EMPLOYMENT AGREEMENT
Exhibit
10.3
KNOW
ALL
MEN BY THESE PRESENTS, this contract for services is made this 1st
day of
July 2007 by and between the following parties:
ThermoEnergy
Corporation
000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxxxx 00000
Herein
after referenced as the “Employer” and,
Xxxxxxx
X. Xxxxxx
00
Xxxx
Xxxxxx
Xxxxxxxxx,
XX 00000
Herein
after referenced as the “Employee”
WHEREAS,
Employer is desirous of hiring Employee as one of its key employees;
WHEREAS,
Employee is willing to accept employment as an employee of Employer,
and
WHEREAS,
the parties hereto desire to delineate the responsibilities of Employee and
the
expectations of Employer;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
obligations herein contained, the parties hereto agree as follows:
| 1. |
EMPLOYMENT.
Employer hereby employs Employee, and Employee hereby accepts employment
with Employer, upon the terms and conditions set forth in this
Agreement.
|
| 2. |
TERM
OF EMPLOYMENT. The employment of Employee pursuant to the terms of
this
Agreement shall commence as of closing of the CASTion Corporation
acquisition and shall continue for a period of three (3) years, unless
sooner terminated pursuant to the provisions hereof; PROVIDED, HOWEVER,
that this Agreement shall, unless earlier terminated, as of the fifteenth
of each month of the term of this Agreement, be automatically extended
for
an additional month.
|
| 3. |
DUTIES.
|
| 3.1. |
BASIC
DUTIES. Subject to the direction and control of the Chief Executive
Officer and the Board of Directors of Employer, Employee shall serve
as
President and Chief Executive Officer of Employer’s subsidiary, CASTion
Corporation (“CASTion”) and shall fulfill all duties and obligations of
such office including but not limited to the
following:
|
| (i) |
Assist
the Board of Directors of CASTion in administering the corporate
affairs,
|
| (ii) |
Execute
corporate policy,
|
| (iii) |
Act
as Chief Executive Officer of
CASTion,
|
| (iv) |
Develop
the business plan for CASTion,
|
| (v) |
Coordinate Marketing Activities,
|
1
| (vi) |
Work
with the CFO to set and monitor operating budgets, and
|
| (vii) |
Coordinate
technology development with CTO.
|
| 3.2. |
OTHER
DUTIES OF EMPLOYEE. In addition to the foregoing, Employee shall
perform
such other or different duties related to those set forth in Paragraph
3.1
as may be assigned to him from time to time by Employer, PROVIDED,
HOWEVER, that any such additional assignment shall be at a level
of
responsibility commensurate with that set forth in Paragraph 3.1
and
PROVIDED, FURTHER, that Employee may serve, or continue to serve,
on the
boards of directors of and hold any other offices or positions in,
companies or entities that in the judgment of Employer will not present
any conflict of interest with Employer or any of its operations or
adversely affect the performance of Employee’s duties pursuant to this
Agreement.
|
| 3.3. |
TIME
DEVOTED TO EMPLOYMENT. Employee shall devote his full time to the
business
of Employer during the term of this Agreement to fulfill his obligations
hereunder.
|
| 3.4. |
PLACE
OF PERFORMANCE OF DUTIES. The services of Employee shall be performed
at
Employer’s place of business, Worcester, MA, and at such other locations
as shall be designated from time to time by
Employer.
|
| 3.5 |
SERVICES
AS OFFICER OR DIRECTOR. During the employment period, Employee shall,
if
elected or appointed, serve as a director of Employer and as an officer
and/or director of all current and future subsidiaries or affiliates
of
Employer without any additional compensation for such
services.
|
| 4. |
COMPENSATION
AND METHOD OF PAYMENT.
|
| 4.1. |
TOTAL
COMPENSATION. As compensation under this Agreement, Employer shall
pay and
Employee shall accept the
following:
|
| (1) |
BASE
COMPENSATION. For each year of this Agreement, measured from the
effective
date hereof, base compensation of $200,000.00 (Two Hundred Thousand
United
States Dollars), and further increased as may be approved from time
to
time by the Compensation Committee of the Employer. All such increases
shall be effective as of the beginning of such calendar year in which
the
increase becomes effective pursuant to the terms hereof or as approved
by
the Employer, as the case may be. Such adjustments may be based on
the
performance of Employer, the value of Employee to Employer or any
other
factors considered relevant by
Employer.
