EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 6th day
of August, 1997 ("Effective Date"), by and between OUACHITA ENERGY
CORPORATION, a Delaware corporation (the "Employer"), EQUITY COMPRESSION
SERVICES CORPORATION, an Oklahoma corporation (the "Parent"), and XXX
XxXXXXXXX (the "Employee"). The Employer, the Parent and the Employee may be
referred to herein collectively as the "Parties" and individually as a
"Party".
W I T N E S S E T H:
WHEREAS, Xxxxxx X. Xxxxx, Ouachita Energy Corporation, a Louisiana
corporation (the "Predecessor"), the Parent and OEC Acquisition Corporation,
a Delaware corporation (the "Merger Sub"), are parties to that certain
Agreement and Plan of Merger dated as of May 15, 1997, as amended by that
certain First Amendment to Agreement and Plan of Merger dated as of July 30,
1997 (the "Merger Agreement"); and
WHEREAS, pursuant to the Merger Agreement, the Merger Sub and the
Predecessor have been merged together (the "Merger") with the Employer being
the surviving corporation of the Merger; and
WHEREAS, as a result of the Merger, the Employer has succeeded to all of
the assets and business of the Predecessor; and
WHEREAS, pursuant to that certain Asset Purchase and Sale Agreement dated
as of May 15, 1997 by and among the Employee, Ouachita Energy Partners, Ltd.,
a Louisiana corporation ("Seller #1"), Ouachita Compressor Group, LLC, a
Louisiana limited liability company ("Seller #2", and together with Seller
#1, collectively referred to as the "Sellers"), the Parent and the Merger
Sub, as amended by that certain First Amendment to Asset Purchase and Sale
Agreement dated as of July 30, 1997 (the "Asset Purchase Agreement"), the
Merger Sub has acquired substantially all of the assets of the Sellers and
has also acquired certain assets from Xxxxxx X. Xxxxx; and
WHEREAS, the Employee has been the Vice President of Marketing and
Business Development of the Predecessor and each of the Sellers and has
substantial and valuable experience and knowledge concerning the operations
of the Sellers and the Predecessor; and
WHEREAS, one of the conditions to the consummation of the transactions
contemplated by the Merger Agreement and the Asset Purchase Agreement (the
"Purchase Transaction"), is the execution and delivery of this Agreement by
the Employee; and
WHEREAS, the execution and delivery of this Agreement by the Employee is
reasonable and necessary for the Parent and the Merger Sub to realize the
agreed benefits of the Purchase Transaction; and
WHEREAS, the Parent and the Merger Sub would not have consummated the
Purchase Transaction unless the Employee and Employer executed and delivered
this Agreement; and
WHEREAS, the Parent is the holder of all of the issued and outstanding
shares of stock of the Employer; and
WHEREAS, the transaction contemplated by this Agreement will benefit the
Parent; and
WHEREAS, the Employee is a party to an employment contract with the
Predecessor and/or one or more of the Sellers (the "Prior Employment
Contract"); and
WHEREAS, the Parties desire to provide for the termination and
cancellation of the Prior Employment Contract;
NOW THEREFORE, for and in consideration of the mutual covenants and
conditions contained in this Agreement and in consideration of other good and
valuable consideration (including the consummation of the Merger and the
Purchase Transactions), the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby contract and
agree as follows:
ARTICLE I
PRIOR EMPLOYMENT CONTRACT; TERM OF EMPLOYMENT
1.01 PRIOR EMPLOYMENT CONTRACT. The Parties acknowledge and agree that,
as of the date hereof, the Prior Employment Contract is hereby terminated and
cancelled and that, from and after the date hereof, the employment of the
Employee with the Employer shall be governed by this Agreement. The Employee
hereby releases any rights that he may have under the Prior Employment
Contract.
1.02 TERM. The Employer now hereby employs the Employee and the Employee
hereby accepts employment with the Employer for a period (the "Initial Term")
beginning as of the Effective Date and ending on the second anniversary of
the Effective Date (the "Initial Termination Date"), subject, however, to
earlier termination as hereinafter provided.
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The term of this Agreement shall automatically be extended for one or
more additional one year periods, unless either Party gives the other Party
written notice at least ninety (90) days prior to end of the Initial Term or
any applicable one year extension thereof, as the case may be. The Initial
Term and any extended term are sometimes referred to in this Agreement as the
"Term".
