EXHIBIT 10.2
EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between Conrad
Industries, a Louisiana corporation (the "Company"), and Kenneth G. Myers, Jr.
("Executive") is hereby entered into effective as of August 13, 2001 (the
"Effective Date").
RECITALS
WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, all on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
AGREEMENTS
1. Employment and Duties.
(a) Effective on August 27, 2001 (the "Start Date"), the Company shall
employ Executive as the Chief Executive Officer and President of the Company. As
such, Executive shall have responsibilities, duties and authority reasonably
accorded to, expected of and consistent with Executive's positions as the Chief
Executive Officer and President of the Company. Executive hereby accepts this
employment upon the terms and conditions herein contained and, subject to
paragraph 1(c), agrees to devote substantially all of his time, attention and
efforts during normal business hours to promote and further the business and
interests of the Company and its affiliates.
(b) Executive shall faithfully adhere to, execute and fulfill all lawful
policies established by the Company.
(c) Executive shall not, during the term of his employment hereunder, engage
in any other business activity pursued for gain, profit or other pecuniary
advantage if such activity interferes in any material respect with Executive's
duties and responsibilities hereunder. The foregoing limitations shall not be
construed as prohibiting Executive from making personal investments in such form
or manner as will neither require his services in the operation or affairs of
the companies or enterprises in which such investments are made nor violate the
terms of paragraph 3 hereof.
2. Compensation. For all services rendered by Executive, the Company shall
compensate Executive as follows:
(a) Base Salary. The base salary payable to Executive during the term of his
employment hereunder, commencing on the Start Date, shall be $230,000 per year,
payable in accordance with the Company's payroll procedures for executives, but
not less frequently than monthly. Such base salary may be increased from time to
time, at the discretion of the Board of Directors of the Company (the "Board"),
in light of the Executive's position, responsibilities and performance, and, as
increased from time to time, may not be reduced.
(b) Company Stock. Effective on the Start Date, the Company shall grant to
Executive 5,000 shares of common stock of the Company ("Company Stock"), subject
to the following terms:
(i) Executive shall not be immediately vested in any of the shares of
the Company Stock;
(ii) Executive shall vest in 100% of the shares of Company Stock (the
"Nonvested Shares") on the anniversary of the Start Date as long as
Executive continues to be an employee of the Company, subject to the
further provisions of this Agreement;
(iii) Executive shall become automatically 100% vested in the Nonvested
Shares immediately prior to a "Change in Control" of the Company, as such
term is defined in the Conrad Industries, Inc. 1998 Stock Plan (a "Change
in Control");
(iv) prior to becoming vested, the Nonvested Shares may not be
transferred (except by will or the laws of descent and distribution),
pledged or encumbered in any manner by Executive;
(v) all distributions made by the Company with respect to the Nonvested
Shares (cash, stock or other property), and any shares issued upon a stock
split or stock dividend or by the Company in exchange for the Nonvested
Shares shall be subject to the same restrictions applicable to the
Nonvested Shares as set forth in this Agreement; and
(vi) the Company may place such legends on the certificate for the
Nonvested Shares evidencing the restrictions provided herein as it deems
appropriate.
(c) Options. On the Start Date, the Company will grant Executive options
pursuant to the Conrad Industries, Inc. 1998 Stock Plan (the "Plan") to purchase
50,000 shares of Company Stock, which options shall vest in three equal annual
installments on the first, second and third anniversary of the Start Date, with
an exercise price equal to the fair market value of the Company Stock on the
grant date, and having other terms and conditions substantially similar to
options granted to other executive officers of the Company. The options shall be
incentive stock options for the maximum number that shall qualify as incentive
stock options, and the balance shall be nonqualified stock options. In the event
of a Change in Control, all such options automatically shall become
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fully vested immediately prior to such Change in Control (or such earlier time
as set by the Board or committee administering the Plan).
(d) Bonus. Executive shall be eligible to participate in any executive bonus
programs maintained by the Company.
