accrued unpaid
Base Salary to be paid by issuance of such shares shall be subject to adjustment
to reflect any stock split, stock dividend, recapitalization, merger
consolidation, reorganization, combination or exchange of shares or other
similar event. In no event shall Executive be obligated to accept shares of
common stock of the Company in payment of Base Salary.
4. EXPENSES. The Company will arrange for the payment of reasonable
expenses incurred by Executive in furtherance of or in connection with the
business of the Company, including, but not limited to, all traveling expenses
and all entertainment expenses (whether incurred at Executive's residence, while
traveling, or otherwise). If any such expenses are paid in the first instance by
Executive, the Company will arrange for his reimbursement therefor. The Company
recognizes that, in the performance of his duties, Executive may be required to
entertain various persons and representatives of organizations with whom the
Company has or would like to have business relationships. The Company will
arrange for the reimbursement of Executive upon presentation of expense vouchers
for any reasonable such expenses which are adaptable to the usual accounting
procedures established by the Company.
5. DISABILITY. If (i) Executive shall suffer any illness, disability or
incapacity so that he is unable to perform his duties hereunder and such
illness, disability or incapacity shall be deemed by a duly licensed physician
(who, subject to the reasonable approval of the board of directors, may be
Executive's personal physician) to be permanent or (ii) Executive is unable to
render full-time services to the Company of the character required hereunder for
a period of six or more months out of any trailing 12-month period by reason of
illness, disability or incapacity and the board of directors of the Company
determines that Executive has been permanently disabled, then and in either of
such events, Executive will continue to render such advisory and consultative
services as he is able, and as may be reasonably requested of him by the board
of directors of the Company and he shall receive compensation at the rate set
forth in paragraph 3(a) above for a 12-month period commencing upon the first
day of the first month following the determination that Executive's illness,
disability or incapacity is permanent. Thereafter, Executive shall receive
compensation equal to 75% of the compensation at the rate set forth in paragraph
3(a) above for a period commencing upon the expiration of such 12-month period
and ending on the expiration of the term of this Agreement in effect at the
commencement of Executive's disability. Such compensation shall be paid even if
Executive's illness, disability or incapacity prevents the rendition by him of
any services to the Company. The Company may elect to purchase disability income
insurance to cover all or part of any compensation payable hereunder and the
amount of compensation payable to Executive under this paragraph 5 shall be
reduced by the amount of loss of income coverage benefits paid to Executive
under any insurance policy maintained at the Company's expense. The board of
directors of the Company may, in its discretion, reinstate Executive to his
former status hereunder in the event that he resumes the services set forth in
paragraph 2 above.
2
6. DEATH. In the event of Executive's death during the term of this
Agreement, the Company shall pay to Executive's estate or designated beneficiary
or beneficiaries within 180 days from the date of Executive's death an amount
equal to the aggregate amount of Base Salary that would have been payable during
the lesser of the remaining term of this Agreement or a period of 12 months at
the rate in effect at the time of Executive's death. The Company may elect to
purchase, at its expense, a decreasing term life insurance policy covering the
life of Executive and payable to Executive's estate or designated beneficiary in
the amount required to be paid by, and, upon payment thereof, in satisfaction
of, the Company's obligation under this paragraph 6.
7. INSURANCE. The Company shall, during the term of Executive's
employment, provide Executive with the following insurance coverages (in
addition to any coverage pursuant to paragraphs 5 or 6 hereof) in such amounts
as the board of directors of the Company shall determine: (i) group health
insurance coverage providing benefits for major medical expenses, (ii) term life
insurance coverage payable to Executive's designated beneficiary and (iii)
disability income coverage.
8. AUTOMOBILE. The Company shall provide Executive a monthly expense
allowance in the amount of $750 to reimburse Executive for actual out-of-pocket
expenses incurred in connection with the ownership and maintenance by Executive,
at his cost, of an automobile of Executive's choice. Such monthly allowance may
be increased (but not decreased) by the board of directors of the Company to
reflect any increases in the costs associated with the ownership and maintenance
of an automobile.
9. PHYSICAL EXAM. Executive agrees to take a physical examination at
the Company's expense each year during the term of this Agreement.
