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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), entered into as of the 15th day
of December, 1993, by and between HYDROCHEM HOLDING, INC., a Delaware
Corporation, (the "Employer") and B. XXX XXXXXX, JR., an individual (the
"Employee").
IN CONSIDERATION OF the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
(a) Employer hereby agrees to employ Employee, and Employee agrees to
be employed as Chief Executive Officer of each of Employer, its wholly-owned
subsidiary, HydroChem Industrial Services, Inc. ("HydroChem") and HydroChem's
wholly-owned subsidiary, HydroChem International, Inc. ("HCI"), during the
Period of Employment as hereinafter defined. During the Period of Employment,
Employee also agrees to serve as a Director on the Board of Directors of each
of Employer, HydroChem, HCI and one or more of their respective subsidiaries,
as well as a member of any committee of such Boards of Directors to which
Employee may be duly elected or appointed. Employer has heretofore caused
Employee to be elected to the Boards of Directors and as Chairman of the Board
and Chief Executive Officer of each of Employer, HydroChem and HCI.
(b) Subject to Section 1(c) below and except upon termination for
Cause (as defined in Section 7(a) below) or while disabled (as described in
Section 7(d) below) or in the event of Employee's death, if at any time during
the Period of Employment, the Boards of Directors or stockholders fail, without
Employee's consent, to re-elect Employee as a Director or as Chairman of the
Board and Chief Executive Officer of Employer, HydroChem or HCI, or removes
Employee from such offices or directorship, or if at any time during the Period
of Employment, Employee shall fail to be vested by the Boards of Directors of
Employer, HydroChem or HCI with the power and authority of the Chairman of the
Board and Chief Executive Officer of Employer, HydroChem or HCI or Employee
shall lose any significant rights, duties or responsibilities attending such
offices, Employee shall have the right by written notice to Employer to
terminate his services hereunder, effective as of the last day of the month of
receipt of such notice, in which event the Period of Employment shall so
terminate on such last day of the month. Such termination under such
circumstances shall be deemed pursuant to Section 7(a) below as a termination
by Employer other
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than for Cause, with all of the consequences which flow from such termination.
(c) Notwithstanding the provisions of Section 1(b) above, the Board
of Directors of Employer shall be entitled at anytime after expiration of the
first 24 months of the Period of Employment to elect another member of the
Board of Directors as Chairman of the Board of any or all of Employer,
HydroChem or HCI. In such event, Employer will continue to serve during the
remainder of the Period of Employment as the Chief Executive Officer of any
such entity without reduction of any of his duties and responsibilities and the
by-laws of the Employer, HydroChem or HCI, as the case may be, will be amended
to remove such duties and responsibilities from those assigned to the Chairman
of the Board.
2. PERIOD OF EMPLOYMENT.
The "Period of Employment" shall be for a period of five years from the
date hereof, except as otherwise provided herein.
3. DUTIES DURING THE PERIOD OF EMPLOYMENT.
Employee shall devote his full business time, attention and best efforts
to the affairs of Employer and HydroChem and their respective subsidiaries
during the Period of Employment, provided, however, that Employee may engage in
other activities, such as activities involving charitable, educational,
religious and similar types of organizations, speaking engagements, memberships
on the Board of Directors of other organizations, and similar type activities
to the extent that such other activities do not inhibit or prohibit the
performance of his duties under this Agreement and are consistent with the
provisions of Section 8 below.
4. CASH COMPENSATION.
(a) Base Salary.
Employer will pay to Employee during the Period of Employment a base
annual salary of $200,000; provided, however, it is agreed between the parties
that the Employer shall periodically review, and in light of such review may,
in the discretion of the Board of Directors of Employer, increase such base
annual salary.
(b) Bonus Payments.
(i) Upon execution of this Agreement, Employer will pay to Employee a
bonus in the amount of $150,000 in recognition of Employee's contribution to
the consummation of the acquisition by Employer of the DIS Division of Dowell
Schlumberger Incorporated.
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(ii) For calendar year 1994 and all subsequent years during the Period
of Employment, Employee shall be entitled to such bonuses as the Compensation
Committee (which shall not include any director who is an employee of Employer
or any of its subsidiaries) of the Board of Directors of Employer shall
determine from time to time based upon the attainment by Employee of the
personal objectives established for Employee by such Compensation Committee.
5. Stock option.
(a) Stock Option Plan.
