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EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 15th day of May, 1997, (the "Effective
Date") by and between CLEAVER-BROOKS DIVISION of AQUA-CHEM, INC.,
("Cleaver-Brooks"), and Welch Goggins("Goggins").
WITNESSETH:
WHEREAS, Goggins and Cleaver-Brooks are parties to an Employee Agreement
dated the 18th day of August, 1991 (the "Employee Agreement"); and
WHEREAS, Goggins and Cleaver-Brooks desire to terminate the Employee
Agreement and enter into new employment agreements as hereinafter set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the material covenants
hereinafter set forth, the parties hereto agree as follows:
(1) Termination and Release. Cleaver-Brooks and Goggins hereby agree that
the Employee Agreement is hereby terminated as of the Effective Date and each of
them on behalf of themselves and their respective heirs, personal
representatives, successors, assigns and affiliates hereby forever remise,
release and discharge each other and their respective heirs, personal
representatives, successors, assigns and affiliates from any and all
liabilities, obligations, claims and/or causes of action directly or indirectly
relating to or arising under or in connection with the Employee Agreement and/or
Goggins' employment prior to the Effective Date. In consideration for Goggins'
release as set forth herein, Cleaver-Brooks hereby agrees to pay to Goggins on
August 18, 1997, provided that Goggins has not voluntarily terminated his
employment prior to such date, the sum of $125,000 subject to withholding as
required by law.
(2) Position and Duties. Goggins shall be employed by Cleaver-Brooks as a
Regional Manager. In that capacity, Goggins will perform the duties customarily
accompanying such position or such other executive duties which may be assigned
to him by Cleaver-Brooks, provided there shall be no reduction in Goggins'
compensation or fringe benefits by virtue of any change in the duties to be
performed hereunder. Goggins agrees to devote his full time, attention, skill
and best efforts to the performance of his duties hereunder. Goggins agrees not
to engage in any other business or employment, including part-time employment,
during the term of this Agreement without prior written consent of
Cleaver-Brooks.
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(3) Employment. The term of Goggins' employment shall continue until August
18, 1997, after which time it may be terminated upon 30 days prior written
notice either by Goggins or Cleaver-Brooks with or without cause and for any
reason or no reason. In the event Goggins' employment is terminated for any
reason, Goggins shall be entitled to receive his normal salary through the date
of termination. In addition, in the event Goggins' employment is terminated by
Cleaver-Brooks for reasons other than cause, upon Goggins' execution and
delivery of a release satisfactory in form and substance to Cleaver-Brooks
releasing it from any employment related claims and the expiration of any
waiting period for the revocation of such release, Cleaver-Brooks shall continue
Goggins' salary for a period of six months following such termination of
employment by Cleaver-Brooks without cause.
(4) Compensation. During the term of Goggins' employment hereunder, Goggins
shall receive an annual salary of $82,500. The salary shall be reviewed annually
commencing in 1997 and may, in the sole discretion of Cleaver-Brooks, be
increased based upon Goggins' performance and such other factors as
Cleaver-Brooks deems appropriate to consider. In addition to such annual salary,
Goggins shall have the opportunity to participate in such incentive compensation
programs as Cleaver-Brooks, from time to time, makes available to its
Thomasville, Georgia management employees. Goggins' bonus opportunity (dependent
upon the attainment of goals) for 1997 pursuant to the incentive compensation
plan for 1997, shall be 15% of his annual salary of $82,500.
(5) Benefits. Cleaver-Brooks will provide Goggins with such benefits as
Cleaver-Brooks, from time to time, generally makes available to its management
employees. Goggins may continue to use the Cleaver-Brooks, vehicle currently in
his possession until August 18, 1997, at which time he shall return the vehicle.
After August 18, 1997, Cleaver-Brooks shall have no obligation to furnish a
vehicle to Goggins, but in lieu thereof, Cleaver-Brooks shall pay to Goggins a
car allowance of $550 per month. Goggins shall be reimbursed $.11 per mile for
business travel as documented on expense reports in accordance with
Cleaver-Brooks' policy.
(6) Expense Reimbursement. Upon submission of the proper documentation in
accordance with Cleaver-Brooks' policy, Cleaver-Brooks will reimburse Goggins
for the out-of-pocket expenses reasonably incurred by Goggins on behalf of
Cleaver-Brooks in connection with the performance of his duties hereunder,
except that vehicle mileage expenses shall be reimbursed only in accordance with
paragraph (5) above.