(e) Executive Perquisites, Benefits and Other Compensation. Executive shall
be entitled to receive additional benefits and compensation from the Company in
such form and to such extent as specified below:
(i) Executive shall be entitled to an automobile allowance of $650 per
month. The Company will reimburse Executive for all fuel and maintenance
and will provide Executive with automobile insurance;
(ii) Executive shall be promptly reimbursed for all business travel and
other out-of-pocket expenses reasonably incurred by Executive in the
performance of his duties pursuant to this Agreement and in accordance with
the Company's policy for executives of the Company. All such expenses shall
be appropriately documented in reasonable detail by Executive upon
submission of any request for reimbursement, and in a format and manner
consistent with the Company's expense reporting policy;
(iii) Executive shall, subject to the satisfaction of any general
eligibility criteria, be eligible to participate in all compensation and
benefit plans and programs as are maintained from time to time for
executives of the Company. Employee benefit plans maintained by the Company
as of the Effective Date are listed on Appendix B attached hereto. The
Company undertakes no obligation to continue any such plans in effect. If
Executive is ineligible to participate in the Company's health insurance
program, the Company shall provide Executive with health insurance similar
to the Company's program as may be from time to time in effect;
(iv) Executive shall be entitled to a minimum of three weeks of annual
vacation; and
(v) the Company shall provide Executive with such other perquisites as
may be deemed appropriate for Executive by the Board.
3. Non-Competition Agreement.
(a) Executive recognizes that the Company's willingness to enter into this
Agreement is based in material part on Executive's agreement to the provisions
of this paragraph 3 and that Executive's breach of the provisions of this
paragraph 3 could materially damage the Company. Subject to the further
provisions of this Agreement, Executive will not, during the term of his
employment with the Company, and for a
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period of one year immediately following the termination of such employment for
any reason whatsoever, except as may be set forth herein, directly or
indirectly:
(i) carry on or engage in any business in direct competition with the
construction, conversion or repair of marine vessels or the fabrication of
modular components for offshore drilling rigs or floating production,
storage and offloading vessels (collectively, the "Businesses") of the
Company or any subsidiary of the Company (collectively, the "Companies") in
any State of the United States or other jurisdiction, or specified portions
thereof, in which the Executive regularly (a) makes contact with customers
of the Company or any of its subsidiaries, (b) conducts the business of the
Company or any of its subsidiaries or (c) supervises the activities of
other employees of the Company or its subsidiaries, as identified in
Appendix "A" attached hereto and forming a part of this Agreement, so long
as the Company or any of its subsidiaries carries on any of the Businesses
therein (collectively the "Territory");
(ii) call upon any person who is, at that time, an employee of any of
the Companies for the purpose or with the intent of enticing such employee
away from or out of the employ of any of the Companies;
(iii) call upon any customer of any of the Companies within the
Territory for the purpose of soliciting or selling products or services in
direct competition with any of the Companies within the Territory;
(iv) call upon any prospective acquisition candidate, on Executive's own
behalf or on behalf of any competitor, which candidate was, to Executive's
knowledge after due inquiry, either called upon by any of the Companies or
for which any of the Companies made an acquisition analysis, for the
purpose of acquiring such entity; or
(v) disclose customers, whether in existence or proposed, of any of the
Companies to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever except to the extent that any of the Companies
has in the past disclosed such information to the public for valid business
reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from acquiring as in investment (i) not more than 1% of the
capital stock of a competing business, whose stock is traded on a national
securities exchange, the Nasdaq Stock Market or similar market or (ii) not more
than 5% of the capital stock of a competing business whose stock is not publicly
traded unless the Board consents to such acquisition.
Executive agrees that he will from time to time upon the Company's request
promptly execute any supplement, amendment, restatement or modification of
Appendix "A" as may be necessary or appropriate to correctly reflect the
jurisdictions which, at the time of such modification, should be covered by
Appendix "A" and this Paragraph 3.
