1
EXHIBIT 10.8
AGREEMENT
This AGREEMENT (the "Agreement") is effective as of and from May 1, 1999
(hereinafter the "Effective Date") by and between American Eco Corporation, an
Ontario, Canada corporation whose principal executive offices are in Houston,
Texas (the "Company"), and Michael McGinnis ("Executive") of Houston, Texas.
RECITALS
WHEREAS Executive has served as the President and Chief Executive Officer
of the Company since 1993 and has significant management responsibilities in the
conduct of the Company's business;
AND WHEREAS the Board of Directors of the Company has determined that it is
in the best interests of the Company to retain the Executive's services and to
reinforce and encourage the continued attention and dedication of members of the
Company's management, and the Executive to their assigned duties without
distraction in potentially disturbing circumstances arising from the possibility
of a change in control of the Company or the assertion of claims and actions
against the Company, its employees and consultants;
AND WHEREAS the Company wishes to attract and retain well-qualified
Executive and key personnel and to assure itself of the continuity of its
management;
AND WHEREAS the Company recognizes that Executive is a valuable resource of
the Company and the Company desires to be assured of the continued services of
Executive;
AND WHEREAS Executive is a key employee of the Company and he acknowledges
that his talents and services to the Company are of a special, unique, unusual
and extraordinary character and are of particular and peculiar benefit and
importance to the Company;
AND WHEREAS the Company is concerned that in the event of a possible or
threatened change in control of the Company, uncertainties necessarily arise;
Executive may have concerns about the continuation of his employment status and
responsibilities and may be approached by others offering competing employment
opportunities; the Company, therefore desires to provide Executive with
assurances as to the continuation of his employment status and responsibilities
in such event;
AND WHEREAS the Company further desires to assure Executive that, if a
possible or threatened change in control should arise and executive should be
involved in deliberations or negotiations in connection therewith, Executive
would be in a secure position to consider and participate in such transaction as
objectively as possible in the best interests of the Company and to this end
desires to protect Executive from any direct or implied threat to his financial
well-being;
Page 1 of 22 - May 31, 1999 Initials MEM
DRG
2
AND WHEREAS Executive is willing to continue to serve as such but desires
assurances that in the event of such a change in control he will continue to
have the employment status and responsibilities he could reasonably expect
absent such event and, that in the event this turns out not to be the case, he
will have fair and reasonable severance protection on the basis of his service
to the Company to that time;
AND WHEREAS both the Company and the Executive recognize the increased risk
of litigation and other claims being asserted against officers and directors of
companies in today's business environment;
AND WHEREAS the Bylaws of the Company require the Company to indemnify its
directors and officers to the full extent permitted by law;
AND WHEREAS costs, limits in coverage and availability of director's and
officer's liability insurance policies and developments in the application,
amendment and enforcement of statutory and bylaw indemnification provisions
generally have raised questions concerning the adequacy and reliability of the
protection afforded to directors and officers and have increased the difficulty
of attracting and retaining qualified persons to serve as directors and officers
of public corporations generally;
AND WHEREAS in recognition of the Executive's need for substantial
protection against liability and to enhance and induce the Executive's continued
service to the Company in an effective manner and the Executive's reliance on
the Bylaws, and in part to provide the Executive with specific contractual
assurance that the protection promised by the Bylaws will be available to the
Executive (regardless of, among other things, any amendment to or revocation of
the Bylaws or any change in the composition of the Company's Board of Directors
or acquisition transaction relating to the Company), the Company wishes to
provide in this Agreement for the continuing employment of the Executive and the
indemnification of, and the advancing of expenses to, the Executive to the full
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the coverage of the
Executive under the Company's directors' and officers' liability insurance
policies;
AND WHEREAS the Company wishes to assure itself of the services of the
Executive for the period provided in this Agreement and the Executive wishes to
serve the Company on the terms and conditions hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
Page 2 of 22 - May 31, 1999 Initials MEM
DRG
3
ARTICLE I
ENGAGEMENT
1.1 Employment. The Company hereby employs the Executive and the Executive
hereby accepts Employment by the Company for the period and upon the terms and
conditions contained in this Agreement.
1.2 Office and Duties.
(a) Position. The Executive shall serve the Company as President and
Chief Executive Officer, with authority, duties and responsibilities not less
than the Executive has on the date of this Agreement, with his actions at all
times subject to the direction of the Board of Directors of the Company.
(b) Commitment. Throughout the term of this Agreement, the Executive
shall devote substantially all of his time, energy, skill and best efforts to
the performance of his duties hereunder in a manner that will faithfully and
diligently further the business and interests of the Company. Subject to the
foregoing, the Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations that are disclosed to the Board of Directors and that will not
materially affect the performance of the Executive's duties pursuant to this
Agreement.