ARTICLE II
DUTIES OF EMPLOYEE
2.01 DUTIES. The Employee is engaged to be the Vice President of
Marketing and Business Development of the Employer. The Employee's duties
and powers as such shall be determined from time to time by the Board of
Directors of the Employer (hereinafter referred to as the "Board of
Directors"). The Employee's duties under this Agreement shall be consistent
with his position as the Vice President of Marketing and Business Development
of the Employer. The Employee shall perform and discharge such duties well
and faithfully to the best of his ability, and shall be subject to the
supervision and direction of the Board of Directors and such other employees
of the Parent and the Employer as are designated from time to time by the
Board of Directors (the "Designated Employees").
2.02 FULL TIME EMPLOYMENT. During the Term, the Employee shall devote
substantially all of his working time, ability, and attention to the business
of the Employer and shall not, directly or indirectly, render any services of
a business, commercial or professional nature to any other person,
corporation, firm or organization, whether for compensation or otherwise,
without the prior written consent of the Employer; provided, however, that
this requirement shall not preclude Employee from (i) serving on the boards
of directors of a reasonable number of other corporations or trade
associations (that are not in competition, directly or indirectly, with the
Employer or the Parent or are customers or suppliers of the Employer or the
Parent); (ii) engaging in charitable activities and community affairs; (iii)
managing his personal investments and affairs; or (iv) engaging in business
activities of a personal nature, provided that such activities do not
significantly interfere or conflict with the reasonable performance of his
duties hereunder. The execution and performance of the Employee's duties
under this Agreement do not conflict with or result in a breach of or a
default under any agreement, contract or instrument to which the Employee is
a party or by which the Employee is otherwise bound.
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ARTICLE III
COMPENSATION AND BENEFITS
3.01 BASE COMPENSATION. As compensation for services rendered and the
Employee's covenants and agreements under this Agreement, the Employee shall
be entitled to receive from the Employer a base salary of $115,000 per year,
payable in twenty-four (24) equal semimonthly installments or twenty-six (26)
biweekly installments, as the case may be, for each year during the Term in
accordance with the Employer's normal payment practice.
3.02 BONUS. The Employer shall pay the Employee such bonus, if any, as
the Board of Directors determines to be appropriate in its sole and absolute
discretion. Notwithstanding any provision of this Agreement to the contrary
during the first two years of the Term, the Employer shall pay to the
Employee a bonus of not less than $27,000 per year (the "Minimum Bonus").
The Minimum Bonus shall be paid to the Employee on or before the 15th day of
August each year. If during the first two years of the Term the Board of
Directors determines that the Employee is entitled to a bonus that is larger
than the Minimum Bonus, then the Employer shall pay such bonus to the
Employee at the same time as similar bonuses are paid to other executive
employees of the Employer or the Parent. Following the first two years of
the Term, the Employee shall be eligible to participate in such bonus plan,
if any, as the other executive employees of the Parent and the Employer are
participating.
3.03 BENEFIT PLAN. The Employer agrees to include the Employee in any
benefit plan adopted by the Employer for the benefit of its senior employees.
The Employee will be entitled to a paid vacation of not less than three weeks
per year. Set forth on Exhibit "A" attached hereto is a list of the employee
benefits that are applicable to the Employee as of the date hereof. The
Parties acknowledge and agree that the Employer may modify, amend, change or
terminate such employee benefits from time to time in accordance with the
terms of the plans establishing such benefits.
3.04 EXPENSES. The Employer, in accordance with the rules and
regulations that the Employer may issue and revise from time to time, shall
reimburse the Employee for business expenses directly and reasonably incurred
in the performance of his duties.
3.05 STOCK OPTIONS. On the date hereof, the Employee has been granted
non-qualified stock options to purchase 100,000 shares of Parent Common Stock
under the Parent's Employee Stock Option Plan (the "Plan"). The Employee
acknowledges that such options are subject to the terms and conditions
contained in the Plan.
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ARTICLE IV
TERMINATION
This Agreement shall terminate prior to the expiration of its Term upon
the occurrence of any one of the following events:
4.01 DISABILITY. In the event that the Employee is unable to perform the
essential function of his job with or without reasonable accommodation, by
reason of illness, injury or incapacity for one hundred twenty (120)
consecutive days, during which time the Employee shall continue to be
compensated as provided in Section 3.01 and Section 3.02 hereof, this
Agreement may be terminated by the Employer, and the Employer shall have no
further liability or obligation to the Employee for compensation hereunder;
provided, however, that the Employee will be entitled to receive the payments
prescribed under any disability benefits plan in which the Employee was
participating. In the event of any dispute between the Employer and the
Employee under this Section 4.01 as to whether the Employee's employment may
be terminated under this Section 4.01, the Employee shall submit to a
physical examination by a licensed physician selected jointly by the Employer
and the Employee, and the determination of such physician shall be binding on
the Parties.