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Furthermore, Executive agrees that all references to Appendix "A" in this
Agreement shall be deemed to refer to Appendix "A" as so supplemented, amended,
restated or otherwise modified from time to time.
(b) Because of the difficulty of measuring economic losses to the Company as
a result of a breach of the foregoing covenant, and because of the immediate and
irreparable damage that could be caused to the Company for which it would have
no other adequate remedy, Executive agrees that the foregoing covenant may be
enforced by the Company, in the event of breach by him, by injunctions and
restraining orders. Executive further agrees to waive any requirement for the
Company's securing or posting of any bond in connection with such remedies.
(c) It is agreed by the parties that the foregoing covenants in this
Paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the Companies on the date of the execution of this
Agreement and the current plans of the Companies.
(d) It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed by the Company and shall enter into a
business or pursue other activities not in competition with the Businesses of
the Companies or similar activities or businesses in locations the operation of
which, under such circumstances, does not violate clause (a)(i) of this
paragraph 3, and in any event such new business, activities or location are not
in violation of this paragraph 3 or of Executive's obligations under this
paragraph 3, if any, Executive shall not be chargeable with a violation of this
paragraph 3 if the Companies shall thereafter enter the same, similar or a
competitive (i) business, (ii) course of activities or (iii) location, as
applicable.
(e) The covenants in this paragraph 3 are severable and separate, and the
enforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth are
unenforceable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent permitted by law, and the Agreement shall thereby
be reformed.
(f) All of the covenants in this Paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants.
(g) The Company and Executive hereby agree that this covenant is a material
and substantial part of this Agreement.
(h) Executive acknowledges that the payments provided under paragraph 4(d),
(relating to termination without Cause or termination for Good Reason) are
conditioned upon Executive fulfilling the noncompetition and nondisclosure
provisions of this
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Agreement. In addition, such payments are conditioned upon Executive refraining,
for a one-year period after termination of employment, from carrying on or
engaging in, as an employee, officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an executive,
independent contractor, consultant or advisor, or as a sales representative or
otherwise, any business in direct competition with the Businesses of the
Companies in the Territory, to the extent such activity is not prohibited by
paragraph 3(a). In the event Executive shall at any time materially breach any
noncompetition or nondisclosure agreements contained in this Agreement,
including the agreements in this paragraph 3(h), the Company may cancel payments
otherwise due under paragraph 4(d) during the period of such breach. Executive
acknowledges that any such elimination of payments would be an exercise of the
Company's right to terminate its performance hereunder upon Executive's breach
of this Agreement and such elimination of payments would not constitute and
shall not be characterized as the imposition of liquidated damages.
(i) Any dispute regarding the reasonableness of the covenants and agreements
set forth in this paragraph 3 or the territorial scope or duration thereof or
the remedies available to the Company upon any breach of such covenants and
agreements, shall be governed by and interpreted in accordance with the laws of
the State of United States or other jurisdiction in which the alleged prohibited
competing activity or disclosure occurs, and with respect to each such dispute,
the Company and Executive each hereby irrevocably consent to the exclusive
jurisdiction of the state and federal courts sitting in the relevant State (or,
in the case of any jurisdiction outside the United States, the relevant courts
of such jurisdiction) for resolution of such dispute, and agree to be
irrevocably bound by any judgment rendered thereby in connection with such
dispute, and further agree that service of process may be made upon him or it in
any legal proceeding related to this paragraph 3 and/or Appendix "A" by any
means allowed under the laws of such jurisdiction. Each party irrevocably waives
any objection he or it may have as to the venue of such suit, action or
proceeding brought in such a court or that such a court is an inconvenient
forum. The parties agree that it is their intent and desire that the provisions
of this Agreement be enforced to the fullest extent permitted under applicable
law, whether now or hereafter in effect, and therefore, to the extent permitted
by applicable law, the parties hereto waive any provision of applicable law that
would render any provision of this paragraph 3 invalid or unenforceable.