Employer agrees that at a Board meeting to be called for such purpose as
soon as practicable following the date hereof, Employer shall take all required
action to (i) adopt a Stock Option Plan (the "Stock Option Plan") whereby
employees of Employer shall be eligible to be granted options ("Options") to
buy shares of the authorized and unissued shares of the common stock, $.00005
par value, of the Employer (the "Common Stock") and (ii) grant to Employee an
Option to purchase up to an aggregate of 50,000 shares of Common Stock pursuant
to the terms of the Stock Option Plan.
(b) Vesting of Options.
The Options shall vest, and Employee shall have the right to exercise
the Options in installments over a five year period commencing on the first
anniversary of this Agreement as follows:
Anniversary Percent Exercisable
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First 35%
Second 60%
Third 80%
Fourth 90%
Fifth 100%
6. OTHER EMPLOYEE BENEFITS.
(a) Vacation and Sick Leave.
Employee shall be entitled to reasonable paid vacation periods and to
reasonable sick leave in accordance with Employer policy.
(b) Regular Reimbursed Business Expense.
Employer shall reimburse Employee for all expenses and disbursements
reasonably incurred by Employee in the performance of his duties during the
Period of Employment, and such other facilities or services as Employer and
Employee may, from time to time, agree are reimbursable.
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(c) Employer's Benefit Plans or Arrangements.
In addition to the cash compensation provided for in Section 4 hereof,
Employee, subject to meeting eligibility provisions and to the provisions of
this Agreement, shall be entitled to participate in all employee benefit plans
of Employer, as presently in effect or as they may be modified or added to by
the Employer from time to time.
(d) Travel, Temporary Residence and Relocation.
Employer shall, upon receipt of appropriate documentation, pay or
reimburse Employee during the Period of Employment in amounts which, after
provision for the net amount of all income taxes payable by Employee with
respect to the receipt of such amounts, shall be equal to all out-of-pocket
expenses incurred in the reasonable discretion of Employee in traveling between
his present home in Dallas, Texas and Employer's offices in the Houston, Texas
area, and in temporarily residing in the Houston, Texas area; provided that the
aggregate of such amounts shall not exceed $125,000 in any fiscal year; and
provided further, that the character and sum of such amounts shall be subject
to annual review and approval by the Board. In addition, Employer shall
reimburse Employee in the same after tax manner for all of Employee's
reasonable out-of-pocket expenses of moving his family and their personal
effects from Dallas, Texas to the Houston, Texas area, including the closing
costs of acquiring a home; provided such move is made on or prior to the four-
year anniversary of this Agreement.
(e) Employee's Tenure.
Employee's employment with Employer shall be deemed to have commenced on
May 21, 1990 for purposes of calculating Employee's tenure in connection with
all employee benefit plans of Employer based on tenure and for all other
purposes relating to Employee's employment by Employer (it being understood
that this provision shall not apply to the Stock Option Plan described in
Section 5 above).
7. TERMINATION.
(a) Termination by Employer Other than for Cause; Voluntary
Termination; Change in Control.
If (i) Employer should terminate the Period of Employment for other than
Cause, or (ii) Employee should voluntarily terminate the Period of Employment
pursuant to Section 1(b) above, the Employer shall forthwith pay to Employee
in one lump sum an amount equal to Employee's then current base annual salary.
If (x) Employee's employment with Employer is terminated under any of the
circumstances described in the preceding Sentence or (y) a Change
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of Control shall occur, then, in any such case, the provisions of Section 8(b)
below shall have no further force or effect.
"Cause" shall mean willful misconduct in following the legitimate
directions of the Board of Directors; conviction of a felony or a crime
involving theft; habitual drunkenness; excessive absenteeism not related to
illness, sick leave or vacations, but only after notice from the Board of
Directors followed by a repetition of such excessive absenteeism; dishonesty;
conflict of interest after written notice from the Board of Directors or; a
material breach of any of the provisions of this Agreement (it being understood
that this Agreement does not prescribe a required level of performance of
Employee). For purposes of this definition the term "legitimate directions of
the Board of Directors" shall mean those directions which would not cause
Employee to commit an illegal or unethical act or to violate Employee's
fiduciary duty as an officer or director of Employer.
A "Change in Control" shall have occurred if (i) the Employer sells
substantially all of its assets, (ii) Employer merges or combines with another
entity following which Employer is not the surviving entity, or (iii) any
"person" (as such term is used in Section 13(d) of the Securities Exchange Act
of 1934, as amended) or persons acting as a group, other than the stockholders
of Employer as of December 15, 1993, becomes the beneficial owner of securities
of Employer representing twenty percent or more of the combined voting power of
the Employer's then outstanding securities and there is a reduction in the
aggregate beneficial ownership of securities of the Employer held by
stockholders of Employer as of December 15, 1993 to less than twenty percent of
the combined voting power of the Company's then outstanding securities.
