Exhibit 10.13.2
September 15, 1998
Mr. Bruce D. Tobecksen
Senior Vice President and
Chief Financial Officer
American Eco Corporation
11011 Jones Road
Houston, Texas 77070
Dear Bruce:
In connection with the appointment of Frank J. Fradella as President and
Chief Operating Officer of American Eco Corporation (the "Company"), Mr.
Fradella desires to retain the services of his own management team to assist him
in managing the business and affairs of the Company. Accordingly, the Board of
Directors of the Company is hereby notifying you that your employment with the
Company will be terminated without cause effective as provided for in Section 1
herein. Notwithstanding such termination, the Company intends to honor all of
its obligations to you pursuant to the Employment Agreement, dated as of January
1, 1998 (the "Employment Agreement"), by and between the Company and you.
This letter is intended to set forth our mutual understanding with respect
to the termination of your employment and the settlement and discharge of all of
our respective rights and obligations in connection therewith.
1. Termination of Employment. You and the Company mutually and irrevocably
agree that your employment with the Company and each of the Company's
subsidiaries will terminate effective as of the close of business on September
25, 1998 (the "Termination Date"). Effective on the Termination Date, you will
resign as an officer of the Company and each of the Company's subsidiaries.
2. Termination of Employment Agreement. Except as otherwise provided
herein, effective on the Termination Date, the Employment Agreement shall
terminate and be of no further force or effect. You hereby acknowledge that,
from and after the Termination Date, the Company will have no obligation to you,
monetarily or otherwise, arising out of, or relating to, the Employment
Agreement.
3. Severance Payments. Within fifteen (15) days following the Termination
Date, the Company shall pay to you the following amounts:
Mr. Bruce D. Tobecksen -2- September 15, 1998
(a) Your regular salary at the rate of Two Hundred Fifty Thousand
Dollars ($250,000) per annum, less applicable payroll deductions, for all
services rendered through and including the Termination Date, in accordance
with prevailing Company payroll practices.
(b) A lump sum in the amount of Seven Hundred Fifty Thousand Dollars
($750,000), less applicable payroll deductions.
You acknowledge and agree that neither the Company nor any Company
subsidiary owes you any wages, commissions, bonuses, vacation pay, severance
pay, expenses or other compensation or payments of any kind or nature,
including, without limitation, pursuant to the Employment Agreement, other than
as provided in this Agreement.
4. Stock Options. The stock options granted to you for the purchase of
50,000 common shares of the Company will be treated as fully vested as of the
Termination Date. At any time during the period of one (1) year after the
Termination Date (the "Exercise Period") you will be entitled to exercise any or
all such stock options, such exercise to be in accordance with the terms and
conditions of any stock option agreements in effect during such period with
respect to such stock options. After the end of the Exercise Period any options
not exercised shall terminate and be of no further effect.
5. Benefits. Following the Termination Date you and, if applicable, your
wife and children shall be entitled to the following benefits through the
earlier of (i) December 31, 2000, and (ii) the date on which you become eligible
for comparable benefits by virtue of subsequent employment:
(a) Life Insurance. Subject to your qualification under normal life
insurance underwriting standards as of any policy renewal date, the Company
shall continue to provide, at the Company's expense, a term life insurance
policy on your life in the face amount equal to $1,000,000. The proceeds of
such policy shall be payable to your estate.
(b) Benefit Plans. You will be entitled, to the same extent and on the
same terms as while you were employed by the Company, to participate in any
plan or arrangement made available by the Company to its senior executive
officers, including any hospitalization, medical, dental or pension plan
(subject to the general terms and conditions of such plans). Following
December 31, 2000, you will be entitled to any rights guaranteed by the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). Premium
and other payment required for any further continued health or dental
insurance coverage, in accordance with COBRA, shall be your sole
responsibility.
Mr. Bruce D. Tobecksen -3- September 15, 1998
(c) Automobile Allowance. You shall be paid a car allowance of $750
per month payable on the first day of each month, and the Company will
reimburse you for all actual expenses associated with operating and
maintaining the vehicle. You shall submit receipts or other evidence of
such expenditures and the Company shall pay these amounts to you within 30
days of receipt of such documentation.
