{"id":39108,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-encompass-management-co-encompass10.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-encompass-management-co-encompass10","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-encompass-management-co-encompass10.html","title":{"rendered":"Employment Agreement &#8211; Encompass Management Co., Encompass Services Corp. and James Patrick Millinor Jr."},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n                                        \n     This Employment Agreement (this \"Agreement\") is effective as of \nMarch 28, 2000, among Encompass Management Co., a Delaware corporation (the\n\"Company\"), Encompass Services Corporation, a Texas corporation (\"Encompass\"),\nand James Patrick Millinor, Jr., a resident of Harris County, Texas\n(\"Employee\"). In consideration of the premises and the mutual covenants\ncontained herein, the parties hereby agree as follows:\n\n    1.   Employment. The Company hereby agrees to employ Employee and \nEmployee hereby agrees to work for the Company as its Chairman. Employee's\nprincipal office shall be in Houston, Texas. Employee will initially have direct\nsupervisory responsibility and authority for the matters set forth on Exhibit A.\nSo long as Employee is employed by the Company, Employee shall devote Employee's\nskill, energy and substantially all of his business-related efforts to the\nfaithful discharge of Employee's duties as an employee of the Company. In\nproviding services hereunder, Employee shall comply with and follow all\ndirectives, policies, standards and regulations from time to time established by\nthe Board of Directors of the Company.\n\n    2.   Term of Employment. Employee's employment by the Company pursuant to \nthis Agreement shall continue in effect for a term of three years from the date\nof this Agreement (the \"Initial Period\"), which shall be automatically extended\nfor additional, successive one year periods (the \"Additional Periods\")\ncommencing on the first anniversary date of this Agreement and on each\nanniversary date thereafter, unless either party gives notice of non-renewal as\nprovided in Section 9(e) or otherwise terminates this Agreement in accordance\nwith the other provisions of Section 9.\n\n    3.   Representations and Warranties. Employee represents and warrants that\nEmployee is under no contractual or other restrictions or obligations that will\nsignificantly limit Employee's activities on behalf of the Company or will\nprohibit or limit the disclosure or use by Employee of any information which\ndirectly or indirectly relates to the nature of the Company or the services to\nbe rendered by Employee under this Agreement.\n\n    4.   Compensation. Subject to the provisions of Section 9, Employee will be\nentitled to the compensation and benefits set forth in this Section 4.\n\n         (a)  During the Initial Period, the Company shall pay Employee an \nAnnual Base Salary, payable semi-monthly, in equal semi-monthly installments at\na rate equal to $425,000 per year for the first calendar year or portion\nthereof. In each subsequent calendar year during the term of this Agreement, the\nCompany shall pay to Employee an Annual Base Salary determined by the Board of\nDirectors following its annual salary and performance review. Employee's Annual\nBase Salary will be reviewed at least annually in the third quarter of each\nfiscal year of Employee's employment hereunder, commencing in the third quarter\nof fiscal year 2000.\n\n \n         (b)  Employee shall be eligible to receive an annual bonus pursuant to\nthe incentive compensation program in effect from time to time for executive\nemployees of the Company. The target bonus of Employee under such program shall\nnot be less than 120% of Employee's annual salary. The actual bonus paid for any\ngiven period will be calculated in accordance with the bonus plan then in place,\nand such actual bonus may be more or less than the target bonus. The bonus will\nbe earned for Employee's performance during each calendar year but will be\nfinally determined and paid following the closing of the books and records of\nthe Company for the calendar year and review of same by the Compensation\nCommittee of the Company and the Company's independent auditors.\n\n         (c)  All payments of salary and other compensation to Employee shall \nbe made after deduction of any taxes required to be withheld with respect\nthereto under applicable federal and state laws.\n\n    5.   Fringe Benefits; Expenses. (a) During the term of employment of \nEmployee hereunder, Employee shall participate in all employee benefit plans\nsponsored by the Company for its executive employees, including but not limited\nto stock bonus, stock purchase, stock performance incentive and stock option\nplans, sick leave and disability leave, health insurance, dental insurance and\npension and\/or profit sharing plans; provided, however, that except as provided\nbelow, the nature, amount and limitations of such plans shall be determined from\ntime to time by the Board of Directors of the Company.\n\n         (b)  The Company will reimburse Employee for all reasonable business \nexpenses incurred by Employee in the scope of Employee's employment; provided,\nhowever, that Employee must file expense reports with respect to such expenses\nin accordance with the Company's policies as are in effect from time to time.\n\n         (c) During the term of employment of Employee hereunder, Employee \nshall be entitled to a minimum of five weeks paid vacation during each calendar\nyear and to paid holidays and other paid leave set forth in the Company's\npolicies in effect from time to time. Any vacation not used during a calendar\nyear may not be used during any subsequent period.\n\n         (d)  During the term of employment of Employee hereunder, the Company \nwill pay all license fees, occupation taxes and reasonable educational costs and\nexpenses necessary to maintain Employee's good standing under any professional\nlicenses related to the business of the Company.\n\n         (e) During the term of employment of Employee hereunder, the Company\nshall use reasonable efforts to provide (i) life insurance payable to Employee's\ndesignated beneficiary in an amount at least three times Employee's Annual Base\nSalary and (ii) disability insurance on behalf of Employee which, as a goal,\nshall provide for salary continuation in the event of permanent disability in an\namount equal to the lesser of (i) 60% of Employee's Annual Base Salary, or (ii)\n$20,000 per month.\n\n                                       2\n\n \n    6.   Indemnification and Insurance. The Company shall indemnify Employee\nwith respect to matters relating to Employee's services as an officer and\/or\ndirector of the Company or any of its Affiliates (as defined in Exhibit B\nattached hereto) to the extent set forth in the Company's By-laws and in\naccordance with the terms of any other indemnification which is generally\napplicable to executive officers of the Company or any of its Affiliates that\nmay be provided by the Company or any such Affiliate from time to time. The\nforegoing indemnity is contractual and will survive any adverse amendment to or\nrepeal of the By-laws. The Company will also cover Employee under a policy of\nofficers' and directors' liability insurance providing coverage that is\ncomparable to that provided now or hereafter to any other executive officer or\ndirector of the Company. The provisions of this Section 6 will survive the\ntermination of Employee's employment for any reason and the term of this\nAgreement.\n\n    7.   Gross-Up of Parachute Payments.