1.3 Term. The term of this Agreement shall commence on May 1, 1999 and
shall end on the fifth yearly anniversary of the date on which the Board of
Directors of the Company acting reasonably notifies the Executive that the Board
of Directors has determined to discontinue the automatic daily extension of this
Agreement (the period of time between the commencement and the end of this
Agreement is referred to herein as the "Term").
1.4 Compensation.
(a) Base Salary. The Company shall pay the Executive as compensation
an aggregate salary (the "Base Salary") of Three Hundred Thousand Dollars
(USD$300,000.00) per year in United States funds per year during the Term, or
such greater amount as shall be approved by the Compensation Committee of the
Company's Board of Directors. The Compensation Committee shall review the
Executive's Base Salary at least annually. The Base Salary for each year shall
be paid by the Company in accordance with the regular payroll practices of the
Company.
(b) Annual Bonus. Each year during the Term, the Executive shall be
eligible to participate in an annual bonus pool or profit participation equal in
the aggregate to 5% of the Company's net income, which shall mean the
consolidated net income of the Company for its fiscal year calculated in
accordance with generally accepted accounting principles as applied by the
Company's auditors during their annual audit. The Company shall pay the
Executive such bonus (the "Annual Bonus") no later than 90 days following the
end of the Company's fiscal
Page 3 of 22 - May 31, 1999 Initials MEM
DRG
4
year. The amount of the Annual Bonus to which the Executive may be entitled
shall be determined in advance by the Compensation Committee and shall be
described on Appendix A, which shall be attached to this Agreement. Appendix A
shall be revised from time to time to reflect the Annual Bonus to which the
Executive may be entitled in future years, and a copy of such revised Appendix A
shall be provided to the Executive prior to the start of the year for which an
Annual Bonus is payable; provided, however, that the amount of the annual Bonus
and the conditions for the payment of such amount may not be changed after the
start of the fiscal year for which such Annual Bonus is payable.
(c) Stock Options. The Executive shall be eligible to receive grants
of stock options pursuant to the Company's Employee Stock Option Plan, as
amended May 20, 1999, and as amended hereafter in amounts (if any) and on terms
and conditions to be determined by the Compensation Committee of the Company's
Board of Directors.
(d) Life Insurance. During the Term and subject to the Executive's
qualification under normal life insurance underwriting standards as of the date
hereof and at any policy renewal date, the Company shall provide, at the
Company's expense, a term life insurance policy on the life of the Executive in
a face amount equal to $5,000,000. The proceeds from such policy shall be
payable as follows: 50% to the Company and 50% to the Executive's estate.
(e) Disability Insurance. During the Term and subject to the
Executive's qualification under normal disability insurance underwriting
standards as of the date hereof and at any policy renewal date, the Company
shall provide, at the company's expense, a disability insurance policy that will
pay the Executive, pursuant to the terms of such policy, an annual disability
benefit of $300,000 until the Executive reaches the age of 65.
(f) Fringe Benefits and Perquisites. During the Term, the Executive
shall be entitled to participate in or receive benefits under any plan or
arrangement made available by the Company to its senior executive officers,
including but not limited to any hospitalization, medical, dental or pension
plan, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Nothing paid to the
Executive under any plan or arrangement made available to the Executive shall be
deemed to be in lieu of compensation hereunder.
(g) Automobile Allowance. During the Term, the Executive shall be
provided a car or paid a car allowance of $750.00 per month. This amount shall
be paid on the first day of each month, and the Company shall also reimburse the
Executive for all actual expenses associated with operating and maintaining the
Executive's vehicle. The Executive shall submit receipts or other evidence of
such expenditures, and the Company shall pay these amounts to the Executive
within thirty (30) days of receipt of such documentation.
(h) Payment and Reimbursement of Expenses. During the Term, the
Company shall pay or reimburse the Executive for all reasonable travel and other
expenses incurred by the
Page 4 of 22 - May 31, 1999 Initials MEM
DRG
5
Executive in performing his obligations under this Agreement in accordance with
the policies and procedures of the Company for its senior executive officers,
provided that the Executive properly accounts therefor in accordance with the
regular policies of the Company.
(i) Vacation. During the Term and in accordance with the regular
policies of the Company, the Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its senior executive officers, but not less than four weeks in any calendar
year (prorated in any calendar year in which the Executive is employed hereunder
for less than the entire year in accordance with the number of days in such
calendar year during which the Executive is so employed).
(j) Benefits Not in Lieu of Compensation. No benefit or perquisite
provided to the Executive shall be deemed to be in lieu of Base Salary, Annual
Bonus, or other compensation.