|
| (2) |
INCENTIVE
COMPENSATION. For each year the Employer shall pay to Employee as
incentive compensation (“Incentive Compensation”), in respect of each
fiscal year or portion thereof included within the Employment Period,
an
amount (up to one hundred percent (100%) of his Base Compensation)
determined in accordance with a formula to be established annually
in good
faith by the Compensation Committee of the Board of Directors of
Employer
thereof authorized to act on compensation matters and, in the case
of each
fiscal year commencing after December 31st.
|
2
| (3) |
PERIODIC
PERFORMANCE COMPENSATION. In addition to Incentive Compensation,
special
compensation can be determined periodically by the Compensation Committee
to be paid for unusual activities such as, but not inclusive of the
following: 1) complete merger or acquisition of a new business or
technology, 2) execution of new contracts in excess of twenty percent
(20%) of existing revenues of Employer, and 5) other unusual events
that
are determined to be significant by the Compensation Committee.
|
| (4) |
EXPENSE
REIMBURSEMENT. Reimbursement of such discretionary expenses, including
travel expenses, as are reasonable and necessary, in the judgment
of the
Employer, for Employee’s performance of his responsibilities under this
Agreement.
|
| (5) |
STOCK
OPTIONS. Nonqualified options issued at the discretion of the
Employer.
|
| (6) |
RESTRICTED
STOCK GRANTS. Restricted stock issued at the discretion of the
Employer.
|
| (7) |
EMPLOYEE
FRINGE BENEFITS. Participation in Employer’s employee fringe benefit
programs in effect from time to time for employees at comparable
levels of
responsibility. Participation will be in accordance with any applicable
policies adopted by Employer. Employee shall be entitled to vacations,
absences For
illness, and to similar benefits of employment, and shall be subject
to
such policies and procedures as may be adopted by Employer. Without
limiting the generality of the foregoing, it is initially anticipated
that
such benefits of employment shall include four (4) weeks vacation
during
each 12-month period of employment with Employer (which shall accrue
monthly on a PRO RATA basis and which shall be carried forward
for a
period not to exceed three (3) years and otherwise in accordance
with
Employer’s policies); major medical and health insurance; life and
disability insurance; and stock option plans for employees and
members of
the Board of Directors. Employer further agrees that in the event
it
offers disability insurance to its employees, Employer shall arrange
for
Employee to be covered by similar
insurance.
|
| (8) |
In
addition, Employee shall be entitled to a car allowance of $750.00
per
month.
|
| (9) |
LIFE
INSURANCE. The Employer shall pay all premiums for one or more life
insurance policies upon the life of the Employee in an aggregate
face
amount equal to two and one-half times (2&1/2) the Base Compensation
of Employee. The death benefit or benefits shall be payable to such
beneficiary or beneficiaries as Employee shall designate in writing
to
Employer. Employee shall aid Company in procuring such insurance,
as well
as in obtaining any other life, health, accident, disability, or
other
insurance which Employer should at any time apply for, it its own
name ant
its own expense, to ensure Employer’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.
|
3
| (10) |
OTHER
BENEFITS. Employer shall pay or shall reimburse Employee for his
reasonable expenses in connection with (i) obtaining from time-to-time
of
financial planning advice; (ii) preparation of personal Federal and
State
income tax returns; and (iii) cost of annual medical physical
examinations. While employed, the Employer shall also pay the initiation
fee and the annual and/or monthly dues and/or assessments for the
Employee’s membership in social and/or business clubs, business
organizations, and social and/or civic groups of Employee’s choosing. The
employer will also provide parking for the Employee at the place
of
business at no cost to the
Employee.
|
| (11) |
In
the event of a Change of Control of Employer (as such term is defined
in
Section 4.3 hereof). Employee shall be entitled to receive the balance
of
the unpaid base compensation (“Unpaid Base Compensation”) which would
otherwise be payable to Employee during the remainder of the term
of this
Agreement pursuant to Section 4.1(1) hereof within thirty (30) days
of the
date of such Change of Control and any and all stock options and/or
restricted stock grants granted to Employee pursuant to Section 4.1(5)
and
4.1(6) hereof and otherwise shall vest immediately upon the date
of such
Change of Control; PROVIDED, HOWEVER, in the event of such Change
of
Control of Employer, the term of this Agreement shall automatically
be
extended to a period of three (3) years from the date of such Change
of
Control of Employer for purposes of this
Section 4.1(11).