\n\n         (a)  To provide Employee with adequate protection in connection with\nEmployee's ongoing employment with the Company, this Agreement or other\nincentive plans of the company provide Employee with various benefits in the\nevent of termination of Employee's employment with the Company. If Employee's\nemployment is terminated within the meaning of Section 2806 of the Internal\nRevenue Code of 1986, as amended (the \"Code\"), a portion of those benefits could\nbe characterized as \"excess parachute payments\" within the meaning of Section\n2806 of the Code. The parties hereto acknowledge that the protections set forth\nin this Section 7 are important, and it is agreed that Employee should not have\nto bear the burden of any excise tax that might be levied under Section 4999 of\nthe Code or any similar provision of state or federal law, in the event that any\nportion of the benefits payable to Employee pursuant to this Agreement or other\nincentive plans of the Company are treated as an excess parachute payment. The\nparties, therefore, have agreed as set forth in this Section 7. Employee and\nCompany agree to use their best efforts to structure any payments to Employee so\nthat they minimize or eliminate \"excess parachute payments\" as defined in\nSection 2806 of the Code.\n\n         (b)  Anything in this Agreement to the contrary notwithstanding, if it\nshall be determined that any payment or distribution (including income\nrecognized by Employee upon the early vesting of restricted property or upon the\nexercise of options whose exercise date has been accelerated) by the Company or\nany other person to or for the benefit of Employee (whether paid or payable or\ndistributed or distributable pursuant to the terms of this Agreement or\notherwise, but determined without regard to any additional payments required\nunder this Section 7) (a \"Payment\") would be subject to the excise tax imposed\nby Section 4999 of the Code or any similar provision of state or federal law or\nany interest or penalties are incurred by Employee with respect to such excise\ntax (such excise tax, together with any such interest and penalties, are\nhereinafter collectively referred to as the \"Excise Tax\"), then the Company\nshall pay an additional payment (a \"Gross-Up Payment\") in an amount such that\nafter payment by Employee of all taxes (including any interest or penalties\nimposed with respect to such taxes), including, without limitation, any income\ntaxes (and any interest and penalties imposed with respect thereto) and Excise\nTax imposed on the Gross-Up Payment, Employee retains an amount of the Gross-Up\nPayment equal to the Excise Tax imposed on the Payments.\n\n                                       3\n\n \n         (c)  Subject to the provisions of Section 7(d) below, all\ndeterminations required to be made under this Section 7, including whether and\nwhen a Gross-Up Payment is required and the amount of such Gross-Up Payment and\nthe assumptions to be utilized in arriving at such determination, shall be made\nby the Company's primary independent public accounting firm (the \"Accounting\nFirm\") that shall provide detailed supporting calculations both to the Company\nand to Employee within 15 business days after the receipt of notice from\nEmployee that there has been a Payment, or such earlier time as is requested by\nthe Company. In the event that the Accounting Firm is serving as accountant or\nauditor for the individual, entity or group effecting the change in control of\nthe Company, the Company may appoint another nationally recognized accounting\nfirm to make the determinations required hereunder (which accounting firm shall\nthen be referred to as the Accounting Firm hereunder). All fees and expenses of\nthe Accounting Firm shall be borne solely by the Company. The Company shall\nindemnify and hold harmless Employee, on an after-tax basis, for any Excise Tax\nor income tax (including interest and penalties with respect thereto) imposed on\nEmployee as a result of such payment of fees and expenses. Any Gross-Up Payment,\nas determined pursuant to this Section 7, shall be paid by the Company to\nEmployee within five days of the receipt of the Accounting Firm's determination.\nIf the Accounting Firm determines that no Excise Tax is payable by Employee, it\nshall furnish Employee with a written statement that failure to report the\nExcise Tax on Employee's applicable federal income tax return would not result\nin the imposition of a negligence or similar penalty. Any determination by the\nAccounting Firm shall be binding on the Company and Employee. As a result of\nuncertainty in the application of Section 4999 of the Code at the time of the\ninitial determination by the Accounting Firm hereunder, it is possible that\nGross-Up Payments may not have been made by the Company that should have been\nmade (\"Underpayment\"), or vice versa (\"Overpayment\"), consistent with the\ncalculations required to be made hereunder. If the Company exhausts its remedies\npursuant to Section 7(d) below and Employee thereafter is required to make a\npayment of any Excise Tax, the Accounting Firm shall determine the amount of the\nUnderpayment that has occurred and any such Underpayment shall be promptly paid\nby the Company to or for the benefit of Employee. If an Overpayment has\noccurred, the Employee will promptly reimburse the Company for such amount.\n\n         (d)  Employee shall notify the Company in writing of any claim \n(including any threatened tax lien related to or based on any such claims) by\nthe Internal Revenue Service that, if successful, would require the payment by\nthe Company of the Gross-Up Payment. Such notification shall be given as soon as\npracticable but no later than 10 business days after Employee is informed in\nwriting of such claim (or threatened lien) and shall apprize the Company of the\nnature of such claim and the date on which such claim is requested to be paid.\nEmployee shall not pay such claim prior to the expiration of the 30-day period\nfollowing the date on which Employee gives such notice to the Company (or such\nshorter period ending on the date that any payment of taxes with respect to such\nclaim is due or such tax lien would be imposed). If the Company notifies\nEmployee in writing prior to the expiration of such period that it desires to\ncontest such claim (or threatened lien), Employee shall:\n\n              (i)   give the Company any information reasonably requested by \n    the Company relating to such claims (or threatened lien);\n\n                                       4\n\n \n              (ii)  take such action in connection with contesting such claim \n    (or threatened lien) as the Company shall reasonably request in writing from\n    time to time, including, without limitation, accepting legal representation\n    with respect to such claim by an attorney reasonably selected by the\n    Company;\n\n              (iii) cooperate with the Company in good, faith in order\n    effectively to contest such claim (or threatened lien); and\n\n              (iv)  permit the Company to participate in any proceedings \n    relating to such claims (or threatened lien); provided, however, that the\n    Company shall bear and pay directly all costs and expenses (including legal\n    fees and expenses, additional interest and penalties) incurred in connection\n    with such contest and shall indemnify and hold Employee harmless, on an\n    after-tax basis, for any Excise Tax or income tax (including interest and\n    penalties with respect thereto) imposed as a result of such representation\n    and payment of costs and expenses. Without limitation on the foregoing\n    provisions of this Section 7(d), the Company shall control all proceedings\n    taken in connection with such contest and, at its sole option, may pursue or\n    forego any and all administrative appeals, proceedings, hearings and\n    conferences with the taxing authority in respect of such claim and may, at\n    its sole option, either direct Employee to pay the tax claimed and sue for a\n    refund or contest the claim in any permissible manner, and Employee