4.02 DEATH. In the event that the Employee dies during the Term, the
Employer shall pay to his executors, legal representatives or administrators
a lump sum amount equal to:
(a) all unpaid base compensation payable under Section 3.01 through
the date of death; and
(b) all unpaid bonus payable under Section 3.02 through the date of
death, including a pro rata bonus payment equal to the product of (A) the
bonus the Employee received for the full year prior to the year that
includes the date of death (but if such death occurs during the first two
years of the Term, then no less than $27,000) multiplied by (B) a fraction,
the numerator of which is the number of days during the period subsequent
to the last day of the year with respect to which a bonus for an entire
year was payable to Employee under Section 3.02 and up to and including the
date of death, and the denominator of which is 365.
The Employer shall have no further liability or obligation hereunder to the
Employee's executors, legal representatives, administrators, heirs or assigns
or any other person claiming under or through the Employee; provided,
however, that the Employee's executors, legal representatives and
administrators will be entitled to receive and disburse to the proper persons
the payments prescribed under any death or disability benefits plan in which
the Employee was participating.
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4.03 CAUSE. Nothing in this Agreement shall be construed to prevent the
termination of this Agreement by the Employer for "cause". For purposes of
this Agreement, "cause" shall mean (i) the Employee's failure to perform or
observe (other than by reason of illness, injury or incapacity) any of the
initial terms or provisions of this Agreement, including the failure of the
Employee to follow the reasonable directions of the Board of Directors or any
Designated Employees with respect to the business of the Employer, (ii)
dishonesty, misconduct or action on the part of the Employee that is or is
reasonably likely to be materially damaging or detrimental to the business of
the Employer, (iii) conviction of a felony, or of any misdemeanor involving
moral turpitude, (iv) insobriety or drug addiction that is materially
affecting or is likely to materially affect the Employee's ability to perform
the services required of him hereunder, or (v) misappropriation of funds.
Subject to applicable cure periods as set out in the next sentence, the
Employee's employment may be terminated for cause at any time. Prior to
terminating this Agreement on account of a cause described in clauses (i) or
(iv) above (but not for any of the other enumerated "causes"), the Employer
shall give the Employee thirty (30) days' written notice and an opportunity
to cure such failure to the satisfaction of the Employer. Upon termination
for cause, the Employer shall pay to the Employee all unpaid sums due to the
Employee under Sections 3.01 and 3.02 through the date of such termination.
Following a termination for cause and payment of the amounts required under
this Section, the Employer shall have no further duty or obligation to the
Employee; provided, however, that the Employee shall continue to be bound by
Article V.
4.04 TERMINATION WITHOUT CAUSE. The Employer may terminate this
Agreement without cause at any time by giving the Employee written notice of
such termination at least ninety (90) days prior to the scheduled date of
such termination. If this Agreement is terminated without cause pursuant to
this Section 4.04, then the Employer shall provide to the Employee, as
severance and in consideration of his covenants contained in Article V
hereof, a lump sum amount equal to:
(i) an amount equal to one year's salary for such Employee at the
date of such termination; and
(ii) all bonuses that would otherwise be payable under Section 3.02
for a year period following such termination, but if such termination
occurs during the first two years of the Term, then no less than $27,000.
All payments due under this Section 4.04 shall be made in full no later
than thirty (30) days after such termination, and after such payment has been
made the Employer shall have no further liability or obligation hereunder to
the Employee; provided, however, that the Employee shall continue to be bound
by Article V.