1.5 Termination.
(a) Disability. The company may terminate this Agreement for
Disability. "Disability" shall exist if because of ill health or physical or
mental disability, and notwithstanding reasonable accommodations made by the
Company, the Executive shall have been unable, unwilling or shall have failed to
perform his duties under this Agreement, as determined in good faith by the
Compensation Committee of the Company's Board of Directors, for a period of 180
consecutive days, or if, in any 12-month period, the Executive shall have been
unable or unwilling or shall have failed to perform his duties for a period of
270 days, irrespective of whether or not such days are consecutive.
(b) Cause. The Company may terminate the Executive's employment for
Cause. Termination for "Cause" shall mean termination because of the Executive's
(i) willful gross misconduct that causes material economic harm to the Company
unless the Executive reasonably believed in good faith that such act or non act
was in the best interests of the Company; (ii) final, nonappealable conviction
of a felony, or (iii) material breach of any provision of this Agreement. Items
(i) and (iii) of this subsection shall not constitute Cause unless the Company
notifies the Executive thereof in writing, specifying in reasonable detail the
basis therefor and stating that it is grounds for Cause, and unless the
Executive fails to cure such matter within sixty (60) days to the extent cure is
possible after such notice is sent or given under this Agreement. The Executive
and his counsel shall be permitted to respond and defend himself before the
Board of Directors or any appropriate committee thereof within a reasonable time
after written notification of any proposed termination for Cause under item (i)
or (iii) of this subsection.
(c) Without Cause. During the Term, the Company may terminate the
Executive's employment Without Cause, subject to the provisions of subsection
1.6(d) (Termination Without Cause or for Company Breach). Termination "Without
Cause" shall mean termination of the Executive's employment by the Company other
than termination for Cause or Disability.
Page 5 of 22 - May 31, 1999 Initials DRG
MEM
6
(d) Company Breach. The Executive may terminate his employment
hereunder for Company Breach. For purposes of this Agreement "Company Breach"
shall mean:
(i) without his express written consent, any material reduction
in the authority, duties and responsibilities that the Executive
has on the date of this Agreement, or the assignment to the
Executive of any duties inconsistent with his positions, duties,
responsibilities and status with the Company, or a change in his
reporting responsibilities, titles or offices, or any removal of
the Executive from or any failure to re-elect the Executive to
any of such positions, except in connection with the termination
of his employment for Cause, or retirement or as a result of his
death or by the Executive other than for Company Breach or Change
in Control;
(ii) any reduction in the Executive's Base Salary as in effect on
the date of this Agreement or as the same may be increased from
time to time;
(iii) a relocation of the Company's principal executive offices
to any country other than Harris County, Houston, Texas, or any
county contiguous thereto or the Company's requiring the
Executive to be based anywhere other than Harris County,
Houston, Texas, or any country contiguous thereto, except for
required travel on the Company's business to an extent
substantially consistent with his present business travel
obligations, or, in the event the Executive consents to any
relocation, the failure by the Company (a) to retain a real
estate broker, at the Company's expense, and otherwise assist the
Executive in selling the Executive's principal residence in
Harris County, Houston, Texas, (b) to pay (or reimburse the
Executive) for all reasonable moving expenses incurred by him
relating to a change of his principal residence in connection
with such relocation and (c) to indemnify the Executive against
any loss (defined as the difference between the actual sale price
of such residence and the higher of (1) his aggregate investment
in such residence or (2) the fair market value of such residence
as determined by a real estate appraiser designated by the
Executive and reasonably satisfactory to the Company) realized on
the sale of the Executive's principal residence in connection
with any such change of residence;
(iv) the failure by the Company to continue in effect any benefit
or compensation plan (including but not limited to any stock
option plan, pension plan, life insurance plan, health and
accident plan or disability plan) in which the Executive is
participating (or plans providing
Page 6 of 22 - May 31, 1999 Initials MEM
DRG
7
substantially similar benefits), the taking of any action by the
Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any of
such plans or deprive him of any material fringe benefit enjoyed
by him, or the failure by the Company to provide the Executive
with the number of paid vacation days to which he is then
entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy in effect
on the date hereof;
(v) any failure of the Company to obtain the assumption of, or
the agreement to perform, this Agreement by any successor as
contemplated in Section 4.12 (Binding Effect, Etc.) hereof; or
(vi) any material breach of this Agreement by the Company;
provided, however, that a material breach of this Agreement by the Company shall
not constitute Company Breach unless the Executive notifies the Company in
writing of the breach and stating that such breach is grounds for Company
Breach, and unless the Company fails to cure such breach within sixty (60) days
after such notice is sent or given under this Agreement.