shall\n    prosecute such contest to a determination before any administrative\n    tribunal, in a court of initial jurisdiction and in one or more appellate\n    courts, as Employee shall determine (but in no event shall the Company\n    permit or direct Employee to allow a tax lien to be imposed on Employee's\n    property); provided, further, that if the Company directs Employee to pay\n    such claim and sue for a refund, the Company shall advance the amount of\n    such payment to Employee, on an interest-free basis, and shall indemnify and\n    hold Employee harmless on an after-tax basis, from any Excise Tax or income\n    tax (including interest or penalties with respect thereto) imposed with\n    respect to such advance or with respect to any imputed income with respect\n    to such advance; and provided, further, that any extension of the statute of\n    limitations relating to payment of taxes for the taxable year of Employee\n    with respect to which such contested amount is claimed to be due is limited\n    solely to such contested amount. In addition, the Company's control of the\n    contest shall be limited to issues with respect to which a Gross-Up Payment\n    would be payable hereunder, and Employee shall be entitled to settle or\n    contest, as the case may be, any other issue raised by the Internal Revenue\n    Service or any other taxing authority.\n\n         (e)  If, after the receipt by Employee of an amount advanced by the\nCompany pursuant to Section 7(d), Employee becomes entitled to receive any\nrefund with respect to such claim, Employee shall (subject to the Company's\ncomplying with the requirements of Section 7(d) above) promptly pay to the\nCompany the amount of such refund (together with any interest paid or credited\nthereon after taxes applicable thereto). If after the receipt by Employee of an\namount advanced by the Company pursuant to Section 7(d) above, a determination\nis made that Employee shall not be entitled to any refund with respect to such\nclaim and the Company does not notify Employee in writing of its intent to\ncontest such denial of refund prior to the expiration of 30 days after such\ndetermination, then such advance shall be forgiven and shall not be required\n\n                                       5\n\n \nto be repaid and the amount of such advance shall offset, to the extent thereof,\nthe amount of Gross-Up Payment required to be paid.\n\n    8.   Options and Other Stock-Related Plans. Except to the extent otherwise\nprovided in this Section 8, the terms and conditions of any option, stock bonus,\nrestricted stock, stock award or other stock-related plan or program with\nrespect to capital sock of the Company which may be granted to Employee or in\nwhich Employee may participate shall be governed by the applicable Company plan,\nif any, and\/or separate agreement(s) between the Company and Employee with\nrespect thereto.\n\n         (a)  All stock options theretofore granted to the Employee will vest \nupon a termination of this Agreement under Section 9(c); or in the event of a\nChange of Control, six months after such Change of Control (assuming Employee\nhas not by the end of the sixth month waived such rights, been terminated for\nCause, or resigned without Good Reason); except that vesting under this\nparagraph will not take place if the termination of this Agreement occurs as\ndefined in Section 9(b).\n\n         (b)  Upon the occurrence of any of the events described in \nSection 8(a) above, the exercise period of each stock option then held by the\nEmployee shall be the greater of (i) the balance of the then remaining term of\nthis Agreement, or (ii) ninety (90) days from the date of termination, but in\nneither event beyond the unexpired term of such option as set forth in the\nrespective plan or option agreement under which such option was initially\ngranted.\n\n         (c)  The period for exercising any Founder Options (as defined in \nExhibit B) held by the Employee shall be the remainder of the ten-year term of\nsuch Founder Options, as provided in the option agreement under which such\nFounder Options were initially granted.\n\n         (d)  Except as otherwise provided in Section 8(b) or 8(c) above, the \nexercise period for stock options held by the Employee at the time of any\ntermination of the Agreement shall be the greater of (i) ninety (90) days from\nthe effective date of termination of employment, or (ii) the exercise period\nestablished in or under the terms of the stock option plan or stock option\nagreement to which such stock options are subject, or (iii) the exercise period\nestablished in or under the terms of any other written agreement between the\nEmployee and the Company with respect to such stock options.\n\n    9.   Termination or Non-Renewal of Employment.\n\n         (a)  Termination by Either Party; General Provisions. Either the \nCompany\n\n                                       6\n\n \nor Employee may terminate Employee's employment hereunder at any time during the\nterm of this Agreement by delivery of sixty (60) days prior written notice by\nthe terminating party to the other party. Promptly after such termination of\nemployment, in addition to any other payments or benefits provided in this\nSection 9, the Company shall pay to Employee an amount equal to the sum of (i)\nEmployee's earned but unpaid Annual Base Salary through the date of termination\nof employment at the rate in effect at the time of such termination, (ii)\nvacation pay earned but not taken to the date of such termination, and (iii) all\nother amounts previously deferred by Employee or earned but not paid as of such\ndate under all Company incentive or deferred compensation plans or programs.\n\n         (b)  Termination for Cause; Resignation without Good Reason. If the\nCompany terminates Employee's employment for Cause, or if the Employee\nterminates employment without Good Reason, the payments due to Employee shall be\nlimited to the amounts described in Section 9(a).\n\n         (c)  Termination Without Cause; Termination for Good Reason. If the\nCompany terminates Employee's employment without Cause (except as provided in\nSection 9(d) below), or if the Employee terminates Employee's employment for\nGood Reason, then the Company shall promptly pay or otherwise provide to\nEmployee the following amounts in addition to those set forth in Section 9(a):\n\n              (i)   An amount equal to three times the sum of (A) Employee's \n    Annual Base Salary then in effect and (B) Employee's actual bonus for the\n    fiscal year prior to the one in which such termination occurs (for 1999,\n    such bonus is considered to be $450,000), payable in a single lump sum by\n    certified or bank cashier's check within 30 days of such termination; and\n\n              (ii)  An amount equal to the product of (A) the maximum monthly \n    premium payment that may be charged to continue coverage for Employee and\n    Employee's dependents under the Company's health insurance plan under COBRA,\n    and under all life, dental and disability insurance policies provided by\n    Employer for Employee multiplied by (B) the number of months remaining until\n    Employee becomes eligible for Medicare coverage (payable over such period).\n    The Company will use its best efforts to keep the policies of insurance\n    referred to in this clause in effect for the benefit of the Employee through\n    the entire period being funded. Payments under this clause (ii) will cease\n    if Employee secures substantially similar coverage under new employment.