(j) Notwithstanding anything in this paragraph 3 to the contrary, nothing in
this paragraph 3 shall prohibit or restrict Executive from being employed by one
of the five largest shipyards in the United States, as long as Executive is not
involved in any manner in any products or services similar to products or
services provided or offered by the Companies to their customers, or for which
any of the Companies has submitted a bid, within five years prior to the date of
termination of employment.
4. Term; Termination; Rights on Termination. Executive's term of employment
under this Agreement shall begin on the Start Date and continue until December
31, 2004 (the "Initial Term") and, unless terminated sooner as herein provided,
shall continue thereafter at Executive's and Company's mutual election on a
year-to-year basis on the same terms and
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conditions contained herein in effect as of the time of renewal (the "Extended
Term"); provided, however, upon a Change in Control of the Company, the term of
this Agreement shall automatically continue following such Change in Control for
a period equal to the then remaining term or two years, whichever period is
longer, unless earlier terminated as provided in paragraph 11. This Agreement
and Executive's employment may be terminated in any one of the following ways:
(a) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due Executive's estate; provided,
however, all Nonvested Shares, if any, shall immediately vest in full.
(b) Disability. If Executive becomes entitled to receive benefits under
an insured long-term disability plan of the Company that includes its
officers, the Company may terminate Executive's employment hereunder with
no severance compensation due Executive; provided, however, all Nonvested
Shares, if any, shall immediately vest in full.
(c) Cause. The Company may terminate this Agreement and Executive's
employment 10 days after written notice to Executive for "Cause," which
shall be: (1) Executive's willful, material and irreparable breach of this
Agreement (which remains uncured 10 days after receipt of written notice);
(2) Executive's gross negligence in the performance or intentional
nonperformance (in either case continuing for 10 days after receipt of
written notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's dishonesty or fraud with
respect to the business, reputation or affairs of the Company which
materially and adversely affects the Company (monetarily or otherwise); or
(4) Executive's conviction of a felony crime involving moral turpitude. In
the event of a termination for Cause, Executive shall have no right to any
severance compensation.
(d) Without Cause. Executive may only be terminated without Cause by the
Company during either the Initial Term or Extended Term if such termination
is approved by at least 51% of the members of the Board. Should Executive
be terminated by the Company without Cause or should Executive terminate
with Good Reason, then:
(i) Subject to paragraph 3(h), Executive shall receive from the
Company the equivalent of one year of base salary at the rate then in
effect if the remaining term of the contract is one year or less, and two
years of base salary at the rate then in effect if the remaining term of
the contract is greater than one year, payable ratably over a one-year
period;
(ii) All Nonvested Shares and any stock options immediately shall be
vested in full, and
(iii) Executive shall be vested in all unvested amounts to the
fullest extent permitted under the Company's 401(k) plan.
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Executive shall have "Good Reason" to terminate his employment
hereunder upon the occurrence of any of the following events, unless such
event is agreed to in writing by Executive: (a) Executive is demoted by
means of a material reduction in authority, responsibilities or duties to a
position of less stature or importance within the Company than the position
described in paragraph 1(a) hereof; (b) Executive's annual base salary as
then in effect is reduced; (c) the relocation of the Company's principal
executive offices to a location outside the Morgan City, Louisiana area, or
the Company's requiring Executive to relocate anywhere other than the
Company's principal executive offices; or (d) the Company's requiring
Executive to change his principal residence from the address set forth in
paragraph 16.
If termination of Executive's employment arises out of the Company's
failure to pay Executive on a timely basis the amounts to which he is entitled
under this Agreement or as a result of any other breach of this Agreement by the
Company, as determined by a court of competent jurisdiction or pursuant to the
provisions of paragraph 18 below, the Company shall pay all amounts and damages
to which Executive may be entitled as a result of such breach, including
interest thereon and all reasonable legal fees and expenses and other costs
incurred by Executive to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 shall apply in the event this Agreement is terminated
as a result of a breach by the Company.