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4.05 CHANGE OF CONTROL. (a) If a "Change of Control" (as hereinafter
defined) occurs during the Term, then the Employer may terminate this
Agreement by delivering written notice of such termination within ninety (90)
days following such Change of Control and in which event the Employer shall
pay to the Employee a lump sum equal to the amount that the Employee would
have received if this Agreement had been terminated by the Employer under
Section 4.04. For the purposes of this Agreement, the term "Change of
Control" shall be defined to be (i) the dissolution of Parent and its
subsidiaries; (ii) the liquidation of more than fifty percent in value of
Parent or its subsidiaries; (iii) a sale of assets involving fifty percent or
more in value of the assets of the Parent or its subsidiaries; (iv) any
merger or reorganization or consolidation of the Parent in which the Parent
is not the surviving entity; (v) any merger or reorganization or
consolidation of any subsidiary in which the subsidiary is not the surviving
entity (other than a merger or reorganization or consolidation with Parent or
any entity controlled by the Parent); (vi) any sale or other disposition of
more than fifty percent of the combined voting securities of the subsidiaries
of the Parent; (vii) any transaction pursuant to which the holders, as a
group, of all of the securities of the Parent outstanding prior to the
transaction hold, as a group, less than fifty percent of the combined voting
power of the Parent or any successor company outstanding after the
transaction; (viii) the acquisition of ownership, beneficial or otherwise, of
fifty percent or more of the then outstanding common stock of the Parent, by
any person or entity, together with all associates of such person or entity;
or (ix) a change in the composition of the Parent's Board of Directors, such
that during any two year period, directors of the Parent serving at the
beginning of such period cease for any reason to constitute a majority of the
directors serving on the Board of Directors of the Parent.
(b) If a Change of Control occurs during the term of this Agreement and
if a Constructive Termination Event (as hereinafter defined) occurs within
one year of such Change of Control, then the Employee may terminate this
Agreement by delivering written notice within sixty (60) days of such
Constructive Termination Event, and the Employer shall pay to the Employee a
lump sum equal to the amount that the Employee would have received if this
Agreement had been terminated by the Employer under Section 4.04. For the
purposes of this Agreement, the term "Constructive Termination Event" means
the (i) reduction in the Employee's salary or (ii) the relocation of the
Employee.
(c) Following a termination of this Agreement pursuant to and in
compliance with the terms of this Section 4.05, (i) all Parent stock options
held by the Employee shall immediately vest and become exercisable and (ii)
the Employer shall have no further duty or obligation to the Employee;
provided, however, that the Employee shall continue to be bound by Article V.
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4.06 VOLUNTARY TERMINATION BY EMPLOYEE. If the Employee voluntarily
terminates his employment with the Parent other than in the manner
contemplated in Section 4.06 hereof, the Employer shall pay to the Employee a
lump sum amount equal to:
(a) all unpaid base compensation payable under Section 3.01 through
the date of termination; and
(b) all unpaid bonus payable under Section 3.02 through the date of
termination, including a pro rata bonus payment equal to the product of (A)
the bonus the Employee received for the full year prior to the year that
includes the date of termination (but if such termination occurs during the
first two years of the Term, then no less than $27,000) multiplied by (B) a
fraction, the numerator of which is the number of days during the period
subsequent to the last day of the full year with respect to which a bonus
for an entire calendar year was payable to Employee under Section 3.02 and
up to and including the date of termination, and the nominator of which is
365.
The foregoing payment shall be made in full no later than thirty (30)
days after such termination, and after such payment has been made the
Employer shall have no further liability or obligation hereunder to the
Employee. In addition, following such termination the Employee shall have no
further liability or obligation hereunder to the Employer; provided, however,
that the Employee shall continue to be bound by Article V.
ARTICLE V
PROPERTY RIGHTS
5.01 NON-COMPETITION. During the period the Employee is employed by the
Employer pursuant to the terms of this Agreement and for a period of twelve
months following the termination of his employment under this Agreement, (i)
upon expiration of the Term of this Agreement as provided in Article I
hereof, or (ii) by Employer pursuant to and in accordance with the terms of
Sections 4.01, 4.03, 4.04 or 4.05 hereof, or (iii) by Employee for any reason
(including pursuant to Sections 4.05(b) and 4.06), as the case may be, (the
"Non-Competition Period"), the Employee shall not, directly or indirectly,
either as an employee, employer, consultant, member, agent, lender,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in compression services and in competition with the business of
Employer or the Parent within the States of Texas, Oklahoma, Kansas, Arkansas
and the parishes in Louisiana set forth on Exhibit "B" attached hereto,
except as approved in writing by the Employer; provided however, that if the
Employer notifies the Employee at least six months prior to the end of such
one year Non-Competition
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Period that the Employer desires to extend the Non-Competition Period for an
additional year on the terms set forth below, then the Non-Competition Period
shall be extended for an additional year period (the "Additional
Non-Competition Period") and the Employer shall pay to the Employee (at the
same time as such amounts would had been paid to the Employee) the
compensation set forth in Sections 3.01 and 3.02 of this Agreement less an
amount equal to 50% of any salary or employment or consulting compensation
earned the Employee during the Additional Non-Competition Period. During any
Additional Non-Competition Period, the Employee shall notify and keep the
Employer informed concerning any employment or consulting engagements during
the Additional Non-Competition Period.