\n\n         (d)  Termination on Disability. If at any time during the term of \nEmployee's\n\n                                       7\n\n \nemployment hereunder, Employee is unable due to physical or mental disability to\nperform effectively Employee's duties hereunder, the Company shall continue\npayment of (1) compensation as provided in Section 4(a) and (2) health, dental,\ndisability and life insurance benefits as provided in Section 5 of this\nAgreement during the first 12 month period of such disability to the extent not\ncovered by the Company's disability insurance policies (the Company may offset\nagainst its obligations in this sentence the amounts actually received by the\nEmployee under such policies). Upon the expiration of such 12 month period, the\nCompany, at its sole option, may continue payment of Employee's salary and\nbenefits for such additional periods as the Company elects, or may terminate\nEmployee's employment hereunder without any further compensation obligations to\nEmployee hereunder; provided, however, in the event of termination due to\ndisability under this clause, the Company shall continue Employee's health,\ndental and life insurance coverage, at levels similar to those in effect as of\nthe date of termination, until Employee becomes eligible for Medicare coverage.\nBenefits coverage by the Company under this clause (d) will cease if similar\ncoverage is obtained by Employee under new employment. If Employee should die\nduring the term of Employee's employment hereunder, Employee's employment and\nthe Company's obligations hereunder for compensation and benefit payments shall\nterminate as of the end of the month in which Employee's death occurs.\n\n         (e)  Non-Renewal of Employment; General Provisions. Either the \nCompany or Employee may elect not to renew Employee's employment hereunder at\nthe end of the Initial Period, or at the end of any Additional Period\nthereafter, by delivery of sixty (60) days prior written notice by the electing\nparty to the other party. At the expiration of the employment term (in addition\nto any other amounts provided in Section 9(c) above in the case of a non-renewal\nby the Company), the Company shall pay to Employee an amount equal to the sum of\n(i) Employee's earned but unpaid Annual Base Salary through the date of\ntermination of employment at the rate then in effect, (ii) vacation pay earned\nbut not taken to the date of such termination, and (iii) all other amounts\npreviously deferred by Employee or earned but not paid as of such date under all\nCompany incentive or deferred compensation plans or programs.\n\n         (f)  Change in Responsibilities Upon Mutual Agreement. If at any time \nduring the term of this Agreement Employee and a majority of the Board of\nDirectors mutually agree that Employee will turn over all of Employee's\nexecutive responsibilities to the then Chief Executive Officer (\"Date of\nChange\"), then Employee will immediately assume the role of nonexecutive\nChairman of the Board and will retain all the benefits and protections contained\nin this Agreement for the then remaining term of this Agreement (assuming no\nAdditional Periods) as if such change had not occurred. At the end of the then\nremaining term of this Agreement (assuming no Additional Periods), (1) benefits\nwill be continued as described in Section 9(c)(ii) above, (2) all options held\nby Employee at Date of Change will vest and will have a minimum exercise period\nof one year from the date this Agreement expires, and (3) Employee will be\nfurther compensated only in accordance with his continuing position with the\nCompany. Upon the expiration of this Agreement as described by this paragraph\n(f), neither the Employee nor the Company will have any other continuing\nobligations (beyond those described in this paragraph (f)) to one another except\nfor those specified in Sections 11, 12, and 13 of this Agreement.\n\n         (g)  Waiver of Claims. In the event this Agreement expires as a \nresult of non-\n\n                                       8\n\n \nrenewal by the Company, or is terminated by the Company without Cause or as a\nresult of a disability of Employee in accordance with Section 9(d), or is\nterminated by Employee with Good Reason, Employee agrees to accept, in full\nsettlement of any and all claims, losses, damages and other demands that\nEmployee may have arising out of such termination or non-renewal, as liquidated\ndamages and not as a penalty, the payments, benefits and vesting of rights set\nforth in this Agreement. Employee hereby waives any and all rights Employee may\nhave to bring any cause of action or proceeding contesting any such termination\nor non-renewal; provided, however, that such waiver shall not be deemed to\naffect Employee's rights to enforce any other obligations of the Company not\nrelating to employment.\n\n         (h)  Lock-ups, etc. During the period of one (1) year after an event \nas defined in Section 9(c) above, Employee shall sign any lock-up letters,\nstandstill agreements, or other similar documentation specifically required by\nan underwriter from Employee in connection with a public offering of securities\nby the Company or take other actions reasonably related thereto as requested by\nthe Board of Directors of the Company; provided, however, that the period of any\nsuch lock-up or standstill agreements shall not exceed the shorter of (i) 180\ndays or (ii) the balance of the one (1) year period. In the event Employee fails\nto sign any such letters, agreements or similar documentation or take any such\naction, the Company may seek and obtain specific performance of such covenant,\nincluding any injunction requiring execution thereof or the taking of any such\nactions, and Employee hereby appoints the then president of the Company in\noffice from time to time to sign any such documents on Employee's behalf so long\nas such documents are prepared on the same basis as other shareholders generally\nor as all Company management shareholders.\n\n    10.  No Mitigation Obligation. The Company acknowledges that it will be \ndifficult and may be impossible (i) for Employee to find reasonably comparable\nemployment following termination of Employee's employment and (ii) to measure\nthe amount of damages which Employee may suffer as a result of the termination\nof Employee's employment. Accordingly, all amounts paid to Employee under this\nAgreement following Employee's termination of employment are acknowledged by the\nCompany to be reasonable and to be liquidated damages, and Employee will not be\nrequired to mitigate the amount of such payments by seeking other employment or\notherwise, nor will any profits, income, earnings or other benefits from any\nsource whatsoever (including from other employment) create any mitigation,\noffset, reduction or any other obligation on the part of Employee under this\nAgreement, except as described in Sections 9(c)(ii) and 9(d).\n\n    11.  Covenant Not to Compete.\n\n         (a)  During Employee's employment with the Company or any of its \nAffiliates and thereafter during the Restricted Period (as defined in Exhibit B\nattached hereto), Employee will not engage in or carry on, directly or\nindirectly, either for himself or as a member of a partnership or as a\nshareholder, investor, owner, officer or director of a company or other entity,\nor as an employee, agent, associate or consultant of any person, partnership,\ncorporation or other entity, any business in any State of the United States or\nin any other part of the world that directly competes with any services or\nproducts produced, sold, conducted, developed, or in the\n\n                                       9\n\n \nprocess of development by the Company or its Affiliates on the date of\ntermination of Employee's employment.\n\n         (b)  Notwithstanding the foregoing, Employee shall not be deemed to \nbe in violation of Section 12(a) based solely on the ownership of less than one\npercent of any class of securities of a publicly-held company whose gross assets\nexceed $l00,000,000.