(b) Resignation by Employee: Termination for Cause.
If during the Period of Employment, Employee shall exercise his right of
termination under Section 1(b) above or shall otherwise elect to resign
voluntarily, Employee shall resign as a Director and officer and as an employee
of Employer and all applicable subsidiaries of Employer. If during the Period
of Employment, Employee shall be terminated for Cause or shall voluntarily
terminate his employment (other than pursuant to Section 1(b) above), Employee
shall not be entitled to any payments from Employer or any subsidiary of
Employer subsequent to such termination date other than payments of
compensation and reimbursement of expenses for periods prior thereto.
(c) Death.
The Period of Employment shall terminate automatically upon the death of
the Employee. The Employer shall pay to the Employee's beneficiaries or estate,
as appropriate, the compensation to which Employee is entitled pursuant to
Section 4(a)
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hereof through the end of the month in which death occurs. Thereafter, the
Employer's obligations under Section 4 hereof shall terminate. Nothing in this
Section 7(c) shall affect any entitlement of the Employee's heirs to the
benefits of any life insurance plan.
(d) Disability.
If, in the reasonable judgment of the Board of Directors of Employer,
Employee shall be prevented from performing his duties hereunder in a manner
reasonably acceptable to the Board of Directors by reason of any physical or
mental incapacity (i) for a period of more than ninety (90) days in the
aggregate in any twelve-month period, (ii) forty-five (45) consecutive days in
any twelve-month period, or (iii) the Board of Directors of Employer reasonably
determines that Employee may not be expected to resume performing his duties in
a manner reasonably acceptable to the Board of Directors of Employer for a
period of forty-five (45) days, then, the Period of Employment shall terminate
on and the compensation to which Employee is entitled pursuant to Section 4(a)
hereof shall be paid up through (x) with respect to clause (i) above, the last
day of the month in which the ninetieth (90th) day of incapacity occurs, (y)
with respect to clause (ii) above, the last day of the month in which the
forty-fifth (45th) day of incapacity occurs, and (z) with respect to clause
(iii) above, the last day of the month in which the determination of incapacity
occurs and thereafter the Employer's obligations under Section 4 hereof shall
terminate. Notwithstanding the foregoing, in the event that (A) the Board of
Directors determines that, pursuant to clause (iii) of the preceding sentence,
Employee has become disabled and (B) on or prior to the forty-fifth (45th) day
following such determination Employee shall have become capable of performing
his duties pursuant to the standard contemplated in such clause (iii) above,
then Employee shall be entitled to invoke the provisions of Section 1 (b) above.
Nothing in this Section 7(d) shall affect Employee's rights under any
disability plan in which Employee is a participant.
8. Employment Provisions
(a) The Employee acknowledges that the information, observations and
data obtained by him while employed by the Employer concerning the Employer or
any of its subsidiaries ("Confidential Information") are the property of the
Employer or such subsidiary. Therefore, the Employer agrees that he shall not
disclose to any unauthorized person or use for his own account any Confidential
Information without the prior written consent of the Board, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Employee's acts or omissions to
act. Employee shall deliver to the Employer at the expiration of the Period of
Employment, or at any other time the Employer may request, all
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memoranda, notes, plans, records, reports, computer tapes and software and
other documents and data relating to the Confidential Information or the
business of the Employer or any subsidiary which he may then possess or have
under his control.
(b) The Employee acknowledges that in the course of his employment
with Employer, he will become familiar with the Employer's and any
subsidiaries' trade secrets and with other confidential information concerning
the Employer, its subsidiaries and their respective predecessors and that his
services have been and will be of special, unique and extraordinary value to
the Employer. Therefore, the Employee agrees that, during the Period of
Employment and for two years thereafter, he shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any business competing with the businesses of the Employer
or its subsidiaries as such businesses exist or are in process during and upon
the expiration of the Period of Employment, within any geographical area in
which the Employer or its subsidiaries engage in such business. Nothing herein
shall prohibit the Employee from being a passive owner of not more than 2% of
the outstanding stock of any class of a corporation which is publicly traded,
so long as the Employee has no active participation in the business of such
corporation. If, at any time of enforcement of this provision, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law.