5.02 SOLICITATION. During the Non-Competition Period, the Employee
agrees not to, directly or indirectly, call on or solicit, for the purposes
of engaging in activity that could be competitive with the compression
business of the Employer and the Parent as of August __, 1997, any person,
firm, corporation, partnership, limited liability company or other entity who
or which during the Term was or had been a client, customer, referral source,
supplier, or employee of the Employer or the Parent.
5.03 CONFIDENTIAL INFORMATION. Except as may be required for the
provision of his duties under this Agreement, the Employee will not, during
the Term and during the two year period following the termination of this
Agreement, for any reason, disclose any confidential information of the
Employer or the Parent to any person, firm, corporation, association or other
entity for any reason or purpose whatsoever, nor shall the Employee make use
of any such confidential information for his own purposes or for the benefit
of any person, firm, corporation, partnership, limited liability company or
other entity (except the Employer) under any circumstances. The Employee
agrees that, upon termination of this Agreement or on demand of the Employer,
at any time, he shall immediately deliver all such printed or written
material and copies thereof to the Employer. Notwithstanding the foregoing,
nothing herein shall limit the Employee's ability to use any such information
for personal or business purposes as long as such use does not violate the
terms of Section 5.01 hereof or adversely affect the rights or interests of
the Employer or the Parent.
5.04 DEVELOPMENT. All processes, ideas, technical know-how, drawings,
inventions or specifications and other similar property rights and interests
("Intellectual Property") used in or associated with the employment of the
Employee by the Employer, conceived or invented by the Employee during the
Term shall upon termination of the Employee's engagement, belong to the
Employer. Upon such termination, the Employee shall deliver to the Employer
any and all documents, including deeds, bills of sale, endorsements,
assignments, documents of title, and other instruments of transfer and
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conveyance as the Employer shall reasonably request, in form and substance
satisfactory to the Employer
5.05 REASONABLENESS OF RESTRICTIONS. Employee agrees that (a) the
covenants contained in Sections 5.01, 5.02, 5.03 and 5.04 hereof are
necessary for the protection of the Employer's business goodwill and trade
secrets, (b) a portion of the compensation paid to the Employee under this
Agreement, including the consideration payable to the Employee pursuant to
Sections 4.04 and 4.05 hereof following a termination of this Agreement, is
paid in consideration of the covenants herein contained, the sufficiency of
which consideration is hereby acknowledged, or (c) that the execution and
delivery of this Agreement was a condition precedent to the consummation of
the Purchase Transaction and that the Employer would not had either executed
either the Merger Agreement or the Asset Purchase Agreement or consummated
the Purchase Transaction or the Merger unless this Agreement and covenants
contained herein were executed by the Employee, and (e) if the scope of any
restriction contained in Sections 5.01, 5.02, 5.03 or 5.04 is too broad to
permit enforcement of such restriction to its full extent, then such
restriction shall be enforced to the maximum extent permitted by law, and the
Parties hereby consent that such scope may be judicially modified accordingly
in any proceeding brought to enforce such restriction.
5.06 ENFORCEMENT. The Employee acknowledges that (i) the restrictions
contained in Sections 5.01, 5.02, 5.03 and 5.04 hereof are reasonable and
necessary to protect the legitimate interests of the Employer and the Parent,
(ii) the Employer would not have entered into this Agreement in the absence
of such restrictions, and (iii) any violation of any provision of those
Sections will result in irreparable injury to the Employer and the Parent.
The Employee also acknowledges that the Employer and the Parent shall be
entitled to preliminary and permanent injunctive relief, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Employer may be entitled. The Employee further acknowledges that the Parent
is an intended third party beneficiary of the covenants contained herein and
may enforce such covenants without the joinder of any other person or party.
5.07 COPY OF COVENANTS. Until the expiration of the applicable
restrictions, the Employee will provide, and the Employer similarly may
provide, a copy of the covenants contained in Sections 5.01, 5.02, 5.03 and
5.04 of this Agreement to any business or enterprise which the Employee may
directly or indirectly own, manage, operate, finance, join, control or
participate in the ownership, management, operation, financing, or control
of, or serve as an officer, director, employee, partner, principal, agent,
representative, consultant, lender or otherwise, or with which he may use his
name or permit his name to be used.