\n\n         (c)  Employee acknowledges that the limitations set forth herein on \nEmployee's rights to compete with the Company and its Affiliates are reasonable\nand necessary for the protection of the Company and its Affiliates. In this\nregard, Employee specifically agrees that the limitations as to period of time\nand geographic area, as well as all other restrictions on Employee's activities\nspecified herein, are reasonable and necessary for the protection of the Company\nand its Affiliates. In particular, Employee acknowledges that the parties\nanticipate that Employee will be actively seeking markets for the products and\nservices of the Company and its Affiliates throughout the United States during\nEmployee's employment with the Company.\n\n         (d)  In the event that there shall be any violation of the covenant \nnot to compete set forth in this Section 11, then the time limitation thereof\nshall be extended for a period of time equal to the period of time during which\nsuch violation continues; and in the event the Company is required to seek\nrelief from such violation in any court, board of arbitration or other tribunal,\nthen the covenant shall be extended for a period of time equal to the pendency\nof such proceedings, including all appeals.\n\n         (e)  Employee agrees that the remedy at law for any breach by \nEmployee of this Section 11 will be inadequate and that the Company shall also\nbe entitled to injunctive relief.\n\n    12.  Confidential Information. During the term of Employee's employment\nhereunder, and for five years after Employee's termination of employment,\nEmployee shall not use or disclose, without the prior written consent of the\nCompany, Confidential Information (as defined in Exhibit B attached hereto)\nrelating to the Company or any of its Affiliates, and upon termination of\nEmployee's employment will return to the Company all written materials in\nEmployee's possession embodying such Confidential Information. Employee will\npromptly disclose to the Company all Confidential Information, as well as any\nbusiness opportunity related to the Company which comes to Employee's attention\nduring the term of Employee's employment with the Company. Employee will not\ntake advantage of or divert any such business opportunity for the benefit of\nEmployee or any other Person (as defined in Exhibit B attached hereto) without\nthe prior written consent of the Company. Employee agrees that the remedy at law\nfor any breach by Employee of this Section 12 will be inadequate and that the\nCompany shall also be entitled to injunctive relief.\n\n    13.  Intellectual Property.\n\n         (a)  To the extent they relate to, or result from, directly or \nindirectly, the actual or anticipated operations of the Company or any of its\nAffiliates, Employee hereby agrees that all patents, trademarks, copyrights,\ntrade secrets, and other intellectual property rights, all\n\n                                       10\n\n \ninventions, whether or not patentable, and any product, drawing, design,\nrecording, writing, literary work or other author's work, in any other tangible\nform developed in whole or in part by Employee during the term of this\nAgreement, or otherwise developed, purchased or acquired by the Company or any\nof its Affiliates, shall be the exclusive property of the Company or such\nAffiliate, as the case may be (\"Intellectual Property\").\n\n         (b)  Employee will hold all Intellectual Property in trust for the\nCompany and will deliver all Intellectual Property in Employee's possession or\ncontrol to the Company upon request and, in any event, at the end of Employee's\nemployment with the Company.\n\n         (c)  Employee shall assign and does hereby assign to the Company all\nproperty rights that Employee may now or hereafter have in the Intellectual\nProperty. Employee shall take such action, including, but not limited to, the\nexecution, acknowledgment, delivery and assistance in preparation of documents,\nand the giving of testimony, as may be requested by the Company to evidence,\ntransfer, vest or confirm the Company's right, title and interest in the\nIntellectual Property.\n\n         (d)  Employee will not contest the validity of any invention, any\ncopyright, any trademark or any mask work registration owned by or vesting in\nthe Company or any of its Affiliates under this Agreement.\n\n    14.  Definitions. As used in this Agreement, the terms defined in Exhibit B\nhave the means assigned to such terms in such exhibit.\n\n    15.  Notices. All notices, requests, demands and other communications\nrequired by or permitted under this Agreement shall be in writing and shall be\nsufficiently delivered if delivered by hand, by courier service, or sent by\nregistered or certified mail, postage prepaid, to the parties at their\nrespective addresses listed below:\n\n         (a)    If to Employee:\n\n                James Patrick Millinor, Jr.\n                409 Ripple Creek\n                Houston, Texas 77024\n\n         (b)    If to the Company:\n\n                Encompass Management Co.\n                Three Greenway Plaza, Suite 2000\n                Houston, Texas 77046\n                Attention: Corporate Secretary\n                Facsimile: 713-626-4766\n\nAny party may change such party's address by such notice to the other parties.\n\n                                       11\n\n \n    16.  Set-off Rights. The Company's obligations to make the payments and\nprovide the benefits required by this Agreement and otherwise to perform its\nobligations hereunder shall not be affected by any set off, counterclaim,\nrecoupment, defense or other claim, right or action that the Company may have\nagainst Employee or others, unless such amount is a determinable liability of\nthe Employee to the Company as of the date payment is due to Employee.\n\n    17.  Assignment. This Agreement is personal to Employee, and Employee shall\nnot assign any of Employee's rights or delegate any of Employee's duties\nhereunder without the prior written consent of the Company. Neither Employee nor\nEmployee's spouse will have the right to commute, encumber, or otherwise dispose\nof any payments under this Agreement. The Company shall have the right to assign\nthis Agreement to a successor in interest in connection with a merger, sale of\nsubstantially all assets, or the like; provided however, that an assignment of\nthis Agreement to an entity with operations, products or services outside of the\nindustries in which the Company is then active shall not be deemed to expand the\nscope of Employee's covenant not to compete with such operations, products or\nservices without Employee's written consent. The Company shall require any\nPerson who is the successor (whether direct or indirect, by purchase, merger,\nconsolidation, reorganization, or otherwise) to all or substantially all of the\nbusiness and\/or assets of the Company to expressly assume and agree to perform,\nby a written agreement in form and substance reasonably satisfactory to\nEmployee, all of the obligations of the Company under this Agreement. As used in\nthis Agreement, the term \"Company\" means the Company as hereinbefore defined and\nany successor to its business and\/or assets as aforesaid which assumes and\nagrees to perform this Agreement by operation of law, written agreement, or\notherwise.\n\n    18. Survival. The provisions of this Agreement shall survive the termination\nof Employee's employment hereunder in accordance with their terms.\n\n    19. Governing Law. This Agreement shall be governed by, and construed and\nenforced in accordance with, the laws of Texas without regard to the choice-of-\nlaw principles thereof.\n\n    20. Binding Upon Successors. This Agreement shall be binding upon, and\nshall inure to the benefit of, the parties hereto and their respective heirs,\nlegal representatives, successors and permitted assigns.\n\n    21. Entire Agreement. This Agreement constitutes the entire agreement\nbetween the Company and Employee with respect to the terms of employment of\nEmployee by the Company and supersedes all prior agreements and understandings,\nwhether written or oral, between them concerning such terms of employment.