(c) For a period of two years following the expiration of the Period
of Employment, the Employee shall not directly or indirectly through another
entity (i) induce or attempt to induce any employee of the Employer or any of
its subsidiaries to leave the employ of the Employer or such subsidiary, or in
any way interfere with the relationship between the Employer or any of its
subsidiaries and any employee thereof, (ii) hire any person who was an employee
of the Employer or any of its subsidiaries at any time during the Period of
Employment except for such employees who have been terminated for at least six
months or (iii) induce or attempt to induce any customer, supplier, licensee,
franchisor or other business relation of the Employer or any of its
subsidiaries to cease doing business with the Employer or any of its
subsidiaries, or in any way interfere with the relationship between any such
customer, supplier, licensee, franchisor or business relation, on the one hand,
and the Employer or any of its subsidiaries, on the other hand.
(d) In the event of the breach or a threatened breach by the Employee
of any of the provisions of this Section 8, the
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Employer, in addition and supplementary to other rights and remedies existing
in its favor, may apply to any court of law or equity of competent jurisdiction
for specific performance and injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or
other security).
9. GOVERNING LAW.
This Employment Agreement is governed by and is to be construed and
enforced in accordance with the laws of the State of Texas, exclusive of the
conflict of laws provisions thereof. If under such law any portion of the
Employment Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation or ordinance, such portion shall be deemed
to be modified or altered to conform thereto or, if that is not possible, to be
omitted from this Employment Agreement; and the invalidity of any such portion
shall not affect the force, effect and validity of the remaining portion
hereof.
10. NOTICES.
All notices under this Agreement shall be in writing and shall be deemed
effective when delivered in person, or forty-eight (48) hours after deposit
thereof in the U.S. mails, postage prepaid, for delivery as registered or
certified mail addressed in the case of
Employee, to: Mr. B. Xxx Xxxxxx, Jr.
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Employer, to: HydroChem Holding, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
With copies to: Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxxxxx
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
or such other address as may be stated in written notices furnished by either
of the foregoing persons to the other such person in the manner provided above.
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In lieu of personal notice or notice by deposit in the U.S. mail, a
party may give notice to the other by telegram or facsimile transmission.
11. REPRESENTATIONS AND WARRANTIES OF EMPLOYER.
Employer represents and warrants that the execution of this Agreement
has been duly authorized by resolution of its Board of Directors, and that this
Agreement constitutes a valid and binding obligation of the Employer in
accordance with its terms.
12. MISCELLANEOUS.
This Agreement and the agreements and documents contemplated hereby
constitute the entire understanding between Employer and Employee relating to
the employment of Employee by Employer and supersede and cancel all prior
written or oral agreements and understandings with respect to the subject
matter of this Agreement. This Agreement may be amended but only by a
subsequent written agreement of the parties. This Agreement shall be binding
upon and shall inure to the benefit of Employee, his heirs, executors,
administrators and beneficiaries and to the benefit of Employer and its
successors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and day first above written.
HYDROCHEM HOLDING, INC.
/s/ B. XXX XXXXXX, JR. By /s/ PELHAM X. X. XXXXX
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B. Xxx Xxxxxx, Jr. Name Pelham X. X. Xxxxx
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Title Vice President
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In consideration of the premises and other good and valuable
consideration, the undersigned hereby unconditionally guarantees the punctual
performance by HydroChem Holding, Inc. of all of its duties and obligations
under the terms of this Employment Agreement.
HYDROCHEM INDUSTRIAL SERVICES, INC.
By /s/ PELHAM X. X. XXXXX
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Name Pelham X. X. Xxxxx
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Title Vice President
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is entered into as of
January 10, 1995, by and between HydroChem Holding, Inc., a Delaware
corporation (the "Employer"), and B. Xxx Xxxxxx, Jr., an individual (the
"Employee").
RECITALS
a. Employer and Employee entered into that certain Employment
Agreement as of December 15, 1993, which provides the terms of
the employment of Employee by Employer (the "Employment
Agreement").
b. Employer and Employee desire to amend the Employment Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows.
1. Section 5(a)(ii) of the Employment Agreement is hereby amended to
read in its entirety as follows:
"(ii) grant to Employee an Option to purchase up to an aggregate of
310,390 shares of Common Stock at an exercise price of $1.00 per share pursuant
to the terms of the Stock Option Plan."
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment as of the year and day first above written.
HYDROCHEM HOLDING, INC.
/s/ B. XXX XXXXXX By: /s/ PELHAM X. X. XXXXX
------------------------- -------------------------
B. Xxx Xxxxxx, Jr. - EMPLOYEE Name: Pelham X. X. Xxxxx
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Title: Vice President
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In consideration of the premises and other good and valuable
consideration, the undersigned hereby unconditionally guarantees the punctual
performance by HydroChem Holding, Inc., of all its duties and obligations under
the terms of this First Amendment to Employment Agreement.