6. Release of all Claims. In consideration of this Agreement and of the
monies paid and benefits provided to you pursuant to this Agreement, and for
other good and valuable consideration the receipt of which is hereby
acknowledged, you hereby release and forever discharge the Company and each of
the Company's current, former, and future controlling shareholders,
subsidiaries, affiliates, related companies, divisions, directors, officers,
employees, agents, attorneys, successors and assigns (and the current, former
and future shareholders, directors, officers, employees, agents, and attorneys
of such controlling shareholders, subsidiaries, affiliates, related companies
and divisions), and all persons acting by, through, under or in concert with any
of them (the Company and the foregoing other persons and entities are
hereinafter defined separately and collectively as the "Releasees"), from all
actions, causes of action, suits, debts, sums of money, accounts, covenants,
contracts, agreements, promises, damages, judgments, claims, and demands
whatsoever, whether known or unknown, in law or equity, whether statutory or
common law, whether federal, state, local, or otherwise, including, but not
limited to, any claims relating to, or arising out of any aspect of your
employment with the Company or any Company subsidiary, any agreement concerning
such employment, or the termination of such employment, including, but not
limited to:
(a) any and all claims of wrongful discharge or breach of contract,
any and all claims for equitable estoppel, any and all claims for employee
benefits, including, but not limited to, any and all claims under the
Employee Retirement Income Security Act of 1974, as amended, and any and
all claims of employment discrimination on any basis, including, but not
limited to, any and all claims under Title VII of the Civil Rights Act of
1964, as amended, under the Age Discrimination in Employment Act of 1967,
as amended, under the Civil Rights Act of 1866, 42 U.S.C. ss. 1981, under
the Civil Rights Act of 1991, as amended, under the Americans With
Disabilities Act of 1990, as amended, under the Family and Medical Leave
Act of 1993, under the Immigration Reform and Control Act of 1986, and
under the applicable Texas Statutes;
(b) any and all claims under any other federal, state, or local labor
law, civil rights law, fair employment practices law, or human rights law;
(c) any and all claims of slander, libel, defamation, invasion of
privacy, intentional or negligent infliction of emotional distress,
intentional or negligent misrepresentation, fraud, and prima facie tort;
and
Mr. Bruce D. Tobecksen -4- September 15, 1998
(d) any and all claims for monetary recovery, including, but not
limited to, back pay, front pay, liquidated, compensatory, and punitive
damages, and attorneys' fees, experts' fees, disbursements, and costs,
which against the Releasees, or any of them, you or your respective heirs,
executors, administrators, successors and assigns ever had, now have, or
hereafter shall or may have, for, upon or by reason of, any matter or cause
whatsoever from the beginning of the world to the date of your execution of this
Agreement.
7. Covenant Not to Sue. You represent and warrant that you have never
commenced or filed, and covenant and agree never to commence, file, aid, or in
any way prosecute or cause to be commenced or prosecuted against the Releasees,
or any of them, any action, charge, complaint or other proceeding, whether
administrative, judicial, legislative or otherwise, including, but not limited
to, any action or proceeding for attorneys' fees, experts' fees, disbursements
or costs based upon or seeking relief on account of actions or failures to act
by the Releasees, or any of them, which may have occurred or failed to occur
before your execution of this Agreement.
8. Confidentiality; Injunctive Relief. You acknowledge and agree that the
terms of, and obligations imposed on you by, Sections 2.2 and 2.3 of the
Employment Agreement (titled "Confidential Information" and "Injunctive Relief")
will, by their terms, survive the termination of the Employment Agreement, and
are in no way diminished by this Agreement.
9. Return of Company Property. You represent and warrant that you have
returned to the Company any and all documents, software, equipment (including,
but not limited to, computers and computer-related items), Company credit cards,
and all other materials or other things in your possession, custody, or control
which are the property of the Company, including, but not limited to any Company
identification, keys, and the like, or which relate in any way to the business,
products, research or business plans of the Company, and all other Confidential
Information of the Company (as defined in Section 2.2(a) of the Employment
Agreement), wherever such items may have been located; as well as all copies (in
whatever form thereof) of all materials relating to your employment, or obtained
or created in the course of your employment, with the Company or the Company's
subsidiaries.
10. Indemnity. You agree to indemnify and hold harmless each and all of the
Releasees from and against any and all loss, cost, damage or expense, including,
but not limited to, attorneys' fees, incurred by the Releasees, or any of them,
arising out of any breach by you of this Agreement, or the fact that any
representation made by you in this Agreement was false when made.
Mr. Bruce D. Tobecksen -5- September 15, 1998
11. No Admission of Liability. The parties hereto acknowledge that this
Agreement is being executed in order to settle and forever set at rest all
controversies of whatsoever nature which may exist among the parties in
connection with your employment by the Company and the Company's subsidiaries,
and that neither this Agreement nor the releases contained herein constitute an
acknowledgment or admission of liability in any way on the part of any party
hereto or its successors, assigns, agents, officers, directors or employees, all
of whom expressly deny any liability for any and all claims of whatever nature.
12. Entire Agreement. Except as otherwise provided herein, this Agreement
sets forth the entire agreement between the parties hereto, terminates and fully
supersedes any and all prior agreements or understandings between the parties
(including, without limitation, the Employment Agreement), and may not be
modified orally. Should any provision of this Agreement be declared or
determined by a court to be illegal or invalid, the validity of the remaining
provisions shall not be affected thereby and said illegal or invalid provision
shall be deemed not to be a part of this Agreement.
13. Applicable Law. This Agreement is made in the State of Texas and shall
be interpreted, construed, and enforced pursuant to the substantive laws of the
State of Texas, without giving effect to its choice of law provisions.
If the foregoing correctly sets forth your understanding and agreement with
respect to the matters addressed herein, please execute a counterpart of this
letter.
Very truly yours,
AMERICAN ECO CORPORATION
By: /s/ Michael E. McGinnis
---------------------------
Michael E. McGinnis
Chairman
Board of Directors
Accepted and agreed to as of
the 15th day of September, 1998
/s/ Bruce D. Tobecksen
----------------------
Bruce D. Tobecksen