10. TERMINATION OF EMPLOYMENT. Executive's employment with the Company
may be terminated prior to the expiration of the term hereof as follows:
(a) The board of directors of the Company may terminate Executive's
employment if (i) the board of directors of the Company notifies Executive in
writing that Executive is in breach or violation of this Agreement, such written
notice to set forth in detail the exact nature of such breach or violation, (ii)
Executive willfully fails or refuses to take such actions as may be reasonably
required by the board of directors of the Company to cure any breach or
violation by Executive of this Agreement and (iii) such failure or refusal shall
continue for or is not corrected within 30 days after warning from the board of
directors of the Company in such regard is given to Executive. In addition, the
board of directors of the Company may for good cause terminate Executive's
employment under this Agreement without advance notice. Termination shall not
affect any of the Company's other rights and remedies. For the purpose of this
Agreement, good cause shall be deemed to mean only the following:
3
(i) should Executive for reasons other than illness or injury absent
himself from his duties without the consent of the board of directors for
more than 20 consecutive days;
(ii) should Executive be convicted of a crime punishable by
imprisonment;
(iii) should Executive commit gross negligence or willful misconduct
in the performance of his duties hereunder, or otherwise fail to comply
with the terms and conditions of this Agreement; or
(iv) should Executive willfully engage in misconduct that is
materially injurious to the Company, or any affiliate of the Company,
monetarily or otherwise.
(b) Executive's employment with the Company shall terminate upon
Executive's death and Executive's estate or designated beneficiaries shall be
entitled to the amount as provided pursuant to paragraph 6 above and any
insurance benefits provided pursuant to paragraph 7 above.
(c) Executive may elect to terminate this Agreement upon 90 days prior
written notice thereof to the board of directors. For the purpose of this
Agreement, "constructive termination" by the Company shall be deemed to mean the
resignation by Executive of his position with the Company as a result of
Executive's good faith belief that the board of directors of the Company has
acted, or proposes to act contrary to Executive's objection, in a manner that
(i) is illegal, (ii) constitutes a breach of fiduciary duty or (iii) is contrary
to advice of counsel to the Company. A constructive termination shall be deemed
to be a termination by the Company of Executive's employment without cause.
(d) In the event that the board of directors elects to terminate this
Agreement pursuant to paragraph 10(a) above, the Company shall have no further
obligation to compensate Executive or provide any benefits hereunder effective
upon the date of termination unless Executive shall in good faith dispute such
termination and submit such dispute to arbitration pursuant to paragraph (e)
below.
(e) In the event that Executive contests any termination under paragraph
10(a) above by written notice to the board of directors setting forth in detail
Executive's reasons for objection to such termination, such matter may be
submitted by Executive to arbitration by an arbitration panel comprised of three
members of the American Association of Arbitrators, one of whom is selected by
Executive, one of whom is selected by the board of directors and one of whom is
selected by the arbitrators selected by the Executive and the board of
directors. The validity of Executive's termination shall be decided by a
majority of the votes of the arbitrators and their written decision shall be
nonappealable. Any such arbitration shall take place in Dallas, Texas. Costs
will be borne by the party against whom the decision is rendered.
4
11. DISCLOSURE OF INFORMATION. Executive hereby acknowledges that he
will have access to certain trade secrets and confidential information of the
Company and of affiliates of the Company and that such information constitutes
valuable, special and unique property of the Company and such affiliates.
Executive shall not, during or after the term of his employment hereunder,
disclose any such trade secrets or confidential information to any person or
entity for any reason or purpose whatsoever except to the extent that such
information becomes publicly disclosed (other than as a result of a breach of
this Agreement by Executive) or to the extent required by law. Executive further
agrees that unless otherwise agreed by the board of directors of the Company,
any intellectual property developed by Executive in the course of his employment
with the Company shall be developed on behalf of, and for the ownership of, the
Company.
12. ACTIONS OF BOARD; AFFILIATES. For the purpose of this Agreement,
all actions or consents required or permitted to be taken or given by the board
of directors of the Company with respect to this Agreement shall be to refer to
an action or consent approved by a majority of the board of directors of the
Company other than Executive and including at least two directors who are not
employees of the Company.
13. CONSOLIDATION OR MERGER. Other than a transaction with affiliates
of the Company not resulting in a change of control of the Company, in the event
of any consolidation or merger of the Company into or with another corporation,
partnership or other entity, or the sale of all or substantially all of the
assets of the Company during the term of this Agreement or any renewal thereof,
Executive may, in his sole and absolute discretion, elect to (i) terminate this
Agreement without fault, or (ii) continue his employment pursuant to the terms
hereof in which case such corporation, partnership or other entity shall assume
this Agreement and become obligated to perform all of the terms and conditions
hereof, and Executive's obligations hereunder shall continue in favor of such
corporation, partnership or other entity.
14. NOTICE. Any consent, notice, warning or other communication
("Notice") to be given hereunder shall be in writing and shall be deemed to have
been properly given when mailed by first class U.S. Mail, when sent by prepaid
telegram, or when delivered in person, addressed or delivered in each case to
the address set forth across from each party's signature below, or to such other
address as either of the parties shall designate to the other in the manner
provided for giving notice.