(e) Change in Control. The Executive may forthwith terminate his
employment hereunder at any time or times within twelve (12) months of a Change
in Control (defined below):
"Change in Control" shall mean and shall be deemed to mean any of
the following:
(1) any consolidation, sale, or merger of the Company in
which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's
common stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Company's common stock immediately prior
to the merger have the same proportionate ownership of
common stock of the surviving corporation immediately after
the merger;
(2) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company;
(3) any approval by the stockholders of the Company of any
plan or proposal for the liquidation or dissolution of the
Company;
Page 7 of 22 - May 31, 1999 Initials MEM
DRG
8
(4) the cessation of control (by virtue of their not
constituting a majority of directors) of the Company's Board
of Directors by the individuals (the "Continuing Directors"
who, (x) at the date of this Agreement were directors or,
(y) become directors after the date of this Agreement and
whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds
of the directors then in office who were directors at the
date of this Agreement or whose election or nomination for
election was previously so approved); or
(5) the individuals who were members of the Board of
Directors of the Company immediately prior to a meeting of
the shareholders of the Company involving a contest for the
election of Directors shall not constitute a majority of the
Board of Directors following such election; or
(6) the acquisition of beneficial ownership (within the
meaning of Rule 13d-3 under the Securities Exchange Act of
1934 (USA), as amended) of an aggregate of 15% of the voting
power of the Company's outstanding voting securities by any
person or group (as such term is used in Rule 13d-5 under
such Act) who beneficially owned less than 10% of the voting
power of the Company's outstanding voting securities on the
date hereof, or the acquisition of beneficial ownership of
an additional 5% of the voting power of the Company's
outstanding voting securities by any person or group who
beneficially owned at least 10% of the voting power of the
Company's outstanding voting securities on the date hereof;
provided, however, that notwithstanding the foregoing, an
acquisition shall not constitute a Change in Control
hereunder if the acquirer is (w) the Executive, (x) a
trustee or other fiduciary holding securities under an
employee benefit plan of the Company and acting in such
capacity, (y) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their ownership of voting securities of the
Company or (z) any other person whose acquisition of shares
of voting securities is approved in advance by a majority of
the Continuing Directors; or
(7) pursuant to applicable Canadian and/or United States of
America Bankruptcy or Insolvency laws, in a Chapter 11
Bankruptcy proceeding (US Bankruptcy Code) the appointment
of a trustee, receiver, monitor, liquidator or the
conversion of a case involving the Company to a case under
Chapter 7 (US Bankruptcy Code).
Page 8 of 22 - May 31, 1999 Initials MEM
DRG
9
(f) Without Good Reason. During the Term, at any time or times,
the Executive may terminate his employment Without Good Reason effective
immediately. Termination "Without Good Reason" shall mean termination of the
Executive's employment by the Executive other than termination for Company
Breach or as a result of a Change in Control.
(g) Explanation of Termination of Employment. Any party terminating
this Agreement shall give prompt written notice ("Notice of Termination") to the
other party hereto advising such other party of the termination of this
Agreement. Within thirty (30) days after notification that the Agreement has
been terminated, the terminating party shall deliver to the other party hereto a
written explanation (the "Explanation of Termination of Employment"), which
shall state in reasonable detail the basis for such termination and shall
indicate whether termination is being made for Cause, Without Cause or for
Disability (if the Company has terminated the Agreement) or for Company Breach,
upon a Change in Control or Without Good Reason (if the Executive has terminated
the Agreement).
(h) Date of Termination. "Date of Termination" shall mean the date on
which Notice of Termination is sent or given under this Agreement.
1.6 Compensation During Disability or Upon Termination.
(a) During Disability. During any period that the Executive fails to
perform his duties hereunder because of Disability, he shall continue to receive
his full Base Salary and benefits pursuant to Section 1.4 (Compensation) until
the Date of Termination.
(b) Termination for Disability. If the Company shall terminate the
Executive's employment for Disability, then the Company shall have no further
obligation to make any payment under this Agreement which has not already become
payable, but has not yet been paid, except that the Company shall continue to
provide the Executive with the benefits set forth in Section 1.6(f) (Employee
Benefits) for the period described therein. The Company also shall make any
additional payments necessary to provide the disability benefits set forth in
Section 1.4(e) (Disability Insurance) above.
(c) Termination for Cause or Without Good Reason. If the Company
shall terminate the Executive's employment for Cause or if the Executive shall
terminate his employment Without Good Reason, then the Company shall have no
further obligation to make any payment under this Agreement which has not
already become payable, but has not yet been paid, except as may otherwise be
provided under the terms of any employee benefit programs in which the
Executive is participating.
