Bonus Agreement
Exhibit
10.2
This
Agreement is entered into on July 2, 2007, by ThermoEnergy Corporation, a
Delaware corporation with offices located at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx
000,
Xxxxxx Xxxx, Xxxxxxxx 00000 (the “Buyer”), CASTion Corporation, a Massachusetts
corporation (“CASTion”), and Xxxxxx X. Xxxxxx (the “Agent”) as agent for certain
employees of CASTion whose name and address are set forth at the end of this
Agreement (the “Employees”).
WHEREAS,
CASTion, certain shareholders of CASTion, and the Buyer are parties to that
certain Agreement for the Purchase and Sale of Securities dated as of July
2,
2007, pursuant to which certain shareholders of CASTion will sell to the Buyer
all of the capital stock of CASTion owned by such shareholders, and all of
their
rights under certain promissory notes issued by CASTion, in exchange for a
combination of cash and securities to be issued by the Buyer (the
“Acquisition”);
WHEREAS,
CASTion employs the Employees and the Employees provide services to CASTion;
WHEREAS,
CASTion and the Buyer wish to reward the Employees for their past contributions
to CASTion; and
WHEREAS,
the execution and delivery by the Buyer of this Agreement is a condition
precedent to the consummation of the Acquisition by CASTion and its
shareholders;
NOW,
THEREFORE, in consideration of the mutual promises, agreements and provisions
contained in this Agreement, and for other good and valuable consideration,
the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Allocation
of Bonuses.
CASTion
has allocated an aggregate of $300,000 to the Employees in the respective
amounts identified on Schedule A hereto (such amounts having been determined
and
agreed to by the compensation committee of CASTion’s board of directors prior to
the consummation of the Acquisition). Such amounts shall be unvested, and no
Employee shall have any right to receive any amount under this Agreement except
as set forth herein.
2. Vesting
of Bonuses.
The
right of each Employee to receive the amount set forth opposite his or her
name
on Schedule A shall vest on the first to occur of the following events:
(a) Upon
the
consummation by the Buyer, or any of its subsidiaries (including CASTion),
of a
Financing Transaction (as defined below), the net proceeds of which to the
Buyer
or such subsidiaries, taken together with the net proceeds of all prior
Financing Transactions, but without taking into account any prepayment of the
Convertible Notes issued by the Buyer in connection with the Acquisition upon
the consummation of any Financing Transaction, is greater than $3,000,000.00,
each Employee shall vest in the right to receive his or her pro rata share
(as
determined for each employee by dividing the amount set forth opposite his
or
her name on Schedule A by $300,000) of the amount which is 1.875% of the amount
by which the net proceeds to the Buyer in such Financing Transactions exceed
$3,000,000 (the “Vested Amount”).
(b) Upon
the
consummation of a Change of Control of the Buyer, each Employee shall vest
in
the right to receive the amount set forth opposite his or her name on Schedule
A.
(c) The
vesting of rights under this Agreement shall be cumulative, but in no event
shall any Employee be entitled to receive more under this Agreement than the
amount set forth opposite his or her name on Schedule A.
3. Payment
of Bonuses.
(a) The
Buyer
shall pay, or shall cause CASTion to pay, to all Employees the Vested Amounts
immediately upon the occurrence of an event identified in Section 2(a) above.
(b) The
Buyer
shall pay, or shall cause CASTion to pay, to all Employees the amounts set
forth
opposite their respective names immediately upon the occurrence of an event
identified in Section 2(b) above, less any amount(s) previously paid under
Section 3(a).
4. Definitions.
For
purposes of this Agreement:
(a) “Financing
Transaction” shall have the definition assigned to such term in the Convertible
Notes.
(b) “Change
of Control” shall mean (i) the acquisition by any one person, or more than one
person acting as a group, of ownership of stock of the Buyer that, together
with
stock held by such person or group, constitutes more than 50 percent of the
total fair market value or total voting power of the stock of the Buyer; (ii)
the sale, conveyance, transfer or other disposition by the Buyer of all or
substantially all its property, assets or business to another person, or (iii)
the acquisition by any one person, or more than one person acting as a group
(whether in one transaction or during the 12-month period ending on the date
of
the most recent acquisition by such person or persons) of ownership of stock
of
the Buyer possessing 50 percent or more of the total voting power of the stock
of the Buyer.
5. Reductions
for Tax Withholding.