|
| (12) |
MOVING
EXPENSES. In the event that during the term of this agreement, Employee
is
transferred by Employer to a new principal place of work at least
100
miles further from his residence at the time of transfer (“current
residence’) than his principal place of work at the time of the transfer,
Employer shall reimburse Employee for all reasonable expenses incurred
for:
|
| (i) |
The
expenses of two round-trips, including meals and lodging, by Employee
and
Employee’s spouse, 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.
|
| (ii) |
The
expenses of a one-way trip, including meals and lodging, by Employee
and
Employee’s spouse, from the current residence to the new place of
residence.
|
| (iii) |
Moving
the household goods and personal effects of Employee and Employee’s spouse
from the current residence to the new place of
residence.
|
| (iv) |
Meals
and lodging for Employee and Employee’s spouse for a period of consecutive
days not in excess of 60 days while occupying temporary quarters
in the
general location of the new principal place of
work.
|
| (v) |
“Qualified
residence sale, purchase, or lease expenses” as defined in Internal
Revenue Code, subject to any future amendments. Reasonable expenses
incident to: the sale or exchange of Employee’s former residence (but not
for work performed on it to assist in its sale); the purchase of
a
new
residence, including the cost of a loan but not including any prepayment
of interest; the settlement of an unexpired lease held by Employee
on his
former residence; and the acquisition of a lease on the new residence
of
Employee, but not including any prepayment of rent.
|
4
| 4.2. |
PAYMENT
OF COMPENSATION. Employer shall pay the compensation provided for
in
Section 4.1 hereof as follows:
|
| (1) |
Employer
shall pay the base compensation in cash in accordance with Employer’s
payroll practices for all its employees, but in no event less frequently
than monthly.
|
| (2) |
Incentive
Compensation earned hereunder shall be determined by the Compensation
Committee as soon as reasonably practicable after the end of each
fiscal
year of Employer and shall be paid promptly thereafter to the
Employee.
|
| (3) |
Employer
shall pay in cash the reimbursement of such discretionary expenses
provided in Section 4.1(4), 4.1(8) and 4.1(10)
hereof.
|
| (4) |
If
the Employer in its judgment determines that payment in full of
compensation due Employee currently would imperil the Employer’s ability
to remain a going concern, it may give a written notice (a “Deferral
Notice”) to Employee to the effect that all or a designated percentage of
his compensation for such fiscal year in excess of the then-applicable
minimum wage shall be deferred until the first to occur of (i) a
Change of
Control or (ii) the first anniversary of the date of the Deferral
Notice;
provided, however, that if on the first anniversary of the date of
the
Deferral Notice, the Employer determines that payment of the deferred
compensation would imperil the Employer’s ability to remain a going
concern, then payment of the deferred compensation shall be further
deferred until such time as the Employer determines that such payment
would not imperil the Employer’s ability to remain a going concern.
Deferred Base 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 Prime Rate as published
in
The
Wall Street Journal
on
the date of the deferral. Such interest shall be computed annually
in
arrears, and shall be added as of the last day of each fiscal year
of
Employer.
|
| 4.3 |
A
CHANGE OF CONTROL OF EMPLOYER. For all purposes of this Agreement,
a
“Change of Control” shall mean: (i) the acquisition by any person, entity
or groups of persons, within the meaning of Section 13(d) or 14(d),
or any
comparable successor provisions of the Securities Exchange Act of
1934
(the “Act”) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Act) of at least twenty-five percent (25%)
of either
the outstanding shares of common stock or the combined voting power
of
Employer’s then outstanding voting securities entitled to vote generally,
or (ii) the approval by stockholders of Employer of a reorganization,
merger or consolidation, in which persons who were stockholders of
Employer immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own or control more than fifty percent
(50%) of the combined voting power entitled to vote generally in
the
election of directors of the surviving corporation of such reorganization
merger or consolidation, or a liquidation or dissolution of Employer
or of
the sale of all or substantially all of Employer’s assets, or (iii) in the
event Employer terminates Employee pursuant to this Agreement for
any
reason other than the occurrence of any of the events set forth in
Sections 5.2(2), (3), (4), (6), (7) or (9) hereof, or (iv) in the
event
any person shall be elected by the stockholders of Employer to the
Board
of Directors of Employer who shall not have been nominated for election
by
a majority of the Board of Directors of Employer or any duly appointed
committee thereof.