(d) Termination Without Cause or for Company Breach. If the Company
shall terminate the Executive's employment Without Cause or if the Executive
shall terminate his employment for Company Breach, then the Company shall pay to
the Executive as severance
Page 9 of 22 - May 31, 1999 Initials MEM
DRG
10
pay in a lump sum no later than the 15th day following the Date of Termination,
the following amounts:
i) any payment of the Base Salary (at the rate in effect as of
the Date of Termination) and Annual Bonus which has already become
payable, but has not yet been paid, through to the Date of
Termination; and
ii) his Annual Bonus for the fiscal year in which the Date of
Termination occurs, as pro-rated through to the Date of Termination.
If such Annual Bonus is dependent upon financial results for the
fiscal year that are unknown at the Date of Termination, his Annual
Bonus received for the past fiscal year shall substitute as his Annual
Bonus for the fiscal year in which the Date of Termination occurs; and
iii) in lieu of any further Base Salary and Annual Bonus for the
five (5) year period subsequent to the Date of Termination, an amount
equal to the product of (A) the sum of the Executive's Base Salary at
the rate in effect as of the Date of Termination, plus the average
Annual Bonus paid to the Executive during the preceding two (2) years,
(or such shorter period for which any Annual Bonus has been paid),
multiplied by (B) the number five (5).
The Company shall also continue to provide the Executive with the
employee benefits set forth in Section 1.6(f) (Employee Benefits) for the period
described therein.
If the Executive terminates his employment for Company Breach based
upon a reduction by the Company of the Executive's Base Salary, then for
purposes of this Section 1.6(d) (Termination Without Cause or for Company
Breach), the Executive's Base Salary as of the Date of Termination shall be
deemed to be the Executive's Base Salary immediately prior to the said reduction
that the Executive claims as grounds for Company Breach.
(e) Termination Upon a Change in Control. If the Executive terminates
his employment after a Change in Control pursuant to Section 1.5(e) (Change in
Control), then the Company shall pay to the Executive as severance pay and as
liquidated damages (because actual damages are difficult to ascertain), in a
lump sum, in cash, within fifteen (15) days after termination, an amount equal
to the amounts provided in Section 1.6(d) (i), (ii) and (iii) above. In
addition, if the Executive is liable for the payment of any excise or GST taxes
(the "Basic Excise Tax") because of Section 4999 of the Internal Revenue Code of
1986 (USA), as amended (the "Code"), and the Revenue Canada regulations, or any
successor or similar provisions, with respect to any payments or benefits
received or to be received from the Company or its affiliates, or any successor
to the Company or its affiliates, whether provided under this Agreement or
otherwise, the Company shall pay the Executive an amount (the "Special
Reimbursement") which, after payment by the Executive (or on the Executive's
behalf) of any federal, state, provincial, and local taxes applicable thereto,
including, without limitation, any
Page 10 of 22 - May 31, 1999 Initials MEM
DRG
11
further excise tax under such Section 4999 of the Code, Revenue Canada
regulations, on, with respect to or resulting from the Special Reimbursement,
equal to the net amount of the Basic Excise Tax. The determination of the amount
of the payment described in this Section 1.6(e) shall be made by the Company's
independent auditors.
(f) Employment Benefits. Unless the Company terminates the
Executive's employment for Cause or the Executive terminates his employment
Without Good Reason, the Company shall maintain in full force and effect, for
the continued benefit of Executive and, if applicable, his wife and children,
the employee benefits set forth in Sections 1.4(d) (Life Insurance) and 1.4(e)
(Disability Insurance), and any hospitalization, medical and dental coverage
included in Section 1.4(f) (Fringe Benefits and Perquisites) above that he was
entitled to receive immediately prior to the Date of Termination (subject to the
general terms and conditions of the plans and programs under which he receives
such benefits) for the balance of the Term or for the period provided for under
the terms and conditions of such plans and programs, whichever is longer, with
the full amount of any applicable premiums to be borne by the Company.
(g) No Mitigation. The Executive shall not be required to mitigate
the amount of any payment provided for in this Section 1.6 (Compensation During
Disability or Upon Termination) by seeking other employment's or otherwise.
(h) Survival of Stock Options. Notwithstanding any of the foregoing
relative to Termination the Company agrees that any stock options granted to the
Executive shall remain in force for a period of not less than twelve (12) months
following the date of termination.
(i) Liquidated Claim. The parties agree that any payments stipulated
hereunder constitute a reasonable estimate of the damages which would be
incurred in the event of termination of the employment of the Executive and in
no event shall such payments be construed as a penalty.
(j) All stock options and awards to which the Executive is entitled
will immediately vest and the time for exercising any option will be the later
of as specified in the plan or pursuant to subparagraph (h) above as if the
Executive were still employed by the Company; provided however if the immediate
vesting of all benefits under the plan is not permitted by the plan, then the
benefits will be vested only to the extent authorized or permitted by the plan.