Payment
of any amounts under this Agreement shall be reduced by all required payroll
withholding and other taxes, which amounts will be paid over to applicable
tax
authorities in payment of such taxes.
6. Nature
of Relationship. This
Agreement is not an employment contract and, subject to the terms of any other
agreement between an Employee and the Buyer or CASTion, the Buyer and CASTion
reserve the right to terminate the employment of any Employee at any time with
or without cause. The termination of an Employee’s employment with Buyer or
CASTion, with or without cause, however, shall not terminate any of the
obligations of Buyer or CASTion under this Agreement, all of which shall survive
the termination of such employment.
7. Rights
under this Agreement.
No
Employee shall have any rights under this Agreement unless and until Acquisition
is consummated.
8. Concerning
the Agent.
(a) As
soon
as practicable after the consummation of the Acquisition, the Agent shall
deliver a copy of this Agreement to each Employee; provided,
however,
that in
lieu of providing a copy of Schedule A hereto, the Agent shall deliver a written
instrument to each Employee setting forth the amount to which the respective
Employee has been allocated pursuant to this Agreement. No Employee (with the
exception of the Agent) shall have any right to obtain a copy of Schedule A
in
its entirety or to learn of the amounts allocated to any other
Employee.
(b) The
Agent
shall be entitled to enforce this Agreement on behalf of the Employees, but
shall not be obligated to do so. If the Agent declines to enforce this
Agreement, he shall notify the Employees of their right to do so under Section
9
of this Agreement.
(c) The
Agent
shall not be responsible to any Employee for the payment of any sums hereunder
(other than to remit to any Employee any amount which may be paid to the Agent
on behalf of such Employee) or for any action taken or omitted to be taken
by
him hereunder or in connection herewith, except for his own gross negligence
or
willful misconduct as determined by a final non-appealable judgment of a court
of competent jurisdiction.
9. Third
Party Beneficiaries.
Each
Employee, together with his or her administrators, executors, estates and heirs,
shall be third party beneficiaries of this Agreement and shall have the right
to
enforce this Agreement with respect to such Employee.
10. Miscellaneous.
(a) This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original and all of which together will constitute one
instrument.
(b) If
any
provision of this Agreement is invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability in every other respect of such
provision and of the remaining provisions shall not in any way be affected
or
impaired thereby. If a court determines that any provision herein is invalid,
illegal or unenforceable, for any reason, such provision shall be deemed amended
to the extent necessary to comply with such determination, and such provision,
as so amended, shall be valid and binding as though the invalid, illegal or
unenforceable portion had not been included herein.
(c) This
Agreement constitutes the complete, final and exclusive statement of the
agreement between the parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No amendment, supplement, modification,
rescission or waiver of this Agreement shall be binding unless executed in
writing by the parties. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a continuing waiver unless otherwise
expressly provided. The parties expressly acknowledge that they have not relied
upon any prior agreements, understandings, negotiations and discussions, whether
oral or written.
(d) This
Agreement shall be binding upon and shall inure to the benefit of the parties,
their successors, assigns and legal representatives. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. Any action or proceeding arising out of or related to this
Agreement may be brought in the state or federal courts which have jurisdiction
over Middlesex County in the Commonwealth of Massachusetts.
IN
WITNESS WHEREOF, the parties hereby execute this Agreement as of the date set
forth below.
| THERMOENERGY CORPORATION | CASTION CORPORATION | |||
| By: | /s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Authorized Signature |
Authorized Signature |
|||
| Name: |
Xxxxxx X. Xxxxxx
|
Name: | Xxxxxxx X. Xxxxxx | |
| Title: | EVP and CFO | Title: | CEO | |
/s/
Xxxxxx
X. Xxxxxx
Xxxxxx X. Xxxxxx
As
Agent
for the Employees
SCHEDULE
A
|
Employee
|
Amount
of Bonus
|
|||
|
Xxxxxxx
X. Xxxxxx
|
$
|
200,000.00
|
||
|
Xxxxxx
Xxxxx
|
30,000.00
|
|||
|
Xxxx
Xxxxx
|
20,000.00
|
|||
|
Xxxx
Xxxx
|
20,000.00
|
|||
|
Xxxxxx
Xxxxxx
|
20,000.00
|
|||
|
Xx
Xxxxxxxxx
|
10,000.00
|
|||
|
Total
|
$
|
300,000.00
|
||