15. NATURE OF AGREEMENT. No right, title, interest or benefit hereunder
shall ever be liable for or charged with any of the torts or obligations of
Executive or of any person claiming under Executive, or subject to seizure by
any creditor of Executive or any person claiming under Executive. Neither
Executive nor any person claiming under Executive shall have the power to
anticipate or dispose of any right, title, interest or benefit hereunder in any
manner until the same shall have been actually distributed to him free and clear
of the terms of this Agreement.
5
16. BINDING EFFECT. Subject to the provisions of paragraph 13 above,
this Agreement shall be binding upon and inure to the benefit of any successor
to the Company and all persons lawfully claiming under Executive. This Agreement
cannot be assigned by Executive.
17. ENTIRE AGREEMENT. The parties hereto agree that this document
contains the entire understanding and agreement between them with respect to the
matters set forth herein and cannot be amended, modified or supplemented in any
respect except by an agreement in writing signed by the party against whom
enforcement of any amendment, modification or supplement is sought.
18. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder or of the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall continue in full
force and effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its executive officer duly authorized, and Executive has executed
this Agreement, all effective as of the date first above written.
Address: TRIAD COMPRESSOR, INC.
By:____________________________
Name:__________________________
------------------------------------ Title:_________________________
------------------------------------
Address: EXECUTIVE
------------------------------------ _______________________________
------------------------------------ Xxxxx X. XxXxxxx
6
EMPLOYMENT AGREEMENT
WITH
XXXXXXX XXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT (THIS "AGREEMENT"), dated as of the 25th day of January
1999, by AND BETWEEN TRIAD COMPRESSOR, INC., A NEVADA CORPORATION (THE
"COMPANY"), and XXXXXXX X. XXXXX ("EXECUTIVE").
WHEREAS, the Company believes that Executive has unique experience and
skills that would significantly benefit the Company in the management of the
affairs of the Company; and
WHEREAS, the Company acknowledges and recognizes the value of
Executive's services and deems it necessary and desirable to retain Executive's
services for a period of three years; and
WHEREAS, both Executive and the Company desire to embody the terms and
conditions of Executive's employment in a written agreement which will supersede
all prior agreements of employment, whether written or oral.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT TERM. The Company agrees to, and does hereby employ
Executive to serve as Vice President--Research and Development of the Company
and to perform the services as hereinafter set forth for a period of three years
commencing January 25, 1999 and ending December 31, 2001.
2. SERVICES OF EXECUTIVE. Executive agrees to devote such of his
business time (exclusive of four weeks of vacation in each calendar year) to the
business and affairs of the Company, and to use his best efforts to promote the
interests of the Company, and to carry out such duties and perform such services
as may be delegated to Executive from time to time by the board of directors of
the Company. The Company acknowledges and agrees that Executive will continue to
serve as an officer and director of any subsidiary of the Company and its
affiliates, and nothing in this Agreement shall prohibit Executive from being
directly or indirectly engaged in the oil and gas business or any other business
in any capacity with any other corporation, partnership, venture or other
entity.
3. COMPENSATION.
(a) In payment for the services set forth in paragraph 2 above, the Company
shall pay to Executive during the term hereof a salary (referred to as "BASE
SALARY") at the rate of $ 100,000 per annum, payable not less than monthly
throughout the term of this Agreement. Executive shall also be entitled to
participate in any Company plan for the benefit of any or all of its employees,
including any deferred compensation plan (such as pension, profit-sharing or
thrift plan), or group hospital, disability or life insurance plan, in
accordance with the terms of such plan.
1
(b) Base Salary of Executive may be increased annually each year during the
term of this Agreement by an amount determined by the board of directors of the
Company.
(c) In the event that installments of Base Salary are not received by
Executive when payable pursuant to this Agreement, Executive may elect at any
time after January 1, 2000 to accept shares of common stock of the Company in
payment of accrued unpaid Base Salary at a rate of $0.25 per share for 1999 Base
Salary. For the years 2000 and 2001, the Base Salary if paid in common stock,
shall be converted at 50% of the volume weighted monthly average trading value
of the Company's common stock. The number of shares of common stock of the
Company issuable to Executive hereunder as well as the amount of accrued unpaid
Base Salary to be paid by issuance of such shares shall be subject to adjustment
to reflect any stock split, stock dividend, recapitalization, merger
consolidation, reorganization, combination or exchange of shares or other
similar event. In no event shall Executive be obligated to accept shares of
common stock of the Company in payment of Base Salary.
4. EXPENSES. The Company will arrange for the payment of reasonable
expenses incurred by Executive in furtherance of or in connection with the
business of the Company, including, but not limited to, all traveling expenses
and all entertainment expenses (whether incurred at Executive's residence, while
traveling, or otherwise). If any such expenses are paid in the first instance by
Executive, the Company will arrange for his reimbursement therefor. The Company
recognizes that, in the performance of his duties, Executive may be required to
entertain various persons and representatives of organizations with whom the
Company has or would like to have business relationships. The Company will
arrange for the reimbursement of Executive upon presentation of expense vouchers
for any reasonable such expenses which are adaptable to the usual accounting
procedures established by the Company.