|
5
| 5. |
TERMINATION
OF AGREEMENT.
|
| 5.1. |
BY
NOTICE. This agreement, and the employment of Employee hereunder,
may be
terminated by Employee or Employer upon ninety (90) days written
notice of
termination; PROVIDED, HOWEVER, in the event Employer terminates
this
Agreement for any reason other than the occurrence of any of the
events
set forth in Sections 5.2(2), (3), (4), (6), (7) or (9), and subject
to
Section 4.1(11) hereof, Employee shall be entitled to receive the
balance
of the unpaid base salary which would otherwise be payable to Employee
during the remainder of the term of this Agreement pursuant to Sections
4.1(1), 4.1(8) and 4.1(10) hereof within thirty (30) days after such
ninety (90) day notice period.
|
| 5.2. |
OTHER
TERMINATION. This Agreement and the employment of Employee hereunder,
shall terminate immediately upon the occurrence of any one of the
following events:
|
| (1) |
The
death or mental or physical incapacity of
Employee.
|
| (2) |
The
loss by Employee of legal capacity (other than as described in Section
5.2(1) hereof).
|
| (3) |
The
failure by Employee to devote substantially all of his available
professional time to the business of Employer or the willful and
habitual
neglect of duties.
|
| (4) |
The
willful engaging by Employee in an act of dishonesty constituting
a felony
under the laws of the state in which Employer’s principal place of
business is located, resulting or intending to result in gain or
personal
enrichment at the expense of Employer or to the detriment of Employer’s
business and to which Employee is not legally
entitled.
|
| (5) |
The
continued incapacity in excess of one hundred eighty (180) days on
the
part of Employee to perform his duties, unless waived by
Employer.
|
| (6) |
The
mutual written agreement of Employee and
Employer.
|
| (7) |
The
expiration of the term of this
Agreement.
|
| (8) |
The
involuntary termination of Employee as a director of
Employer.
|
6
| (9) |
Employee’s
breach of this Agreement.
|
| 5.3. |
EFFECT
OF TERMINATION BY REASON OF DEATH OR INCAPACITY. In the event of
the
termination of Employee’s employment pursuant to Sections 5.2(1) or (5) of
this Agreement prior to the completion of the term of employment
specified
herein, and subject to Section 4.1 (11) hereof, Employee shall be
entitled
to receive the balance of the unpaid compensation (including any
Incentive
Compensation pursuant to Section 4.1(2) hereof) which is not covered
by
disability or other insurance and which would otherwise be payable
to
Employee during the term of this Agreement pursuant to Section 4.1(1)
hereof within 60 days after such termination.
|
| 5.4. |
REMEDIES.
No termination of the employment of Employee pursuant to the terms
of this
Agreement shall prejudice any other remedy to which any party to
this
Agreement may be entitled either at law, in equity, or under this
Agreement.
|
| 6. |
PROPERTY
RIGHTS AND OBLIGATIONS OF EMPLOYEE.
|
| 6.1. |
TRADE
SECRETS. For purposes of this Agreement, “trade secrets” shall include
without limitation any and all financial, cost and pricing information
and
any and all information contained in any drawing, designs, plan,
proposals, customer lists, records of any kind, data, formulas,
specifications, concepts or ideas, where such information is reasonably
related to the business of Employer and has not previously been publicly
released by duly authorized representatives of Employer or Parent
or
otherwise lawfully entered the public
domain.
|
| 6.2. |
PRESERVATION
OF TRADE SECRETS. Employee will preserve as confidential all trade
secrets
pertaining to Employer’s business that have been or may be obtained or
learned by him by reason of his employment or otherwise. Employee
will
not, without the written consent of Employer, either use for his
own
benefit or purposes or disclose or permit disclosure to any third
parties,
either during the term of his employment hereunder or thereafter
(except
as required in fulfilling the duties of his employment), any trade
secret
connected with the business of
Employer.
|
| 6.3. |
TRADE
SECRETS OF OTHERS. Employee agrees that he will not disclose to Employer
or induce Employer to use any trade secret belonging to any third
party.