Upon termination of this Agreement for any reason provided above, in
addition to the above payments, if any, Executive shall be entitled to receive
all compensation earned and all benefits and reimbursements due through the
effective date of termination, paid to Executive in a lump sum on the effective
date. All other rights and obligations of the Company and Executive under this
Agreement shall cease as of the effective date of termination, except that the
Executive's obligations under paragraphs 3, 5, 6, 7 and 8 herein shall survive
such termination in accordance with their terms.
5. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists, and other property
delivered to or compiled by Executive by or on behalf of the Company or any of
the Companies or their representatives, vendors or customers which pertain to
the business of the Company or any of the Companies, shall be and remain the
property of the Company or the Companies, as the case may be, and be subject at
all times to their discretion and control. Likewise, all correspondence,
reports, records, charts, advertising materials, and other similar data
pertaining to the business, activities or future plans of the Company of the
Companies which is collected by Executive, shall be delivered promptly to the
Company without request by it upon termination of Executive's employment.
6. Inventions. Executive shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one year thereafter, if conceived during employment, and which are
directly related to the business or activities of the Company and which
Executive conceives as a result of his employment by the Company. Executive
hereby assigns and agrees to assign all his interests therein to the Company or
its nominee. Whenever requested to do so by the Company, Executive shall execute
any and all applications,
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assignments or other instruments that the Company shall deem necessary to apply
for and obtain Letters Patent of the United States or any foreign country or to
otherwise protect the Company's interest therein.
7. Trade Secrets. Executive agrees that he will not, during or after the
term of this Agreement, disclose the specific terms of the Company's
relationships or agreements with their respective significant vendors or
customers or any other significant and material trade secret of the Company,
whether in existence or proposed, to any person, firm, partnership, corporation
or business for any reason or purpose whatsoever.
8. Confidentiality.
(a) Executive acknowledges and agrees that all Confidential Information
(as defined below) of the Company is confidential and a valuable, special
and unique asset of the Company that gives the Company an advantage over
its actual and potential, current and future competitors. Executive further
acknowledges and agrees that Executive owes the Company a fiduciary duty to
preserve and protect all Confidential Information from unauthorized
disclosure or unauthorized use, that certain Confidential Information
constitutes "trade secrets" under applicable laws, and that unauthorized
disclosure or unauthorized use of the Company's Confidential Information
would irreparably injure the Company.
(b) Both during the term of Executive's employment and after the
termination of Executive's employment for any reason (including wrongful
termination), Executive shall hold all Confidential Information in strict
confidence, and shall not use any Confidential Information except for the
benefit of the Company, in accordance with the duties assigned to
Executive. Executive shall not, at any time (either during or after the
term of Executive's employment), disclose any Confidential Information to
any person or entity (except other employees of the Company who have a need
to know the information in connection with the performance of their
employment duties), or copy, reproduce, modify, decompile or reverse
engineer any Confidential Information, or remove any Confidential
Information from the Company's premises, without the prior written consent
of the Chairman of the Company, or permit any other person to do so.
Executive shall take reasonable precautions to protect the physical
security of all documents and other material containing Confidential
Information (regardless of the medium on which the Confidential Information
is stored). This Agreement applies to all Confidential Information, whether
now known or later to become known to Executive.
(c) Upon the termination of Executive's employment with the Company for
any reason, and upon request of the Company at any other time, Executive
shall promptly surrender and deliver to the Company all documents and other
written material of any nature containing or pertaining to any Confidential
Information and shall not retain any such document or other material.
Within five days of any such request, Executive shall certify to the
Company in writing that all such materials have been returned.