(k) If Executive elects to treat the termination as retirement then
on the Date of Termination, the Executive shall be deemed to have retired from
the Company. At that time, or at such later time as he may elect consistent with
the terms of any applicable plan or benefit, in order to receive benefits or
avoid or minimize any applicable early pension reduction provisions, he shall be
entitled to commence to receive total combined qualified and non-qualified
retirement benefits to which he is entitled hereunder; or, his total
non-qualified retirement benefit hereunder if under the terms of the Company's
qualified retirement plan or
Page 11 of 22 - May 31, 1999 Initials MEM
DRG
12
salaried employees he is not entitled to a qualified benefit. Executive may
treat the termination as termination other than "retirement" if Executive so
elects and may defer "retirement" to a later date if permitted by any applicable
plan.
1.7 Death of Executive. If the Executive dies prior to the expiration of
this Agreement, the obligations under this Agreement shall automatically
terminate and all compensation to which the Executive is or would have been
entitled hereunder (including without limitation under Sections 1.4(a) (Base
Salary) and 1.4(b) (Annual Bonus)) shall terminate as of the end of the month in
which the Executive's death occurs; provided, however, that (i) the Company
shall pay to the Executive's estate, as soon as practicable, a prorated Annual
Bonus in accordance with the Company's annual bonus plan; (ii) for the balance
of the Term, the Executive's wife and children shall be entitled to continue
participation in the Company's group hospitalization, medical and dental plans
(if any), with the full amount of any premium to be borne by the Company; (iii)
the Executive's named beneficiary or beneficiaries shall receive the benefits
payable pursuant to Section 1.4(d) (Life Insurance) hereof and such
reimbursement as may have been due to the Executive pursuant to Section 1.4(h)
(Payment and Reimbursement of Expenses) hereof; and (iv) the Company shall pay
to the Executive's estate within thirty (30) days of his decease an amount equal
to one time the Annual Base Salary.
1.8 Confidentiality of Settlement. The parties hereto agree that any
payment pursuant to this Article shall remain confidential as between them and
shall not be disclosed by any of them to any person, corporation, group or
organization whatsoever with the exception of each party's legal and financial
advisors and except as may be required by the Toronto Stock Exchange, Nasdaq or
by applicable laws.
ARTICLE 2
NON-COMPETITION AND CONFIDENTIALITY
2.1 Non-Competition.
(a) Description of Proscribed Actions. Throughout the Executive's
employment during the term of this Agreement and, unless the within Agreement is
not mutually renewed at the end of its term, or unless the within Agreement
terminates pursuant to Section 1.5(a) (Disability), Section 1.5(c) (Without
Cause). Section 1.5(d) (Company Breach), or Section 1.5(e) (Change in Control),
for a period of two (2) years after termination of the Executive's employment
within Canada and the United States of America, in consideration for Company's
obligations and the payment of all sums due hereunder, including without
limitation the Company's disclosure (pursuant to Section 2.2(b) (Obligation of
The Company) below) of Confidential Information and the Company's agreement to
indemnify the Executive (pursuant to Article 3 (Indemnification) hereof), the
Executive shall not:
Page 12 of 22 - May 31, 1999 Initials MEM
DRG
13
(i) directly or indirectly, engage or invest in, own, manage,
operate, control or participate in the ownership, management,
operation or control of, be employed by, associated or in any
manner connected with, or render or render services or advice to,
any Competing Business (as defined in Section 2.1(d) below);
provided, however, that the Executive may invest in the
securities of any enterprise if (x) such securities are listed on
any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of
1934 (USA) and (y) the Executive does not beneficially own (as
defined by Rule 13d-3 promulgated under the Securities Exchange
Act of 1934) in excess of 5% percent of the outstanding capital
stock of such enterprise;
(ii) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid) stockholder, partner
or in any other individual or representative capacity whatsoever,
either for his own benefit or for the benefit of any other person
or entity, solicit, divert or take away any suppliers, customers
or clients of the Company or any of its Affiliates (as defined in
Section 2.1(d) below); or
(iii) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid), stockholder, partner
or in any other individual or representative capacity whatsoever,
either for his own benefit or for the benefit of any other person
or entity, either (i) hire, attempt to hire, contact or solicit
with respect to hiring, any employee of the Company or any
Affiliate thereof, (ii) induce or otherwise counsel, advise or
encourage any employee of the Company or any Affiliate thereof to
leave the employment of the Company or any Affiliate thereof, or
(iii) induce any representative or agent of the Company or any
Affiliate thereof to terminate or modify its relationship with
the Company or such Affiliate.