5. DISABILITY. If (i) Executive shall suffer any illness, disability or
incapacity so that he is unable to perform his duties hereunder and such
illness, disability or incapacity shall be deemed by a duly licensed physician
(who, subject to the reasonable approval of the board of directors, may be
Executive's personal physician) to be permanent or (ii) Executive is unable to
render full-time services to the Company of the character required hereunder for
a period of six or more months out of any trailing 12-month period by reason of
illness, disability or incapacity and the board of directors of the Company
determines that Executive has been permanently disabled, then and in either of
such events, Executive will continue to render such advisory and consultative
services as he is able, and as may be reasonably requested of him by the board
of directors of the Company and he shall receive compensation at the rate set
forth in paragraph 3(a) above for a 12-month period commencing upon the first
day of the first month following the determination that Executive's illness,
disability or incapacity is permanent. Thereafter, Executive shall receive
compensation equal to 75% of the compensation at the rate set forth in paragraph
3(a) above for a period commencing upon the expiration of such 12-month period
and ending on the expiration of the term of this Agreement in effect at the
commencement of Executive's disability. Such compensation shall be paid even if
Executive's illness, disability or incapacity prevents the rendition by him of
any services to the Company. The Company may elect to purchase disability income
insurance to cover all or part of any compensation payable hereunder and the
amount of compensation payable to Executive under this paragraph 5 shall be
reduced by the amount of loss of income coverage benefits paid to Executive
under any insurance policy maintained at the Company's expense. The board of
directors of the Company may, in its discretion, reinstate Executive to his
former status hereunder in the event that he resumes the services set forth in
paragraph 2 above.
2
6. DEATH. In the event of Executive's death during the term of this
Agreement, the Company shall pay to Executive's estate or designated beneficiary
or beneficiaries within 180 days from the date of Executive's death an amount
equal to the aggregate amount of Base Salary that would have been payable during
the lesser of the remaining term of this Agreement or a period of 12 months at
the rate in effect at the time of Executive's death. The Company may elect to
purchase, at its expense, a decreasing term life insurance policy covering the
life of Executive and payable to Executive's estate or designated beneficiary in
the amount required to be paid by, and, upon payment thereof, in satisfaction
of, the Company's obligation under this paragraph 6.
7. INSURANCE. The Company shall, during the term of Executive's
employment, provide Executive with the following insurance coverages (in
addition to any coverage pursuant to paragraphs 5 or 6 hereof) in such amounts
as the board of directors of the Company shall determine: (i) group health
insurance coverage providing benefits for major medical expenses, (ii) term life
insurance coverage payable to Executive's designated beneficiary and (iii)
disability income coverage.
8. AUTOMOBILE. The Company shall provide Executive a monthly expense
allowance in the amount of $750 to reimburse Executive for actual out-of-pocket
expenses incurred in connection with the ownership and maintenance by Executive,
at his cost, of an automobile of Executive's choice. Such monthly allowance may
be increased (but not decreased) by the board of directors of the Company to
reflect any increases in the costs associated with the ownership and maintenance
of an automobile.
9. PHYSICAL EXAM. Executive agrees to take a physical examination at
the Company's expense each year during the term of this Agreement.
10. TERMINATION OF EMPLOYMENT. Executive's employment with the Company
may be terminated prior to the expiration of the term hereof as follows:
(a) The board of directors of the Company may terminate Executive's
employment if (i) the board of directors of the Company notifies Executive in
writing that Executive is in breach or violation of this Agreement, such written
notice to set forth in detail the exact nature of such breach or violation, (ii)
Executive willfully fails or refuses to take such actions as may be reasonably
required by the board of directors of the Company to cure any breach or
violation by Executive of this Agreement and (iii) such failure or refusal shall
continue for or is not corrected within 30 days after warning from the board of
directors of the Company in such regard is given to Executive. In addition, the
board of directors of the Company may for good cause terminate Executive's
employment under this Agreement without advance notice. Termination shall not
affect any of the Company's other rights and remedies. For the purpose of this
Agreement, good cause shall be deemed to mean only the following:
3
(i) should Executive for reasons other than illness or injury absent
himself from his duties without the consent of the board of directors for
more than 20 consecutive days;
(ii) should Executive be convicted of a crime punishable by
imprisonment;
(iii) should Executive commit gross negligence or willful misconduct
in the performance of his duties hereunder, or otherwise fail to comply
with the terms and conditions of this Agreement; or
(iv) should Executive willfully engage in misconduct that is
materially injurious to the Company, or any affiliate of the Company,
monetarily or otherwise.