HYDROCHEM INDUSTRIAL SERVICES, INC.
By /s/ PELHAM X. X. XXXXX
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Name Pelham X. X. Xxxxx
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Title Vice President
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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT is entered into as of the
20th day of March, 1995, by and between HydroChem Holding, Inc., a Delaware
corporation (the "Employer") and B. Xxx Xxxxxx, Jr., an individual (the
"Employee").
RECITALS
A. Employer and Employee entered into a certain Employment Agreement as of
December 15, 1993, which as amended by a First Amendment to Employment
Agreement dated as of January 10, 1995, provides the terms of the
employment of Employee by Employer (the "Employment Agreement").
B. Employer and Employee desire to further amend the Employment Agreement
as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. SECTION 1(c) of the Employment Agreement is hereby amended by deleting
the number "24" from the third line thereof and substituting in lieu
thereof the number "36".
2. Section 6(d) of the Employment Agreement is hereby amended by deleting
the same in its entirety and substituting the following in lieu thereof:
(d) Travel, Temporary Residence and Relocation,
Employer shall, upon receipt of appropriate evidence of
payment thereof, pay or reimburse Employee during the Period of
Employment an amount or amounts which, after provision for the
net amount of all income taxes payable by Employee with respect
to the receipt of such amount or amounts, shall be equal to all
reasonable out-of-pocket expenses incurred in the reasonable
discretion of Employee in traveling between his present home in
Dallas, Texas and Employer's offices in the Houston, Texas area,
and in temporarily residing in the Houston, Texas area. In
addition, Employer shall reimburse Employee in the same after
tax manner for all of Employee's reasonable out-of-pocket
expenses of
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moving his family and their personal effects from Dallas, Texas
to the Houston, Texas area, including the closing costs of
acquiring a home; provided such move is made on or prior to the
four-year anniversary of this Agreement. The Employer, acting
through its Board of Directors, shall have the right from time
to time to review the expenses relating to the travel and
temporary living expenses of Employee and, to the extent the
Board of Directors concludes that such expenses can no longer be
justified, to negotiate an alternative arrangement with Employee
for the then remaining portion of the Period of Employment.
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment as of the year and day first above written.
HYDROCHEM HOLDING, INC.
By /s/ PELHAM X. X. XXXXX
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Name Pelham X. X. Xxxxx
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Title Vice President
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/s/ B. XXX XXXXXX
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B. Xxx Xxxxxx, Jr., an individual
In consideration of the premises and other good and valuable
consideration, the undersigned hereby unconditionally guarantees the punctual
performance by HydroChem Holding, Inc., of all its duties and obligations under
the terms of this Second Amendment to Employment Agreement.
HYDROCHEM INDUSTRIAL SERVICES, INC.
By /s/ PELHAM X. X. XXXXX
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Name Pelham X. X. Xxxxx
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Title Vice President
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THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT is entered into as of the
9th day of December, 1996, by and between HydroChem Holding, Inc., a Delaware
corporation (the "Employer") and B. Xxx Xxxxxx, Jr., an individual (the
"Employee").
RECITALS
A. Employer and Employee entered into a certain Employment Agreement
as of December 15, 1995, which as amended by a First Amendment to
Employment Agreement dated as of January 10, 1995, and a Second
Amendment to Employment Agreement dated as of March 20, 1995,
provides the terms of the employment of Employee by Employer (the
"Employment Agreement").
B. Employer and Employee desire to further amend the Employment
Agreement as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 1(b) of the Employment Agreement is hereby amended by deleting
the words "Subject to Section 1(c) below and" from the first line
thereof and replacing the word "except" which immediately follows such
deletion with the word "Except".
2. Section 1(c) of the Employment Agreement is hereby deleted in its
entirety.
IN WITNESS WHEREOF, the parties have duly executed this Third Amendment
as of the year and day first above written.
HYDROCHEM HOLDING, INC.
By /s/ PELHAM X. X. XXXXX
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Name Pelham X. X. Xxxxx
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Title Vice President
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/s/ B. XXX XXXXXX
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B. Xxx Xxxxxx, Jr., an individual
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In consideration of the premises and other good and valuable
consideration, the undersigned hereby unconditionally guarantees the punctual
performance by HydroChem Holding, Inc., of all its duties and obligations under
the terms of this Third Amendment to Employment Agreement.
HYDROCHEM INDUSTRIAL SERVICES, INC.
By /s/ PELHAM X. X. XXXXX
-------------------------
Name Pelham X. X. Xxxxx
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Title Vice President
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