(7) Non-Competition Agreement.
(a) In order to induce Cleaver-Brooks to enter into this Agreement,
Goggins agrees that, during the term of this Agreement and for a period ending
at the later of (i) August 17, 1999, or (ii) one year after
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termination of Goggins' employment for any reason, Goggins will not, as a sole
proprietor, employee, agent, partner, co-venturer, shareholder (other than the
ownership of less than 10% of the shares of a corporation whose shares are
traded in a recognized stock exchange or traded in the over-the-counter market),
officer, director, consultant or in any other capacity, directly or indirectly,
(i) work or be employed in any manner for any person, company, or entity engaged
in the business carried on by Cleaver-Brooks; (ii) canvass, contact, solicit or
accept any business from any of Cleaver-Brooks' customers for the purpose of
providing services, products or business substantially similar to the products,
services or business produced or supplied by Cleaver-Brooks; or (iii) induce or
attempt to induce any employee of Cleaver-Brooks to leave the employment of
Cleaver-Brooks. The restrictions set forth above shall pertain solely to the
geographical area consisting of the United States of America and,
notwithstanding anything to the contrary set forth above, shall not extend
beyond two years after the termination of Goggins' employment for any reason.
(b) Goggins acknowledges and agrees that the products of
Cleaver-Brooks, manufactured at the Thomasville, Georgia facility are sold
throughout the United States and Goggins acknowledges that the geographical
restriction set forth herein is reasonable. The parties agree that if a court of
competent jurisdiction shall determine that the duration of the geographical
limitation of any restriction contained in this Agreement is unenforceable, it
is the intention of the parties that the restrictions set forth herein shall not
thereby be terminated, but shall be deemed amended to the extent required to
render them valid and enforceable, such amendment to apply only with respect to
the operation of this paragraph in the jurisdiction of the court which has made
such adjudication.
(c) Goggins agrees that, during the term of his employment and for a
period of two years following termination of employment for any reason, he will
not disclose or in any way use or allow any other person to disclose or use
confidential or proprietary information of Cleaver-Brooks except as reasonably
necessary for the performance of Goggins of services on behalf of
Cleaver-Brooks. Confidential and proprietary information include, but are not
limited to business strategies, pricing, costs, financial data, customer lists,
products, data regarding proposed and/or existing facilities or operations,
market survey and analyses, computer programs or systems and trade secrets of
any kind.
(d) In addition to all other available remedies, Goggins agrees that
Cleaver-Brooks shall be entitled to injunctive relief in the event of any actual
or threatened breach of the provisions of this Paragraph (7).
(8) Termination for Cause. Goggins' employment may be terminated by
Cleaver-Brooks prior to the expiration of the term set forth herein for
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cause. For the purpose of this Agreement, cause shall include, but not limited
to dishonesty or other material misconduct by Goggins in connection with the
performance of his duties, conviction of any crime which substantially relates
to the performance of the duties hereunder, or the willful and continued failure
by Goggins to substantially perform his duties hereunder.
(9) Termination Due to Death or Disability. Goggins' employment shall be
terminated in the event of Goggins' death or disability. Goggins shall be deemed
to be disabled in the event that he is unable to perform his duties called for
hereunder in the opinion of a majority of three (3) physicians, one (1) to be
selected by Cleaver-Brooks, one (a) to be selected by Goggins or his personal
representative and one (1) to be selected by mutual agreement of such two
physicians.
(10) Severability: Assignability. The terms of this Agreement shall be
regarded as several from each other and the invalidity or unenforceability of a
particular term shall not affect the validity and enforceability of any other
terms of the Agreement. This Agreement may not be assigned without the prior
written consent of the parties; provided, however, that this Agreement may be
assigned without consent to a successor to the business of Cleaver-Brooks.
(11) Applicable Law. This Agreement and all the questions of its
interpretation, performance, enforcement and the rights and remedies of the
parties hereto shall be determined in accordance with the laws of the State of
Georgia.
(12) Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the employment of Goggins by Cleaver-Brooks. This Agreement
may not be modified, amended or otherwise altered in any respect except by
written agreement of the parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
AQUA-CHEM, INC.
/s/ Rand McNally
By:
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/s/ P. Welch Goggins, jr
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Welch Goggins, Individually
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