(b) Nature of Restrictions. The Executive acknowledges that the
business of the Company and its Affiliates is in Canada and the United States of
America and that the Restrictions imposed by this Agreement are legitimate,
reasonable and necessary to protect the Company's and its Affiliates' investment
in their businesses and the goodwill thereof. The Executive acknowledges that
the scope and duration of the restrictions contained herein are reasonable in
light of the time that the Executive has been engaged in the business of the
Company and its Affiliates, the Executive's reputation in the markets for the
Company's and its Affiliates' businesses and the Executive's relationship with
the suppliers, customers and clients of the Company and its Affiliates. The
Executive further acknowledges that the restrictions contained herein are not
burdensome to the Executive in light of the consideration paid therefor and the
other opportunities that remain open to the Executive. Moreover, the Executive
acknowledges that he has other means available to him for the pursuit of his
livelihood.
Page 13 of 22 - May 31, 1999 Initials MEM
DRG
14
(c) Competing Business. "Competing Business" shall mean any
individual, business, firm, company, partnership, joint venture, organization,
or other entity engaged in the industrial maintenance services and specialty
fabrication businesses in Canada and the United States of America market areas
in which the Company or any of its Affiliates does business at any time during
the Executive's employment with the Company.
(d) Affiliate. When used with reference to the Company, "Affiliate"
shall mean any person or entity that directly or indirectly through one or more
intermediaries controls or is controlled by or is under common control with the
Company.
2.2 Confidentiality. For the purposes of this Section 2.2
(Confidentiality), the term "the Company" shall be construed also to include any
and all subsidiaries or Affiliates of the Company.
(a) Confidential Information. "Confidential Information" shall mean
information that is used in the Company's business and
(i) is proprietary to, about or created by the Company;
(ii) gives the Company some competitive advantage, the
opportunity of obtaining such advantage or the disclosure of
which could be detrimental to the interests of the Company;
(iii) is not typically disclosed to non-employees by the Company,
or otherwise is treated as confidential by the Company; or
(iv) is designated as Confidential Information by the Company.
Confidential Information shall not include information publicly known
(other than as a result of a disclosure by the Executive). The phrase "publicly
known" shall mean readily accessible to the public in a written publication.
(b) Obligation of The Company. During the Term, the Company shall
provide access to, or furnish to, the Executive Confidential Information of the
Company necessary to enable the Executive properly to perform his obligations
under this Agreement.
(c) Non-Disclosure. The Executive acknowledges, understands and
agrees that all Confidential Information, whether developed by the Company or
others or whether developed by the Executive while carrying out the terms and
provisions of this Agreement (or previously while serving as an officer of the
Company), shall be the exclusive and confidential property of the Company and
(i) shall not be disclosed to any person other than employees of the Company and
professionals engaged on behalf of the Company (and any one else who has a need
to know), and other than disclosure in the scope of the Company's business in
accordance with the Company's policies for disclosing information, (ii) shall be
safeguarded and kept from
Page 14 of 22 - May 31, 1999 Initials MEM
DRG
15
unintentional disclosure and (iii) shall not be used for the Executive's
personal benefit. Subject to the terms of the preceding sentence, the Executive
shall not use, copy or transfer Confidential Information other than as is
necessary in carrying out his duties under this Agreement.
2.3 Injunctive Relief. Because of the Executive's experience and
reputation in the industries in which the Company operates, and because of the
unique nature of the Confidential Information, the Executive acknowledges,
understands and agrees that the Company will suffer immediate and irreparable
harm if the Executive fails to comply with any of his obligations under Article
2 (Non-Competition and Confidentiality) of this Agreement, and that monetary
damages will be inadequate to compensate the Company for such breach.
Accordingly, the Executive agrees that the Company shall, in addition to any
other remedies available to it at law or in equity, be entitled to injunctive
relief to enforce the terms of Article 2 (Non-Competition and Confidentiality),
without the necessity of proving inadequacy of legal remedies or irreparable
harm.
ARTICLE 3
INDEMNIFICATION
3.1 Basic Indemnification Arrangement.
(a) Claims Arising from Executive's Position with the Company. In
addition to any separate agreements between the Executive and the Company
relating to indemnification, the Company will indemnify and hold harmless the
Executive, to the fullest extent permitted by applicable law, in respect of any
liability, damage, cost or expense (including reasonable counsel fees) incurred
in connection with the defense of any claim, action, suit or proceeding to which
the Executive is a party, or threat thereof, by reason of his being or having
been an officer or director of the Company or any subsidiary or affiliate of
the Company, or his serving or having served at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, business organization, enterprise or other entity,
including service with respect to employee benefit plans. Without limiting the
generality of the foregoing, the Company will pay the expenses (including
reasonable counsel fees) of defending any such claim, action, suit or proceeding
in advance of its final disposition.