|
| 6.4. |
PROPERTY
OF EMPLOYER. Employee agrees that all documents, reports ` files,
analyses, drawings, designs tools, equipment, plans (including, without
limitation, marketing and sales plans), proposals, customer lists,
computer software or hardware, patents, license agreements, and similar
materials that are made by him or come into his possession by reason
of
his employment with Employer are the property of Employer and shall
not be
used by him in any way adverse to Employer’s interests. Employee will not
allow any such documents or things, or any copies, reproductions
or
summaries thereof to by delivered to or used by any third party without
the specific consent of Employer. Employee agrees to deliver to the
Board
of Directors of Employer or its designee, upon demand, and in any
event
upon the termination of Employee’s employment, all of such documents and
things which are in Employee’s possession or under his control.
|
7
| 6.5. |
NONCOMPETITION
BY EMPLOYEE. During the term of Employee’s employment under this
Agreement, and for a period of one (1) year following the termination
of
such employment for any reason, Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, principal stockholder, corporate officer, director, or in
any
other individual or representative capacity: (i) engage or participate
in
any business that is in competition in any manner with the business
of
Employer; (ii) divert, take away or attempt to divert or take away
(and
during the one year period, call on or solicit) any of Employer’s clients
within the United States. For purposes of this Agreement, the term
“Employer’s clients” shall mean clients who had a business relationship
with Employer prior to Employee’s employment with Employer and those who
develop a business relationship with Employer, during Employee’s
employment with Employer; (iii) undertake planning for or organization
of
any business within the United States or in any other country in
which
Employer is engaged in business activity competitive with Employer’s
business within the United States or in any other country in which
Employer is engaged in business or combined or conspire with employees
or
other representative of Employer’s business within the United States or in
any other country in which Employer is engaged in business for the
purpose
of organizing any such competitive activity within the United States
or in
any other country in which Employer is engaged in business; or (iv)
induce
or influence (or seek to induce or influence) any person who is engaged,
as an employee, agent, independent contractor or otherwise by Employer
within the United States or in any other country in which Employer
is
engaged in business to terminate his or her employment or engagement.
Employee acknowledges that the Employer’s business is broad in geographic
scope and agrees that, in light thereof, the geographic scope of
the
restrictions set forth in this Section 6.5 is reasonable. Employee
also
acknowledges that, as an executive officer of CASTion and of the
Employer,
he will be directly involved in the development and implementation
of the
Employer’s business strategy and agrees that, in light thereof, the
duration and subject matter scope of the restrictions set forth in
this
Section 6.5 are reasonable.
|
| 6.6. |
SURVIVAL
PROVISIONS AND CERTAIN REMEDIES. Unless otherwise agreed to in writing
between the parties hereto, the provisions of this Section 6 shall
survive
the termination of this Agreement. The covenants in this Section
6 shall
be construed as separate covenants and to the extent any covenant
shall be
judicially unenforceable, it shall not affect the enforcement of
any other
covenant. In the event Employee breaches any of the provisions of
this
Section 6, Employee agrees that Employer may be entitled to injunctive
relief in addition to any other remedy to which Employer may be
entitled.
|
| 7. |
GENERAL
PROVISIONS:
|
| 7.1. |
NOTICES.
Any notices or other communications required or permitted to be given
hereunder shall be given sufficiently only if in writing and served
personally or sent by certified mail, postage prepaid and return
receipt
requested, addressed as follows:
|
|
If
to Employer:
|
ThermoEnergy
Corporation
|
|
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx
Xxxx, Xxxxxxxx 00000
|
|
|
Attn:
Chief Financial Officer
|
|
|
Tel:
000.000.0000
|
|
|
Fax:
000.000.0000
|
8
|
If
to Employee:
|
Xxxxxxx
X. Xxxxxx
|
|
00
Xxxx Xxxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Tel:
000.000.0000
|
|
|
Fax:
000.000.0000
|
However,
either party may change his/its address for purposes of this Agreement by giving
written notice of such change to the other party in accordance with this
Paragraph 7.1. Notices delivered personally shall be deemed effective as of
the
day delivered and notices delivered by mail shall be deemed effective as of
three days after mailing (excluding weekends and federal holidays).