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ARTICLE VI
GENERAL PROVISIONS
6.01 NOTICES. Any notices to be given hereunder by either Party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested:
If to Employer: Equity Compression Services Corporation
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
with a copy to:
Schlanger, Mills, Xxxxx & Xxxxxxxxx, LLP
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
If to Employee: Xxx XxXxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xx 00000
With a copy to:
Mayor, Day, Xxxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx Xxxxxx
Mailed notices shall be addressed to the Parties at the addresses set forth
above, but each Party may change his address by written notice in accordance
with this Section 6.01. Notices delivered personally shall be deemed
communicated as of the date of actual receipt; mailed notices shall be deemed
communicated as of ten (10) days after mailing.
6.02 ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the Parties hereto with
respect to the employment of the Employee by the Employer, and contains all
of the covenants and agreements between the Parties with respect to such
employment in any manner whatsoever.
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6.03 CERTAIN ACKNOWLEDGMENTS. The Employee by his execution and delivery
of this Agreement represents to the Employer as follows:
(i) That the Employee has been advised by the Employer to have this
Agreement reviewed by an attorney representing the Employee, and
the Employee has either had this Agreement reviewed by such
attorney or has chosen not to have this Agreement reviewed
because the Employee, after reading the entire Agreement, fully
and completely understands each provision and has determined not
to obtain the services of an attorney; and
(ii) The Employee either on his own or with the assistance and advice
of his attorney has in particular reviewed Article V and
understands and accepts that the restrictions imposed on the
Employee by Article V are reasonable and necessary for the
protection of the property rights of the Employer.
6.04 HEADINGS. The headings or titles to sections in this Agreement are
intended solely for convenience, and no provision of this Agreement is to be
construed by reference to the heading or title of any section.
6.05 AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement
may be amended, modified or waived unless such amendment, modification or
waiver is authorized by the Board of Directors and is agreed to in writing,
signed by the Employee and by an officer of the Employer (other than the
Employee) thereunto duly authorized. Except as otherwise specifically
provided in this Agreement, no waiver by any Party hereto of any breach by
any other party hereto of any condition or provision of this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or at any prior or subsequent
time; nor shall the receipt or acceptance of the Employee's employment be
deemed a waiver of any condition or provision hereof.
6.06 NO SET-OFF. There shall be no right of set-off or counterclaim, in
respect of any claim, debt or obligation, against the payments or benefits to
be made or provided for in this Agreement.
6.07 ASSIGNABILITY. The Employee shall not assign, pledge or encumber
any interest in this Agreement or any part thereof without the express
written consent of the Employer, this Agreement being personal to the
Employee. This Agreement shall, however, inure to the benefit of the
Employee's estate, dependents, beneficiaries and legal representatives. This
Agreement shall not be assignable by
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the Employer without the written consent of the Employee, which consent may
be withheld in his sole discretion, provided that if the Employer shall merge
or consolidate with or into, or transfer substantially all of its assets to,
another person or entity, then this Agreement shall continue to bind and
inure to the benefit of the successor of the Employer resulting from such
merger, consolidation or transfer, except as otherwise provided in Section
4.05.
6.08 GOVERNING LAW. This Agreement has been negotiated, executed and
delivered in the State of Texas, and shall in all respects be interpreted,
construed and governed by and in accordance with the internal substantive law
of the State of Texas.
6.09 SEVERABILITY. Each provision of this Agreement constitutes a
separate and distinct undertaking, covenant and/or provision hereof. In the
event that any provision of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed severed from this Agreement, but
every other provision of this Agreement shall remain in full force and
effect, and in substitution for any such provision held unlawful, there shall
be substituted a provision of similar import reflecting the original intent
of the Parties hereto to the extent permissible under law.
6.10 EXPENSES OF LITIGATION. If any proceeding is brought by any Party or
his or its successors or assigns for the enforcement of this Agreement, or as
a result of any alleged dispute, breach, default or misrepresentation by any
Party of any of the provisions of this Agreement, the successful or
prevailing Party shall be entitled to recover its reasonable attorneys' fees
and other costs incurred in pursuing such proceeding, in addition to such
other relief to which it may be entitled, together with interest thereon at a
rate of 10% per annum.
6.11 PARENT GUARANTEE. It is understood and agreed that the Parent will
benefit from the covenants and agreements of the Employee hereunder.
Accordingly, the Parent hereby unconditionally guarantees the performance by
the Employer of all of the Employer's obligations and agreements hereunder.
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EXECUTED at Houston, Texas, as of the day and year first above written.
EMPLOYER: OUACHITA ENERGY CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
EMPLOYEE: _________________________________
XXX XXXXXXXXX
PARENT: EQUITY COMPRESSION SERVICES
CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
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