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(d) As used in this Agreement, the term "Confidential Information" shall
mean any information or material known to or used by or for the Company
(whether or not owned or developed by the Companies and whether or not
developed by Executive) that is not generally known to persons in the
Business. Confidential Information includes, but is not limited to, the
following: all trade secrets of the Companies; all information that the
Companies have marked as confidential or have otherwise described to
Executive (either in writing or orally) as confidential; all nonpublic
information concerning the Companies' products, services, prospective
products or services, research, product designs, prices, discounts, costs,
marketing plans, marketing techniques, market studies, test data,
customers, customer lists and records, suppliers and contracts; all
business records and plans; all personnel files; all financial information
of or concerning the Companies; all information relating to operating
system software, application software, software and system methodology,
hardware platforms, technical information, inventions, computer programs
and listings, source codes, object codes, copyrights and other intellectual
property; all technical specifications; any proprietary information
belonging to the Companies; all computer hardware or software manuals; all
training or instruction manuals; and all data and all computer system
passwords and user codes.
9. No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive, his employment by the
Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Further, Executive agrees to indemnify the Company for any claim,
including, but not limited to, reasonable attorneys' fees and expenses of
investigation, for any such third party that such third party may now have or
may hereafter come to have against the Company based upon or arising out of any
non-competition agreement, invention or secrecy agreement between Executive and
such third party which was in existence as of the date of this Agreement.
10. Assignment; Binding Effect. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. The
Company will require any successor, by agreement in form and substance
reasonably acceptable to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Subject to the
preceding, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
11. Change in Control.
(a) In the event a Change in Control is initiated or occurs during the
Initial Term or Extended Term, then the provisions of this paragraph 11
shall be applicable.
(b) If, on or within two years following the effective date of a Change
in Control, the Company terminates Executive's employment other than for
Cause or Executive terminates his employment for Good Reason, or if
Executive's employment
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with the Company is terminated by the Company within six months before the
effective date of a Change in Control and it is reasonably demonstrated by
Executive that such termination (i) was at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control, or
(ii) otherwise arose in connection with or in anticipation of a Change in
Control, then Executive shall receive from Company:
(i) in a lump sum payment due on the later of the effective date of
Executive's termination or the Change in Control, as the case may be,
the equivalent of three times the sum of (A) Executive's base salary at
the rate in effect on Executive's termination date, plus (B) the last
bonus received by Executive during the twelve months preceding the
Change in Control; and
(ii) all options granted pursuant to paragraph 2(c) automatically
shall become fully vested immediately prior to the Change in Control (or
such earlier time as set by the Board or committee administering the
Plan).
(c) Notwithstanding anything in this Agreement to the contrary, a
termination pursuant to paragraph 11(b) shall operate to automatically
waive in full the noncompetition restrictions imposed on Executive pursuant
to paragraph 3(a).
(d) If it shall be determined that any payment made or benefit (a
"Payment") provided to Executive, whether or not made or provided pursuant
to this Agreement and whether or not upon a Change in Control as defined
herein, is subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, or any successor thereto, the
Company shall pay Executive an amount of cash (the "Additional Amount")
such that the net after-tax benefit received by Executive after paying all
applicable taxes on such Payment and the Additional Amount shall be equal
to the net after-tax amount that Executive would have received with respect
to the Payment if Section 4999 had not been applicable.
12. No Mitigation or Offset. Executive shall not be required to mitigate the
amount of any Company payment provided for in this Agreement by seeking other
employment or otherwise. The amount of any payment required to be paid to
Executive by the Company pursuant to this Agreement shall not be reduced by any
amounts that are owed to the Company by Executive, or by any setoff,
counterclaim, recoupment, defense or other claim, right or action.
13. Release. Notwithstanding anything in this Agreement to the contrary,
Executive shall not be entitled to receive any payments pursuant to this
Agreement unless Executive has executed a general release of all claims
Executive may have against the Company and its affiliates in a form of such
release reasonably acceptable to the Company and such release has become final.