| 7.2. |
CHOICE
OF LAW AND FORUM. Except as expressly provided otherwise in this
Agreement, this Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts. The parties agree that
any dispute arising under this Agreement, whether during the term
of this
Agreement or at any subsequent time, shall be resolved exclusively
in the
courts of the State of Arkansas and the parties hereby submit to
the
jurisdiction of such courts for all purposes provided
herein.
|
| 7.3. |
ENTIRE
AGREEMENT; MODIFICATION AND WAIVER. This Agreement supersedes any
and all
other agreements, whether oral or in writing, between the parties
hereto
with respect to the employment of Employee by Employer and contains
all
covenants and agreements between the parties relating to such employment
in any manner whatsoever. Each party to this Agreement acknowledges
that
no representations, inducements, promises, or agreements, oral or
written,
have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement,
or
promise not contained in this Agreement shall be valid or binding.
Any
modification of this Agreement shall be effective only if it is in
writing
signed by the party to be charged. No waiver of any of the provisions
of
this Agreement shall be deemed, or shall constitute, a waiver of
any other
provision, whether or not similar, nor shall any waiver constitute
a
continuing waiver. No waiver shall be binding unless executed in
writing
by the party making the waiver.
|
| 7.4. |
ASSIGNMENT.
Because of the personal nature of the services to be rendered hereunder,
this Agreement may not be assigned in whole or in part by Employee
without
the prior written consent of Employer. However, subject to the foregoing
limitation, this Agreement shall be binding on, and shall inure to
the
benefit of, the parties hereto and their respective heirs, legatees,
executors, administrators, legal representative, successors and
assigns.
|
| 7.5. |
SEVERABILITY.
If for any reason whatsoever, any one or more of the provisions of
this
Agreement shall be held or deemed to be inoperative, unenforceable,
or
invalid as applied to any particular case or in all cases, such
circumstances shall not have the effect of rendering any such provision
inoperative, unenforceable, or invalid in any other case or of rendering
any of the other provisions of this Agreement inoperative, unenforceable
or invalid.
|
9
| 7.6. |
CORPORATE
AUTHORITY. Employer represents and warrants as of the date hereof
that
Employer’s execution and delivery of this Agreement to Employee and the
carrying out of the provisions hereof have been duly authorized by
Employer’s Board of Directors and authorized by Employer’s shareholders
and further represents and warrants that neither the execution and
delivery of this Agreement, nor the compliance with the terms and
provisions thereof by Employer will result in the breach of any state
regulation, administrative or court order, nor will such compliance
conflict with, or result in the breach of, any of the terms or conditions
of Employer’s Articles of Incorporation or Bylaws, as amended, or any
agreement or other instrument to which Employer is a party, or by
which
Employer is or may be bound, or constitute an event of default thereunder,
or with the lapse of time or the giving of notice or both constitute
an
event of default thereunder.
|
| 7.7. |
ATTORNEY’S
FEES. In any action at law or in equity to enforce or construe any
provisions or rights under this Agreement, the unsuccessful party
or
parties to such litigation, as determined by the courts pursuant
to a
final judgment or decree, shall pay the successful party or parties
all
costs, expenses, and reasonable attorneys’ fees incurred by such
successful party or parties (including, without limitation, such
costs,
expenses, and fees on any appeals), and if such successful party
or
parties shall recover judgment in any such action or proceedings,
such
costs, expenses, and attorneys’ fees shall be included as part of such
judgment.
|
| 7.8. |
COUNTERPARTS.
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together
shall
constitute one and the same
instrument.
|
| 7.9. |
HEADING
AND CAPTIONS. Heading and captions are included for purposes of
convenience only and are not a part
hereof.
|
| 7.10. |
CONSULTATION
WITH COUNSEL. Employee acknowledges that he has had the opportunity
to
consult with counsel independent of Employer or Employer’s counsel,
regarding the entering into of this Agreement and has done so to
the
extent he sees fit.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the day and year first written above at Little Rock, Arkansas.
|
“Employer”
|
|||
|
ThermoEnergy
Corporation
|
|||
| By: /s/ Xxxxxx X. Xxxxxx | 7/2/07 | ||
|
Xxxxxx X. Xxxxxx, Chief Financial Officer |
Date
|
|
“Employee”
|
|||
| By: /s/ Xxxxxxx X. Xxxxxx | 6-28-07 | ||
|
Xxxxxxx X. Xxxxxx |
Date
|
10