(b) Executive's employment with the Company shall terminate upon
Executive's death and Executive's estate or designated beneficiaries shall be
entitled to the amount as provided pursuant to paragraph 6 above and any
insurance benefits provided pursuant to paragraph 7 above.
(c) Executive may elect to terminate this Agreement upon 90 days prior
written notice thereof to the board of directors. For the purpose of this
Agreement, "constructive termination" by the Company shall be deemed to mean the
resignation by Executive of his position with the Company as a result of
Executive's good faith belief that the board of directors of the Company has
acted, or proposes to act contrary to Executive's objection, in a manner that
(i) is illegal, (ii) constitutes a breach of fiduciary duty or (iii) is contrary
to advice of counsel to the Company. A constructive termination shall be deemed
to be a termination by the Company of Executive's employment without cause.
(d) In the event that the board of directors elects to terminate this
Agreement pursuant to paragraph 10(a) above, the Company shall have no further
obligation to compensate Executive or provide any benefits hereunder effective
upon the date of termination unless Executive shall in good faith dispute such
termination and submit such dispute to arbitration pursuant to paragraph (e)
below.
(e) In the event that Executive contests any termination under paragraph
10(a) above by written notice to the board of directors setting forth in detail
Executive's reasons for objection to such termination, such matter may be
submitted by Executive to arbitration by an arbitration panel comprised of three
members of the American Association of Arbitrators, one of whom is selected by
Executive, one of whom is selected by the board of directors and one of whom is
selected by the arbitrators selected by the Executive and the board of
directors. The validity of Executive's termination shall be decided by a
majority of the votes of the arbitrators and their written decision shall be
nonappealable. Any such arbitration shall take place in Dallas, Texas. Costs
will be borne by the party against whom the decision is rendered.
4
11. DISCLOSURE OF INFORMATION. Executive hereby acknowledges that he
will have access to certain trade secrets and confidential information of the
Company and of affiliates of the Company and that such information constitutes
valuable, special and unique property of the Company and such affiliates.
Executive shall not, during or after the term of his employment hereunder,
disclose any such trade secrets or confidential information to any person or
entity for any reason or purpose whatsoever except to the extent that such
information becomes publicly disclosed (other than as a result of a breach of
this Agreement by Executive) or to the extent required by law. Executive further
agrees that unless otherwise agreed by the board of directors of the Company,
any intellectual property developed by Executive in the course of his employment
with the Company shall be developed on behalf of, and for the ownership of, the
Company.
12. ACTIONS OF BOARD; AFFILIATES. For the purpose of this Agreement,
all actions or consents required or permitted to be taken or given by the board
of directors of the Company with respect to this Agreement shall be to refer to
an action or consent approved by a majority of the board of directors of the
Company other than Executive and including at least two directors who are not
employees of the Company.
13. CONSOLIDATION OR MERGER. Other than a transaction with affiliates
of the Company not resulting in a change of control of the Company, in the event
of any consolidation or merger of the Company into or with another corporation,
partnership or other entity, or the sale of all or substantially all of the
assets of the Company during the term of this Agreement or any renewal thereof,
Executive may, in his sole and absolute discretion, elect to (i) terminate this
Agreement without fault, or (ii) continue his employment pursuant to the terms
hereof in which case such corporation, partnership or other entity shall assume
this Agreement and become obligated to perform all of the terms and conditions
hereof, and Executive's obligations hereunder shall continue in favor of such
corporation, partnership or other entity.
14. NOTICE. Any consent, notice, warning or other communication
("Notice") to be given hereunder shall be in writing and shall be deemed to have
been properly given when mailed by first class U.S. Mail, when sent by prepaid
telegram, or when delivered in person, addressed or delivered in each case to
the address set forth across from each party's signature below, or to such other
address as either of the parties shall designate to the other in the manner
provided for giving notice.
15. NATURE OF AGREEMENT. No right, title, interest or benefit hereunder
shall ever be liable for or charged with any of the torts or obligations of
Executive or of any person claiming under Executive, or subject to seizure by
any creditor of Executive or any person claiming under Executive. Neither
Executive nor any person claiming under Executive shall have the power to
anticipate or dispose of any right, title, interest or benefit hereunder in any
manner until the same shall have been actually distributed to him free and clear
of the terms of this Agreement.
5
16. BINDING EFFECT. Subject to the provisions of paragraph 13 above,
this Agreement shall be binding upon and inure to the benefit of any successor
to the Company and all persons lawfully claiming under Executive. This Agreement
cannot be assigned by Executive.
