1
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the 1st day of November, 1992,
is by and between Hydro Environmental Services Limited Partnership, a Delaware
limited partnership ("Employer"), and Xxxxx Xxxxx ("Employee").
WHEREAS, Employer desires to continue to employ Employee in Employer's
business (the "Business"; and
WHEREAS, Employer desires to continue such employment with Employer;
NOW THEREFORE, in consideration of the premises, the full and faithful
performance of the respective agreements herein contained, and the discharge of
the respective obligations herein imposed, the parties mutually covenant and
agree that in lieu of all prior agreements between the parties relating
thereto, Employer will continue such employment and enter into certain
covenants for the protection of trade secrets and confidential information of
Employer, all upon the terms and conditions hereinafter set forth:
1. Term. Subject to the provisions for termination hereinafter
set forth, the term of this Agreement shall be for the period from November 1,
1992 through October 31, 1993 (the "Term"), unless earlier terminated by
Employee's death or disability. This Agreement shall be renewed automatically
on a year to year basis upon expiration of the Term or any renewal Term hereof,
on the conditions herein set forth, unless either party gives notice under
paragraph 10 to the other party, within thirty (30) days prior to expiration of
any term, of such party's election not to so renew this Agreement.
2. Duties. Employee shall have those duties and responsibilities
which are assigned to him during the Term. Employee agrees to perform
faithfully the duties assigned to him to the best of his ability.
The Employee agrees to provide his best advice, information, judgment
and knowledge with respect to the Business, and Employee warrants that he is
free to enter into the terms of this Agreement, that he has no obligations
inconsistent herewith, and that he will devote his full time and best efforts
to the Business.
Employee shall serve Employer loyally, diligently and effectively, and
shall at all times exert his best efforts to promote the success of the
Business' activities as hereinabove stated. Employee shall devote all his time,
energy and ability to the interests of Employer and to the discharge of his
duties and responsibilities in an efficient, trustworthy and businesslike
manner. He shall do nothing which will in any way impair or prejudice the name
or reputation of Employer.
2
3. Compensation. Subject to the performance by Employee of the
foregoing duties, Employer agrees to compensate Employee during the Term at the
rate of $72,000 per annum, payable in accordance with the payroll policy of
Employer, but not less than once a month. Employer may from time to time change
the amount of such compensation; provided, however, that Employee's
compensation may not be reduced without his written consent. In addition,
Employee may be paid bonuses in such amounts, at such times and on such basis
as Employer may from time to time, in its absolute discretion, determine.
As authorized from time to time by either the Chief Executive Officer
or the President of Employer, Employee may incur reasonable expenses in
furtherance of the Business of Employer, including, without limitation,
expenses for entertainment, travel and similar items. Employer will reimburse
Employee for all such expenses upon presentation by Employee of an itemized
account together with supporting receipts for such expenditures in accordance
with the rules, practices, and policies established from time to time by
Employer.
4. Employee Covenants. At all times during the Term, and
thereafter, Employee agrees as provided below:
(a) Employee understands that Employer's business
interests require a confidential relationship between Employer and its
employees, the protection and confidential treatment of its employees,
of its inventions, trade secrets, know-how, programs and other
knowledge of its business, including the Business (hereinafter
collectively termed "Information") whether or not conceived or learned
by its employees in the course of their employment. Accordingly,
Employee shall keep confidential and treat confidentially all
Information, whether patentable, patented, or not, and shall not use
or aid others in using the Information in competition with Employer,
this obligation to exist both during and after termination of
Employee's employment by Employer pursuant to this Agreement and for
so long as any Information remains legally protectable as to persons
receiving it in a confidential relationship.
(b) Employee will disclose to Employer every significant
item of Information relating to Employer's interests and will disclose
in writing every invention while under the employ of Employer and
which reasonably relates to the Business.
(c) Upon Employer's request, either during or after
termination of his employment, but without expense to him, Employee
will execute any and all patent applications, assignments, and other
legal instruments that Employer shall deem necessary for the
protection of the Information; he will render aid and assistance in
all proceedings pertaining to
-2-
3
such property, and will, in general, cooperate with all lawful efforts
by Employer to protect the Information.