\n\n    22. Amendments and Waivers. This Agreement may be amended, modified or\nsupplemented, and any obligation hereunder may be waived, only by a written\ninstrument executed by the parties hereto. The waiver by either party of a\nbreach of any provision of this Agreement shall not operate as a waiver of any\nsubsequent breach. No failure on the part of any party to exercise, and no delay\nin exercising, any right or remedy hereunder shall operate as a\n\n                                       12\n\n \nwaiver hereof, nor shall any single or partial exercise of any such right or\nremedy by such party preclude any other or further exercise thereof or the\nexercise of any other right or remedy.\n\n    23. Cumulative Rights And Remedies. All rights and remedies hereunder are\ncumulative and are in addition to all other rights and remedies provided by law,\nagreement or otherwise. Employee's obligations to the Company and the Company's\nrights and remedies hereunder are in addition to all other obligations of\nEmployee and rights and remedies of the Company created pursuant to any other\nagreement.\n\n    24. Construction. Each party to this Agreement has had the opportunity to\nreview this Agreement with legal counsel. This Agreement shall not be construed\nor interpreted against any party on the basis that such party drafted or\nauthored a particular provision, parts of or the entirety of this Agreement.\n\n    25. Severability. In the event that any provision or provisions of this\nAgreement is held to be invalid, illegal or unenforceable by any court of law or\notherwise, the remaining provisions of this Agreement shall nevertheless\ncontinue to be valid, legal and enforceable as though the invalid or\nunenforceable parts had not been included therein. In addition, in such event\nthe parties hereto shall negotiate in good faith to modify this Agreement so as\nto effect the original intent of the parties as closely as possible with respect\nto those provisions which were held to be invalid, illegal or unenforceable.\n\n    26. Attorneys' Fees and Costs. If any action at law or in equity is brought\nto enforce or interpret the terms of this Agreement, the prevailing party shall\nbe entitled to reasonable attorneys' fees, costs and necessary disbursements in\naddition to any other relief to which it may be entitled.\n\n    27. Encompass Performance Agreement. Encompass shall cause the Company to\nperform each and every obligation to be performed by the Company hereunder.\n\n                                       13\n\n \n    IN WITNESS WHEREOF, the Company and Employee have executed this Agreement \non the date first above written.\n\n                                         COMPANY:\n                                              \n                                         ENCOMPASS MANAGEMENT CO.\n                                                 \n                                         By: \/s\/ JOSEPH M. IVEY\n                                             ---------------------------------\n                                         Name: JOSEPH M. IVEY \n                                         Title: President\n\n                                                            \n                                         ENCOMPASS:\n                                                               \n                                         ENCOMPASS SERVICES CORPORATION\n                                                            \n                                         By: \/s\/ JOSEPH M. IVEY\n                                             ---------------------------------\n                                         Name: JOSEPH M. IVEY\n                                         Title: President\n                                                                 \n                                         EMPLOYEE:\n                                                 \n                                             \/s\/ J. PATRICK MILLINOR JR.\n                                         -------------------------------------\n                                                      \n                                         Printed Name: J. Patrick Millinor, Jr.\n                 \n\n                                       14\n\n \n                                                            EXHIBIT A\n\n                      DUTIES OF THE CHAIRMAN OF THE BOARD\n\nThe Chairman of the Board shall have the duties as directed by the Board of\nDirectors. These will include, but not be limited to,\n\n.  All non-executive duties normally associated with the office, including\n   presiding over the Board, its Executive Committee, and the Annual Shareholder\n   Meeting\n\n.  Direct executive responsibility for finance, accounting, treasury, risk\n   management, legal, corporate communications and investor relations\n\n.  Interface and co-operative involvement with the President and\n   Chief Executive Officer\n\n                                       15\n\n \n                                                            EXHIBIT B\n\n                                  DEFINITIONS\n\n    \"Annual Base Salary\" means the salary of Employee in effect at the relevant\ntime determined in accordance with Section 4(a) hereof.\n\n    \"Affiliate\" means, with respect to any Person, each other Person who \ncontrols, is controlled by, or is under common control with the Person\nspecified.\n\n    \"Cause\" when used in connection with the termination of employment with the\nCompany, means the termination of Employee's employment by the Company by reason\nof (i) the conviction of Employee of a crime involving moral turpitude by a\ncourt of competent jurisdiction; (ii) the proven commission by Employee of an\nact of fraud upon the Company; (iii) the willful and proven misappropriation of\nany funds or property of the Company by Employee; (iv) the willful, continued\nand unreasonable failure by Employee to perform material duties assigned to\nEmployee, after reasonable written notice and opportunity to cure such\nperformance has been given by the Company; (v) the knowing engagement by\nEmployee in any direct, material conflict of interest with the Company without\ncompliance with the Company's conflict of interest policy, if any, then in\neffect; (vi) the knowing engagement by Employee, without the written approval of\nthe Board of Directors of the Company, in any activity which competes with the\nbusiness of the Company or any of its Affiliates or which would result in a\nmaterial injury to the Company or any of its Affiliates; or (vii) the knowing\nengagement in any activity which would constitute a material violation of the\nprovisions of the Company's Insider Trading Policy or Business Ethics Policy, if\nany, then in effect.