17. ENTIRE AGREEMENT. The parties hereto agree that this document
contains the entire understanding and agreement between them with respect to the
matters set forth herein and cannot be amended, modified or supplemented in any
respect except by an agreement in writing signed by the party against whom
enforcement of any amendment, modification or supplement is sought.
18. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder or of the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall continue in full
force and effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its executive officer duly authorized, and Executive has executed
this Agreement, all effective as of the date first above written.
Address: TRIAD COMPRESSOR, INC.
By:______________________________
Name:____________________________
------------------------------------ Title:___________________________
------------------------------------
Address: EXECUTIVE
------------------------------------ ________________________________
------------------------------------ Xxxxxxx X. Xxxxx
6
EMPLOYMENT AGREEMENT
WITH
XXXXX XXXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT (THIS "AGREEMENT"), dated as of the 25th day of January
1999, by AND BETWEEN TRIAD COMPRESSOR, INC., A NEVADA CORPORATION (THE
"COMPANY"), and XXXXX XXXXXXX ("EXECUTIVE").
WHEREAS, the Company believes that Executive has unique experience and
skills that would significantly benefit the Company in the management of the
affairs of the Company; and
WHEREAS, the Company acknowledges and recognizes the value of
Executive's services and deems it necessary and desirable to retain Executive's
services for a period of three years; and
WHEREAS, both Executive and the Company desire to embody the terms and
conditions of Executive's employment in a written agreement which will supersede
all prior agreements of employment, whether written or oral.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT TERM. The Company agrees to, and does hereby employ
Executive to serve as Chief Financial Officer and Treasurer of the Company and
to perform the services as hereinafter set forth for a period of three years
commencing January 25, 1999 and ending December 31, 2001.
2. SERVICES OF EXECUTIVE. Executive agrees to devote such of his
business time (exclusive of four weeks of vacation in each calendar year) to the
business and affairs of the Company, and to use his best efforts to promote the
interests of the Company, and to carry out such duties and perform such services
as may be delegated to Executive from time to time by the board of directors of
the Company. The Company acknowledges and agrees that Executive will continue to
serve as an officer and director of any subsidiary of the Company and its
affiliates, and nothing in this Agreement shall prohibit Executive from being
directly or indirectly engaged in the oil and gas business or any other business
in any capacity with any other corporation, partnership, venture or other
entity.
3. COMPENSATION.
(a) In payment for the services set forth in paragraph 2 above, the Company
shall pay to Executive during the term hereof a salary (referred to as "BASE
SALARY") at the rate of $ 50,000 for the first year and $100,000 per annum
thereafter, payable not less than monthly throughout the term of this Agreement.
Executive shall also be entitled to participate in any Company plan for the
benefit of any or all of its employees, including any deferred compensation plan
(such as pension, profit-sharing or thrift plan), or group hospital, disability
or life insurance plan, in accordance with the terms of such plan.
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(b) Base Salary of Executive may be increased annually each year during the
term of this Agreement by an amount determined by the board of directors of the
Company.
(c) In the event that installments of Base Salary are not received by
Executive when payable pursuant to this Agreement, Executive may elect at any
time after January 1, 2000 to accept shares of common stock of the Company in
payment of accrued unpaid Base Salary at a rate of $0.25 per share for 1999 Base
Salary. For the years 2000 and 2001, the Base Salary if paid in common stock,
shall be converted at 50% of the volume weighted monthly average trading value
of the Company's common stock. The number of shares of common stock of the
Company issuable to Executive hereunder as well as the amount of accrued unpaid
Base Salary to be paid by issuance of such shares shall be subject to adjustment
to reflect any stock split, stock dividend, recapitalization, merger
consolidation, reorganization, combination or exchange of shares or other
similar event. In no event shall Executive be obligated to accept shares of
common stock of the Company in payment of Base Salary.
4. EXPENSES. The Company will arrange for the payment of reasonable
expenses incurred by Executive in furtherance of or in connection with the
business of the Company, including, but not limited to, all traveling expenses
and all entertainment expenses (whether incurred at Executive's residence, while
traveling, or otherwise). If any such expenses are paid in the first instance by
Executive, the Company will arrange for his reimbursement therefor. The Company
recognizes that, in the performance of his duties, Executive may be required to
entertain various persons and representatives of organizations with whom the
Company has or would like to have business relationships. The Company will
arrange for the reimbursement of Executive upon presentation of expense vouchers
for any reasonable such expenses which are adaptable to the usual accounting
procedures established by the Company.