14. Indemnification. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
against Executive), by reason of the fact that he is or was performing services
under this Agreement, then the Company shall indemnify
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Executive against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Executive in
connection therewith. In the event that both Executive and the Company are made
a party to the same third-party action, complaint, suit or proceeding, the
Company agrees to engage competent legal representation, and Executive agrees to
use the same representation, provided that if counsel selected by the Company
shall have a conflict of interest that prevents such counsel from representing
Executive, Executive may engage separate counsel and the Company shall pay all
reasonable attorneys' fees and reasonable expenses of such separate counsel.
Further, while Executive is expected at all times to use his best efforts to
faithfully discharge his duties under this Agreement, Executive cannot be held
liable to the Company for errors or omissions made in good faith where Executive
has not exhibited gross, willful and wanton negligence and misconduct nor
performed criminal and fraudulent acts which materially damage the business of
the Company.
15. Complete Agreement. Executive has no oral representations,
understandings or agreements with the Company or any of its officers, directors
or representatives covering the same subject matter as this Agreement. This
written Agreement is the final, complete an exclusive statement and expression
of the agreement between the Company and Executive and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented by evidence of
any prior or contemporaneous oral or written agreements. This written Agreement
may not be later modified except by a further writing signed by a duly
authorized officer of the Company and Executive, and no term of this Agreement
may be waived except by writing signed by the party waiving the benefit of such
term. Without limiting the generality of the foregoing, either party's failure
to insist on strict compliance with this Agreement shall not be deemed a waiver
thereof.
16. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Company: Conrad Industries, Inc.
150 Front St.
P. O. Box 790
Morgan City, Louisiana 70381
Attn: Chairman of the Board
To Executive: Kenneth G. Myers, Jr.
2111 St. Mary Street
Thibodaux, Louisiana 70301
Notice shall be deemed given and effective on the earlier of three days after
the deposit in the U.S. mail of a writing addressed as above and sent first
class mail, certified, return receipt requested, or when actually received.
Either party may change the address for notice by notifying the other party of
such change in accordance with this paragraph 16.
17. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far
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as is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
18. Dispute Resolutions. Except with respect to injunctive relief as
provided in paragraph 3(b), neither party shall institute a proceeding in any
court or administrative agency to resolve a dispute between the parties before
that party has sought to resolve the dispute through direct negotiation with the
other party. If the dispute is not resolved within two weeks after a demand for
direct negotiation, the parties shall attempt to resolve the dispute through
mediation. If the parties do not promptly agree on a mediator, the parties
shall request the Association of Attorney Mediators in Louisiana (or similar
association) to appoint a mediator. If the mediator is unable to facilitate a
settlement of the dispute within a reasonable period of time, as determined by
the mediator, the mediator shall issue a written statement to the parties to
that effect and any unresolved dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in Morgan City, Louisiana in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting
options), reimbursement of costs, including those incurred to enforce this
Agreement, and interest thereon in the event the arbitrators determine that
Executive was terminated without disability or Cause, as defined in paragraphs
4(b) and 4(c), respectively, or that the Company has otherwise materially
breached this Agreement. A decision by a majority of the arbitration panel
shall be final and binding. Judgment may be entered on the arbitrators' award
in any court having jurisdiction. The costs and expenses, including reasonable
attorneys' fees of the prevailing party in any dispute arising under this
Agreement, will be promptly paid by the other party.
19. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Louisiana without regard to its conflicts
of law provisions, except as expressly provided in paragraph 3(i) above with
respect to the resolution of disputes arising under, or the Company's
enforcement of, paragraph 3 of this Agreement.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective for all purposes as of the Effective Date.
CONRAD INDUSTRIES, INC.
By: /s/ John P. Conrad, Jr.
---------------------------------------
John P. Conrad, Jr.
Co-Chairman of the Board
EXECUTIVE
/s/ Kenneth G. Myers, Jr.
-------------------------------------------
Kenneth G. Myers, Jr.
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[Appendix A - Territorial Restrictions]
[Appendix B - List of Company Benefit Plans]
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