(d) Upon termination of employment, or from time to time
during the Term as Employer may request, Employee will surrender to
Employer all papers, documents, writings, illustrations, models and
other property produced thereby or coming into his possession by or
through his employment with Employer and Employee agrees that all such
materials are at all times Employer's property.
(e) Employee acknowledges and affirms that Employer at its
expense has provided to the Employee unique and specialized training.
The Employee further acknowledges that such training was provided to
Employee at Employer's expense to enhance Employee's knowledge of and
contacts in the petrochemical and refining industries.
(f) During the Term and for an additional period of one
year (two years if the Employee voluntarily terminates his Employment
with Employer) immediately following the term of Employment (the
"Restriction Period"), Employee shall not, directly or indirectly, (i)
induce any employee of Employer to terminate his employment with
Employer, (ii) hire any such employee, (iii) call upon or solicit,
with the intent to divert or take away, or divert or take away any
clients, customers, or accounts of Employer or otherwise interfere or
compete with Employer in connection with such clients, customers, and
accounts, or (iv) in his own behalf or as a partner, officer,
director, employee, agent, consultant or stockholder (other than as a
holder of less than 1% of the outstanding capital stock of any
corporation with a class of equity securities registered under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended)
engage in, invest in, or render services to any person or entity
engaged in the businesses in which Employer is then engaged, in any
county or parish of any state of the United States in which Employer
or any of its subsidiaries or affiliates conducts such business. The
parties intend that the covenants contained in this section 4(f) shall
be deemed to be a series of separate covenants, one for each county or
parish in each state of the United States and, except for geographic
coverage, each such separate covenant shall be identical in terms to
the covenant contained in this section 4(f). If, in any judicial
proceeding, the court shall refuse to enforce all of the separate
covenants contained in this section 4(f) because the time limit is too
long, it is expressly understood and agreed between the parties hereto
that for the purposes of such proceeding such time limitation shall be
deemed reduced to the extent necessary to permit enforcement of such
covenants. If, in any judicial proceeding, the court shall refuse to
enforce all of the separate covenants contained in
-3-
4
this section 4(f) because they are more extensive (whether as to
geographic area, scope of business or otherwise) than necessary to
protect the business and goodwill of Employer or any of its
subsidiaries or affiliates, it is expressly understood and agreed
between the parties hereto that for purposes of such proceeding the
geographic area, scope of business or other aspect shall be deemed
reduced to the extent necessary to permit enforcement of such
covenants.
(g) Employee acknowledges that, in view of the nature of
the business in which the Employer is engaged, the restrictions
contained in this paragraph 4, (the "Restrictions") are reasonable and
necessary in order to protect the legitimate interests of the
Employer, and that any violation thereof would result in irreparable
injuries to the Employer, and Employee therefore further acknowledges
that, in the event Employee violates, or threatens to violate, any of
such Restrictions, the Employer shall be entitled to obtain from any
court of competent jurisdiction, without the posting of any bond or
other security, preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings, profits, and
other benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies in law or
equity to which the Employer may be entitled. The legitimate interests
of the Employer include, but are not limited to, the identity of
customers, the special needs and requirements of customers, pricing
strategies, cost factors and bidding strategies.
(h) If any Restriction under this paragraph 4, or any part
thereof, shall be determined in any judicial or administrative
proceeding to be invalid or unenforceable, the remainder of the
Restrictions shall not thereby be affected and shall be given full
effect, without regard to the invalid provisions. If the period of
time or the area specified in the Restrictions shall be determined in
any judicial or administrative proceeding to be unreasonable, then the
court or administrative body shall have the power to reduce the period
of time or the area covered and, in its reduced form, such provisions
shall then be enforceable and shall be enforced.
(i) If Employee violates any of the Restrictions, the
applicable restrictive period shall be tolled from the time of the
commencement of any such violation until such time as such violation
shall be cured by Employee to the reasonable satisfaction of the
Employer.