5. DISABILITY. If (i) Executive shall suffer any illness, disability or
incapacity so that he is unable to perform his duties hereunder and such
illness, disability or incapacity shall be deemed by a duly licensed physician
(who, subject to the reasonable approval of the board of directors, may be
Executive's personal physician) to be permanent or (ii) Executive is unable to
render full-time services to the Company of the character required hereunder for
a period of six or more months out of any trailing 12-month period by reason of
illness, disability or incapacity and the board of directors of the Company
determines that Executive has been permanently disabled, then and in either of
such events, Executive will continue to render such advisory and consultative
services as he is able, and as may be reasonably requested of him by the board
of directors of the Company and he shall receive compensation at the rate set
forth in paragraph 3(a) above for a 12-month period commencing upon the first
day of the first month following the determination that Executive's illness,
disability or incapacity is permanent. Thereafter, Executive shall receive
compensation equal to 75% of the compensation at the rate set forth in paragraph
3(a) above for a period commencing upon the expiration of such 12-month period
and ending on the expiration of the term of this Agreement in effect at the
commencement of Executive's disability. Such compensation shall be paid even if
Executive's illness, disability or incapacity prevents the rendition by him of
any services to the Company. The Company may elect to purchase disability income
insurance to cover all or part of any compensation payable hereunder and the
amount of compensation payable to Executive under this paragraph 5 shall be
reduced by the amount of loss of income coverage benefits paid to Executive
under any insurance policy maintained at the Company's expense. The board of
directors of the Company may, in its discretion, reinstate Executive to his
former status hereunder in the event that he resumes the services set forth in
paragraph 2 above.
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6. DEATH. In the event of Executive's death during the term of this
Agreement, the Company shall pay to Executive's estate or designated beneficiary
or beneficiaries within 180 days from the date of Executive's death an amount
equal to the aggregate amount of Base Salary that would have been payable during
the lesser of the remaining term of this Agreement or a period of 12 months at
the rate in effect at the time of Executive's death. The Company may elect to
purchase, at its expense, a decreasing term life insurance policy covering the
life of Executive and payable to Executive's estate or designated beneficiary in
the amount required to be paid by, and, upon payment thereof, in satisfaction
of, the Company's obligation under this paragraph 6.
7. INSURANCE. The Company shall, during the term of Executive's
employment, provide Executive with the following insurance coverages (in
addition to any coverage pursuant to paragraphs 5 or 6 hereof) in such amounts
as the board of directors of the Company shall determine: (i) group health
insurance coverage providing benefits for major medical expenses, (ii) term life
insurance coverage payable to Executive's designated beneficiary and (iii)
disability income coverage.
8. AUTOMOBILE. The Company shall provide Executive a monthly expense
allowance in the amount of $750 to reimburse Executive for actual out-of-pocket
expenses incurred in connection with the ownership and maintenance by Executive,
at his cost, of an automobile of Executive's choice. Such monthly allowance may
be increased (but not decreased) by the board of directors of the Company to
reflect any increases in the costs associated with the ownership and maintenance
of an automobile.
9. PHYSICAL EXAM. Executive agrees to take a physical examination at
the Company's expense each year during the term of this Agreement.
10. TERMINATION OF EMPLOYMENT. Executive's employment with the Company
may be terminated prior to the expiration of the term hereof as follows:
(a) The board of directors of the Company may terminate Executive's
employment if (i) the board of directors of the Company notifies Executive in
writing that Executive is in breach or violation of this Agreement, such written
notice to set forth in detail the exact nature of such breach or violation, (ii)
Executive willfully fails or refuses to take such actions as may be reasonably
required by the board of directors of the Company to cure any breach or
violation by Executive of this Agreement and (iii) such failure or refusal shall
continue for or is not corrected within 30 days after warning from the board of
directors of the Company in such regard is given to Executive. In addition, the
board of directors of the Company may for good cause terminate Executive's
employment under this Agreement without advance notice. Termination shall not
affect any of the Company's other rights and remedies. For the purpose of this
Agreement, good cause shall be deemed to mean only the following:
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(i) should Executive for reasons other than illness or injury absent
himself from his duties without the consent of the board of directors for
more than 20 consecutive days;
(ii) should Executive be convicted of a crime punishable by
imprisonment;
(iii) should Executive commit gross negligence or willful misconduct
in the performance of his duties hereunder, or otherwise fail to comply
with the terms and conditions of this Agreement; or
(iv) should Executive willfully engage in misconduct that is
materially injurious to the Company, or any affiliate of the Company,
monetarily or otherwise.
(b)Executive's employment with the Company shall terminate upon Executive's
death and Executive's estate or designated beneficiaries shall be entitled to
the amount as provided pursuant to paragraph 6 above and any insurance benefits
provided pursuant to paragraph 7 above.