\n\n    \"Change of Control\" means\n\n         (i)  the acquisition by any individual, entity or group (within the \n    meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a \"Designated\n    Person\") of beneficial ownership (within the meaning of Rule 13d-3\n    promulgated under the Securities Exchange Act of 1934, as amended, (the\n    \"Exchange Act\")) of 30% or more of either (1) the then outstanding shares of\n    Common Stock of the Company (the \"Outstanding Company Common Stock\") or (2)\n    the combined voting power of the then outstanding voting securities of the\n    Company entitled to vote generally in the election of directors (the\n    \"Outstanding Company Voting Securities\"); provided, however, that the\n    following acquisitions shall not constitute a Change of Control: (a) any\n    acquisition of Common Stock of the Company or voting securities of the\n    Company directly from the Company (excluding an acquisition by virtue of the\n    exercise of a conversion privilege), (b) any acquisition of Common Stock of\n    the Company or voting securities of the Company by the Company (c) any\n    acquisition of Common Stock of the Company or voting securities of the\n    Company by any employee benefit plan(s) (or related trust(s)) sponsored or\n    maintained by the Company or any corporation controlled by the Company and\n    approved by the Incumbent Board, (d) any acquisition by any corporation\n    pursuant to a reorganization, merger or consolidation, if, immediately\n    following such reorganization,\n\n                                       16\n\n \n    merger or consolidation, the conditions described in clauses (1), (2) and\n    (3) of paragraph (iii) below of this definition are satisfied, or (e) an\n    acquisition by Apollo Management L.P. and\/or one or more of its affiliates\n    resulting in an ownership of no more than 40% of the Common Stock of the\n    Company (for this purpose, any securities convertible into Common Stock held\n    by Apollo Management L.P. and its affiliates will be treated as if they have\n    been converted for purposes of determining the percentage of ownership held\n    on an \"as-converted\" basis); or\n\n         (ii)   individuals who, as of the date hereof, constitute the entire \n    Board of Directors of the Company (the \"Incumbent Board\") cease for any\n    reason to constitute at least a majority of the Board of Directors of the\n    Company (the \"Board\"); provided, however, that any individual becoming a\n    director subsequent to the date hereof whose election, or nomination for\n    election by the Company's shareholders, was approved by a vote of at least a\n    majority of the directors then comprising the Incumbent Board shall be\n    considered as though such individual were a member of the Incumbent Board,\n    but excluding, for this purpose, any such individual whose initial\n    assumption of office occurs as a result of either (1) an actual or\n    threatened election contest (as such terms are used in Rule 14a-11 of the\n    Regulation 14A promulgated under the Exchange Act), or an actual or\n    threatened solicitation of proxies or consents by or on behalf of a Person\n    other than the Board or (2) a plan or agreement to replace a majority of the\n    members of the Board then comprising the Incumbent Board; or\n\n         (iii)  approval by the shareholders of the Company of a reorganization,\n                merger or consolidation, in each case unless, immediately\n                following such reorganization, merger or consolidation, (1) more\n                than 50% (or such greater percentage as may be approved by the\n                Incumbent Board) of the then outstanding shares of common stock\n                of the corporation resulting from such reorganization, merger or\n                consolidation (including, without limitation, a corporation\n                which as a result of such transaction owns the Company through\n                one or more subsidiaries) and the combined voting power of the\n                then outstanding voting securities of such corporation entitled\n                to vote generally in the election of directors is then\n                beneficially owned, directly or indirectly, by all or\n                substantially all of the individuals and entities who were the\n                beneficial owners, respectively, of the Outstanding Company\n                Common Stock and Outstanding Company Voting Securities\n                immediately prior to such reorganization, merger or\n                consolidation in substantially the same proportions as their\n                ownership immediately prior to such reorganization, merger or\n                consolidation, of the Outstanding Company Common Stock or\n                Outstanding Company Voting Securities, as the case may be, (2)\n                no Designated Person (excluding the Company or any employee\n                benefit plan(s) (or related trust(s)) of the Company and\/or its\n                subsidiaries or any Person beneficially owning, immediately\n                prior to such reorganization, merger or consolidation, directly\n                or indirectly, 30% (or such lesser percentage as may be approved\n                by the Incumbent Board) or more of the Outstanding Company\n                Common Stock or Outstanding Company Voting Securities, as the\n                case may be)\n\n                                       17\n\n \n                beneficially owns, directly or indirectly, 30% (or such lesser\n                percentage as may be approved by the Incumbent Board) or more\n                of, respectively, the then outstanding shares of common stock of\n                the corporation resulting from such reorganization, merger or\n                consolidation or the combined voting power of the then\n                outstanding voting securities of such corporation entitled to\n                vote generally in the election of directors, and (3) at least a\n                majority of the members of the board of directors of the\n                corporation resulting from such reorganization, merger or\n                consolidation were members of the Incumbent Board at the time of\n                the execution of the initial agreement providing for such\n                reorganization, merger or consolidation; or\n\n         (iv)   approval by the shareholders of the Company of (1) a complete\n                liquidation or dissolution of the Company or (2) the sale or\n                other disposition of all or substantially all of the assets of\n                the Company, other than to a corporation, with respect to which\n                immediately following such sale or other disposition, (A) more\n                than 50% (or such greater percentage as may be approved by the\n                Incumbent Board) of the then outstanding shares of common stock\n                of such corporation and the combined voting power of the then\n                outstanding voting securities of such corporation entitled to\n                vote generally in the election of directors is then beneficially\n                owned, directly or indirectly, by all or substantially all of\n                the individuals and entities who were beneficial owners,\n                respectively, of the Outstanding Company Common Stock and\n                Outstanding Company Voting Securities immediately prior to such\n                sale or other disposition in substantially the same proportion\n                as their ownership, immediately prior to such sale or other\n                disposition, of the Outstanding Company Common Stock and\n                Outstanding Company Voting Securities, as the case may be, (B)\n                no Designated Person (excluding the Company and any employee\n                benefit plan (or related trust) of the Company and\/or its\n                subsidiaries or such corporation and any Person beneficially\n                owning, immediately prior to such sale or other disposition,\n                directly or indirectly, 30% (or such lesser percentage as may be\n                approved by the Incumbent Board) or more of the Outstanding\n                Company Common Stock or Outstanding Company Voting Securities,\n                as the case may be) beneficially owns, directly or indirectly,\n                30% (or such lesser percentage as may be approved by the\n                Incumbent Board) or more of, respectively, the then outstanding\n                shares of common stock of such corporation or the combined\n                voting power of the then outstanding voting securities of such\n                corporation entitled to vote generally in the election of\n                directors, and (C) at least a majority of the members of the\n                board of directors of such corporation were members of the\n                Incumbent Board at the time of the execution of the initial\n                agreement or action of the Board providing for such sale or\n                other disposition of assets of the Company.