Exhibit 10.24
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is entered into as of April
9, 2004 by and among Celerity Group, Inc., formerly Kinetics Holdings
Corporation, a Delaware corporation ("KHC"), Kinetics Group, Inc., a Delaware
Corporation ("KGI"), Celerity Group, Inc., a California corporation formerly
known as Kinetics Fluid Systems, Inc., ("KFS") and Kinetic Systems, Inc., a
California corporation ("KSI" and together with KHC, KGI and KFS, the "Kinetics
Entities") and KH LLC, a Delaware limited liability company ("KH LLC').
RECITALS
A. WHEREAS, KH LLC will perform services for and provide management
services for the Kinetics Entities (the "Services");
B. WHEREAS, KH LLC will incur costs and expenses, including those of
its professional advisors, in performing the Services.
NOW, THEREFORE, in consideration of the foregoing and the following
covenants and agreements and for good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. REIMBURSEMENT AND INTEREST, (a) Reimbursement of KH LLC by
Kinetics Entities. Each Kinetics Entity jointly and severally agrees to pay KH
LLC, or cause to be paid to KH LLC, a sum equal to the amount paid by KH LLC in
performing the Services, which payment shall become due and payable immediately
upon the demand of KH LLC. All amounts under this Section 1 shall be paid in
U.S. Dollars without set-off, claim or counterclaim in immediately available
funds. The obligations of Kinetics Entities hereunder to reimburse KH LLC shall
be absolute, irrevocable and unconditional and shall be performed strictly in
accordance with the terms hereof, irrespective of any lack of validity or
enforceability of the obligation of KH LLC or any other event or circumstance.
(b) Allocation of costs among Kinetics Entities. Costs
incurred by KH LLC shall be allocated as follows: (i) first to the Kinetics
Entity on whose behalf the costs were incurred and (ii) second in accordance
with the allocations set forth on Annex 1 hereto. The allocations specified
above shall not limit KH LLC's ability to obtain reimbursement of the full
amounts owed from any Kinetics Entity for the Services.
(c) Reimbursement of Kinetics Entity Making Payment. In the
event that a Kinetics Entity ("Paying Entity") makes payment of an obligation
that is allocated to another Kinetics Entity ("Owing Entity") pursuant to
Section l(b) above, the Owing Entity agrees to pay to the Paying Entity, or to
cause to be paid to such Paying Entity, a sum equal to each amount paid by such
Paying Entity in accordance with this Agreement, which payment shall become due
and payable immediately upon the earlier of (i) demand of such Paying Entity and
(ii) the date that is five (5) days after the payment by such Paying Entity. All
amounts under this Section l(c) shall be paid in U.S. Dollars without set-off,
claim or counterclaim in immediately available funds to such Paying Entity.
(d) Maximum Reimbursement Amount. Reimbursement to pay
expenses of KH LLC (i) from the date hereof until a Qualifying Event shall not
to exceed $750,000 (exclusive of any fees or expenses associated with such
Qualifying Event that are not otherwise paid or payable by any Kinetics Entity)
and (ii) in each fiscal year following such Qualifying Event shall not to exceed
$400,000 in any such fiscal year (exclusive of any fees or expenses associated
with such Qualifying Event that are not otherwise paid or payable by any
Kinetics Entity); provided that if the Services exceed such limitations the
parties will discuss in good faith changing or modifying such limitations. A
Qualifying Event shall mean a public offering by KHC in which the aggregate
public offering price (before deduction of underwriters' discounts and
commissions) equals or exceeds one hundred million dollars ($100,000,000).
2. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior arrangements and understandings (whether written or
oral) with respect thereto. Amendment or modification of this Agreement shall
require the written agreement of the parties hereto.
3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
4. NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered by personal delivery, overnight courier, telecopier or registered or
certified mail, return-receipt requested and postage prepaid addressed as
follows:
If to KGI to:
Kinetics Group, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to KSI, to:
Kinetic Systems, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to KFS to:
Kinetics Fluid Systems, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
2
If to KHC, to:
Celerity Group, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to KH LLC
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Officer
Facsimile: (000) 000-0000
and any such communication shall be deemed to be given, made or served as of the
date so delivered or, in the case of any communication delivered by mail, as of
the date so received.
5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO SUCH STATE'S CHOICE OF LAW PROVISIONS.
6. ASSIGNMENT. No party may assign its rights or obligations
hereunder without the express written consent of the other parties hereto.
Subject to the foregoing, this Agreement will benefit and bind the successors
and assigns of the parties. No party will be a third party beneficiary of this
Agreement.
7. NO AGENCY. The parties hereto are independent contractors.
This Agreement will not be construed as creating an agency, partnership or any
other form of legal association (other than as expressly set forth herein)
between the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have entered into this
Reimbursement Agreement as of the date first written above and duly authorized
officers of each party have executed this Agreement at the location indicated
below.
CELERITY GROUP, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name:_______________________________________
Its:________________________________________
KINETICS GROUP, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxx
Name:_______________________________________
Its:________________________________________
KINETIC SYSTEMS, INC., a California
corporation
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name:_______________________________________
Its:________________________________________
CELERITY GROUP, INC., a California
corporation
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name:_______________________________________
Its:________________________________________
[SIGNATURE PAGE TO KH LLC REIMBURSEMENT AGREEMENT]
KH LLC
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name:_______________________________________
Its:________________________________________
[SIGNATURE PAGE TO AMENDED AND RESTATED REIMBURSEMENT AGREEMENT]
Annex 1
Service Default Allocations
Guarantor Percentage
-----------------------------------------------
Celerity Group, Inc. 50%
Kinetic Systems, Inc. 50%
------
TOTAL 100.00%