(c) Executive may elect to terminate this Agreement upon 90 days prior
written notice thereof to the board of directors. For the purpose of this
Agreement, "constructive termination" by the Company shall be deemed to mean the
resignation by Executive of his position with the Company as a result of
Executive's good faith belief that the board of directors of the Company has
acted, or proposes to act contrary to Executive's objection, in a manner that
(i) is illegal, (ii) constitutes a breach of fiduciary duty or (iii) is contrary
to advice of counsel to the Company. A constructive termination shall be deemed
to be a termination by the Company of Executive's employment without cause.
(d) In the event that the board of directors elects to terminate this
Agreement pursuant to paragraph 10(a) above, the Company shall have no further
obligation to compensate Executive or provide any benefits hereunder effective
upon the date of termination unless Executive shall in good faith dispute such
termination and submit such dispute to arbitration pursuant to paragraph (e)
below.
(e) In the event that Executive contests any termination under paragraph
10(a) above by written notice to the board of directors setting forth in detail
Executive's reasons for objection to such termination, such matter may be
submitted by Executive to arbitration by an arbitration panel comprised of three
members of the American Association of Arbitrators, one of whom is selected by
Executive, one of whom is selected by the board of directors and one of whom is
selected by the arbitrators selected by the Executive and the board of
directors. The validity of Executive's termination shall be decided by a
majority of the votes of the arbitrators and their written decision shall be
nonappealable. Any such arbitration shall take place in Dallas, Texas. Costs
will be borne by the party against whom the decision is rendered.
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11. DISCLOSURE OF INFORMATION. Executive hereby acknowledges that he
will have access to certain trade secrets and confidential information of the
Company and of affiliates of the Company and that such information constitutes
valuable, special and unique property of the Company and such affiliates.
Executive shall not, during or after the term of his employment hereunder,
disclose any such trade secrets or confidential information to any person or
entity for any reason or purpose whatsoever except to the extent that such
information becomes publicly disclosed (other than as a result of a breach of
this Agreement by Executive) or to the extent required by law. Executive further
agrees that unless otherwise agreed by the board of directors of the Company,
any intellectual property developed by Executive in the course of his employment
with the Company shall be developed on behalf of, and for the ownership of, the
Company.
12. ACTIONS OF BOARD; AFFILIATES. For the purpose of this Agreement,
all actions or consents required or permitted to be taken or given by the board
of directors of the Company with respect to this Agreement shall be to refer to
an action or consent approved by a majority of the board of directors of the
Company other than Executive and including at least two directors who are not
employees of the Company.
13. CONSOLIDATION OR MERGER. Other than a transaction with affiliates
of the Company not resulting in a change of control of the Company, in the event
of any consolidation or merger of the Company into or with another corporation,
partnership or other entity, or the sale of all or substantially all of the
assets of the Company during the term of this Agreement or any renewal thereof,
Executive may, in his sole and absolute discretion, elect to (i) terminate this
Agreement without fault, or (ii) continue his employment pursuant to the terms
hereof in which case such corporation, partnership or other entity shall assume
this Agreement and become obligated to perform all of the terms and conditions
hereof, and Executive's obligations hereunder shall continue in favor of such
corporation, partnership or other entity.
14. NOTICE. Any consent, notice, warning or other communication
("Notice") to be given hereunder shall be in writing and shall be deemed to have
been properly given when mailed by first class U.S. Mail, when sent by prepaid
telegram, or when delivered in person, addressed or delivered in each case to
the address set forth across from each party's signature below, or to such other
address as either of the parties shall designate to the other in the manner
provided for giving notice.
15. NATURE OF AGREEMENT. No right, title, interest or benefit hereunder
shall ever be liable for or charged with any of the torts or obligations of
Executive or of any person claiming under Executive, or subject to seizure by
any creditor of Executive or any person claiming under Executive. Neither
Executive nor any person claiming under Executive shall have the power to
anticipate or dispose of any right, title, interest or benefit hereunder in any
manner until the same shall have been actually distributed to him free and clear
of the terms of this Agreement.
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16. BINDING EFFECT. Subject to the provisions of paragraph 13 above,
this Agreement shall be binding upon and inure to the benefit of any successor
to the Company and all persons lawfully claiming under Executive. This Agreement
cannot be assigned by Executive.
17. ENTIRE AGREEMENT. The parties hereto agree that this document
contains the entire understanding and agreement between them with respect to the
matters set forth herein and cannot be amended, modified or supplemented in any
respect except by an agreement in writing signed by the party against whom
enforcement of any amendment, modification or supplement is sought.
18. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder or of the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall continue in full
force and effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its executive officer duly authorized, and Executive has executed
this Agreement, all effective as of the date first above written.
Address: TRIAD COMPRESSOR, INC.
By:_______________________________
Name:_____________________________
------------------------------------ Title:____________________________
------------------------------------
Address: EXECUTIVE
------------------------------------ __________________________________
------------------------------------ Xxxxx Xxxxxxx
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