\n\n     \"Confidential Information\" includes information conveyed or assigned to the\nCompany or any of its Affiliates by Employee or conceived, compiled, created,\ndeveloped, discovered or\n\n                                       18\n\n \nobtained by Employee from and during Employee's employment relationship with the\nCompany, whether solely by Employee or jointly with others, which concerns the\naffairs of the Company or its Affiliates and which the Company could reasonably\nbe expected to desire be held in confidence, or the disclosure of which would\nlikely be embarrassing, detrimental or disadvantageous to the Company or its\nAffiliates and without limiting the generality of the foregoing includes\ninformation relating to inventions, and the trade secrets, technologies,\nalgorithms, products, services, finances, business plans, marketing plans, legal\naffairs, supplier lists, client lists, potential clients, business prospects,\nbusiness opportunities, personnel assignments, contracts and assets of the\nCompany or any of its Affiliates and information made available to the Company\nor any of its Affiliates by other parties under a confidential relationship.\nConfidential Information, however, shall not include information (a) which is,\nat the time in question, in the public domain through no wrongful act of\nEmployee, (b) which is later disclosed to Employee by one not under obligations\nof confidentiality to the Company or any of its Affiliates or Employee, (c)\nwhich is required by court or governmental order, law or regulation to be\ndisclosed, or (d) which the Company has expressly given Employee the right to\ndisclose pursuant to written agreement.\n\n     \"Founder Options\" mean the options to acquire common stock of the Company\nfor an exercise price of $3.07 per share (as presently constituted) granted to\nthe Employee prior to the Company's initial public offering.\n\n     \"Good Reason\" means the occurrence of any of the following events:\n\n     (a) Employee is assigned duties, taken as a whole, that are materially\ninconsistent with, or materially diminished from, Employee's positions, duties,\nresponsibilities and status with the Company immediately prior to such action,\nor Employee's status, reporting responsibilities, titles or offices are\nmaterially diminished from those in effect immediately prior to such action, or\nEmployee's duties and responsibilities are materially increased without a\ncorresponding reasonable increase in the Employee's compensation, except in each\ncase in connection with the termination of Employee's employment by the Company\nfor Cause or on account of disability, or as a result of the Employee's death,\nor by the Employee for other than Good Reason; provided, however, that Good\nReason shall not be triggered under this subsection (a) by an immaterial action\nnot taken in bad faith or by an action that is remedied by the Company promptly\nafter receipt of written notice from Employee; or\n\n    (b)  Employee's Annual Base Salary is reduced from that which was in effect\nprior to such action unless such reduction is part of a general reduction in\ncompensation within the officer ranks due to economic or company-wide\nconsiderations; or\n\n    (c)  The Company takes any action to materially reduce or eliminate\nEmployee's participation in the Company's benefit or compensation plans unless\nsuch reduction or elimination is part of a general reduction in benefits within\nthe officer ranks due to economic or company-wide considerations; or\n\n    (d)  The Employee's principal office is relocated more than 20 miles from\nwhere such office was located immediately prior to such event; or\n\n                                       19\n\n \n    (e)  The Company requires Employee at any time to relocate more than 20\nmiles from where Employee's primary residence was located immediately prior to\nsuch event; or\n\n    (f)  The amendment, modification or repeal of any provision of the \nCertificate of Incorporation or Bylaws of the Company that was in effect\nimmediately prior to the commencement of a Protected Period, if such amendment,\nmodification or repeal would materially adversely affect Employee's rights to\nindemnification by the Company; or\n\n    (g)  The Company shall violate or breach any obligation of the Company\n(regardless whether such obligation be set forth in the Bylaws of the Company\nand\/or in this Agreement or any other separate agreement entered into between\nthe Company and Employee) to indemnify Employee against any claim, loss, expense\nor liability sustained or incurred by Employee by reason, in whole or in part,\nof the fact that Employee is or was an officer or director of the Company; or\n\n    (h) The Company shall violate or breach any other material obligation of the\nCompany owing to Employee relating to Employee's employment with the Company,\nprovided that in the event of a violation or breach that is reasonably subject\nto being cured by the Company, Good Reason shall only occur if the Company shall\nfail or refuse to commence a cure within 15 days after written notice thereof is\ngiven by Employee to the Company or shall thereafter fail to diligently\nprosecute such cure to completion; or\n\n    (i) The Company shall fail to keep in force, for the benefit of Employee,\ndirectors' and officers' insurance with coverage amounts and scope at least\nequal to the coverage amounts in effect on the date hereof; or\n\n    (j)  The Company shall fail to obtain from a successor (including a \nsuccessor to a material portion of the business or assets of the Company) a\nsatisfactory assumption in writing of the Company's obligations under this\nAgreement; or\n\n    (k)  The Company shall fail to provide Employee with office space, related\nfacilities and support personnel (including, but not limited to, administrative\nand secretarial assistance) that are both commensurate with the Employee's\nposition and Employee's responsibilities to and position with the Company and\nnot materially dissimilar to the office space, related facilities and support\npersonnel provided to other executive officers of the Company; or\n\n    (l)  The Company notifies Employee of the Company's intention not to \nobserve or perform one or more of the material obligations of the Company under\nthis Agreement; or\n\n    (m)  The Board (or any nominating committee of the Board) fails to \nrecommend and support Employee's re-election as a director of the Company if the\nEmployee is a director of the Company; or\n\n    (n)  The Company elects not to renew this Agreement; or\n\n                                       20\n\n \n    (o)  If by the end of the sixth month after the Company undergoes a\nChange of Control, as defined in Exhibit B to this Agreement, Employee has not\ngiven the Company a written waiver of this right.\n\n    \"Person\" means any individual, corporation, trust, partnership, limited\npartnership, foundation, association, limited liability company, joint stock\nassociation or other legal entity.\n\n    \"Restricted Period\" means the period beginning on the date of the \ntermination of Employee's employment with the Company and its Affiliates and\nending as follows, as applicable:\n\n         (i)  one year after the termination of Employee's employment if \n     Employee is not entitled to benefits under Section 9(c); or\n\n         (ii) three years after the termination of Employee's employment, if \n     Employee receives all benefits under Section 9(c), subject to permitted \n     set-offs under Section 16.\n\n                                       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