-4-
5
5. Termination.
(a) This Agreement may be terminated prior to the expiration of
its Term by (i) the Employer at any time or (ii) the Employee at any time after
expiration of the first six months of this Agreement (the "Initial Term"), by
written notice to the other. If such termination is by the Employee for any
reason or by the Employer for Cause (as such term is hereinafter defined), all
of the Employee's rights to compensation under Section 3 above shall terminate
upon such termination, except amounts accrued in respect of periods prior to
such termination.
If such termination is by the Employer without Cause, the Employer shall pay to
the Employee, in addition to amounts accrued in respect of periods prior to
such termination:
(i) if such termination occurs during the Initial Term,
an amount equal to the amount that would otherwise be payable to the
Employee under this Agreement during (X) the remainder of the Initial
Term or (Y) the next six months following the date of such
termination, whichever is greater, or
(ii) if such termination occurs following the Initial
term, an amount equal to the amount that would otherwise be payable
under this Agreement during the next six months following the date of
such termination.
In either case, such amount will be based on the Base Salary then in effect and
payable in installments as if the employment of Employee had continued through
the applicable number of months. "Cause" shall mean (i) failure by the Employee
to perform assigned duties in a manner which is satisfactory to the Employer,
(ii) a material breach by Employee of any of his obligations hereunder, (iii)
fraud or willful misconduct on the part of the Employee, or (iv) conviction of
the Employee for fraud, misappropriation, embezzlement, or any felony.
(b) If the Employee shall die during the term of this Agreement,
this Agreement shall automatically terminate, and no further compensation shall
be payable to Employee hereunder.
(c) If the Employee is unable to discharge his duties hereunder
for a period of two consecutive months by reason of physical or mental illness,
injury or incapacity, the Employer may, by written notice to the Employee,
terminate this Agreement and no further compensation shall be payable to
Employee hereunder.
-5-
6
6. Severability. In case any term, phrase, clause, paragraph,
restriction, covenant or agreement herein contained shall be held to be invalid
or unenforceable, the same shall be severed, and it is hereby agreed that the
same are meant to be severable, and shall not defeat or impair the remaining
provisions hereof.
7. Waiver. A waiver by any party hereto of a breach of any
provision of this Agreement, or of any duties imposed upon any party hereto by
law, or of any other clauses hereof, shall not operate or be construed as a
waiver of any subsequent or continuing breach of this Agreement by any party.
8. Assignment and Construction. This Agreement shall bind
and inure to the benefit of Employer, its successors and assigns, and Employee,
his heirs and personal representatives. Construction of the terms of this
Agreement shall be governed by the laws of the State of Texas.
9. Relationship Between the Parties. Employee shall be
considered and treated as having an employee status, and shall be entitled, to
the extent he is eligible, to participate in any plans, arrangements or
distribution of and by Employer pertaining to or in connection with any
pension, bonus, profit-sharing, or similar benefits and life, health, accident
and disability insurance or benefits, or similar employee fringe benefits for
employees of Employer. All fees, compensation and other things of value,
charged by Employer and received or realized as a result of the rendition of
services by Employee on behalf of Employer shall belong to and be paid and
delivered forthwith to Employer.
10. Notices. Any and all notices provided for herein shall
be in writing and shall be considered as properly given if delivered to the
party, or sent by certified mail, return receipt requested, at the addresses
set out below under their names.
[Remainder of page is intentionally left blank]
-6-
7
EXECUTED in duplicate originals as of the date and year first above
written.
Employer:
HYDRO ENVIRONMENTAL SERVICES
LIMITED PARTNERSHIP
By: HES Management, Inc., a
Delaware corporation and sole
general partner of Hydro
Environmental Services
Limited Partnership
By: /s/ B. XXX XXXXXX, JR.
-------------------------
B.Xxx Xxxxxx, Jr.
Chairman and Chief
Executive Officer
Address:
c/o HES Management, Inc.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Telecopy # 000-000-0000
Confirming #J14-691-0196
Employee:
/s/ XXXXX XXXXX
------------------------------------
Xxxxx Xxxxx
Address: 00000 Xxxxxxx Xxx Xxxxx
Xxxxx Xxxxx,
Xxxxxxxxx 00000