(b) Enforcement Costs. The Company is aware that upon the occurrence
of a Change in Control, or under other circumstances even when a Change in
Control has not occurred, the Board of Directors or a shareholder of the Company
may then cause or attempt to cause the Company to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the Company
to institute, or may institute, litigation seeking to have this Agreement
declared unenforceable, or may take, or attempt to take other action to deny
Executive the benefits intended under this Agreement, or actions may be taken to
enforce the non-competition or confidentiality provisions of this Agreement. In
these circumstances, the purpose of this Agreement could be frustrated. It is
the intent of the parties that Executive not be required to incur the legal fees
and expenses associated with the protection or enforcement
Page 15 of 22 - May 31, 1999 Initials MEM
DRG
16
of his rights under this Agreement by litigation or other legal action because
such costs would substantially detract from the benefits intended to be extended
to Executive hereunder, nor be bound to negotiate any settlement of his rights
hereunder under threat of incurring such costs. Accordingly, if at any time
after the Effective Date of this Agreement, it should appear to the Executive
that the Company is or has acted contrary to or is failing or has failed to
comply with any of its obligations under this Agreement for the reason that it
regards this Agreement to be void or unenforceable, that Executive has violated
the terms of this Agreement, or for any other reason, or that the Company has
purported to terminate his employment for cause or is in the course of doing so,
or is withholding payments or benefits, or is threatening to withhold payments
or benefits, contrary to this Agreement, or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any litigation or other legal action designed to deny, diminish or
to recover from Executive the benefits provided or intended to be provided to
him hereunder, and the Executive has acted in good faith to perform his
obligations under this Agreement, the Company irrevocably authorizes Executive
from time to time to retain counsel of his choice at the expense of the company
to represent him in connection with the protection and enforcement of his rights
hereunder including, without limitation, representation in connection with
termination of his employment or withholding of benefits or payments contrary to
this Agreement or with the initiation or defense of any litigation or any other
legal action, whether by or against the Executive or the Company or any
Director, Officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Company is not authorized to withhold the periodic payment of
attorney's fees and expenses hereunder based upon any belief or assertion by the
Company that Executive has not acted in good faith or has violated this
Agreement. If Company subsequently establishes that Executive was not acting in
good faith and has violated this Agreement, Executive will be liable to the
Company for reimbursement of amounts paid due to Executive's actions not based
on good faith and in violation of this Agreement. The reasonable fees and
expenses of counsel selected from time to time by Executive as hereinabove
provided shall be paid or reimbursed to Executive by the Company, on a regular,
periodic basis within thirty (30) days after presentation by Executive of a
statement or statements prepared by such counsel in accordance with its
customary practices, up to a maximum aggregate amount of $250,000.00
(c) Liability Insurance. During the Term, the Company agrees to
continue on the Executive's behalf, directors and officers insurance or any
other indemnity policy presently carried on behalf of the Executive, and further
agrees to supplement any such existing policy to cover all actions taken by the
Executive in connection with his employment by the Company.
ARTICLE 4
MISCELLANEOUS
4.1 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
Page 16 of 22 - May 31, 1999 Initials MEM
DRG
17
4.2 Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power, or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence.
4.3 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received when sent by telecopy (with a copy sent by mail) or when personally
delivered or one business day after it is sent by overnight service, addressed
as set forth below:
If to the Executive:
Michael E. McGinnis
15226 Jones Road
Houston, Texas 77070
U.S.A.
If to the Company:
American Eco Corporation
11011 Jones Road
Houston, Texas 77070 U.S.A.
Attn: Vice-President
And to:
American Eco Corporation
154 University Avenue, Suite 200
Toronto, Ontario M5H 3Y9
Attn: The Chairman
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this subsection for the giving of notice, which shall be effective only upon
receipt.
4.4 Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
Page 17 of 22 - May 31, 1999. Initials MEM
DRG
18
4.5 Partial Invalidity. In the event that any part, portion, paragraph,
clause, article or section of this Agreement is found to be invalid or
unenforceable for any reason, the remaining provisions of this Agreement shall
be binding upon the parties hereto and the Agreement will be construed to give
meaning to the remaining provisions of this Agreement in accordance with the
intent of this Agreement.
4.6 Effect of Prior Agreements. On and as of 12:00 o'clock noon of the
Effective Date all prior employment and non-competition contracts between
Company and Executive are hereby amended, modified and superseded by this
Agreement insofar as future employment, compensation, non-competition,
confidentiality, accrual of payments or any form of compensation or benefits
from the Company are concerned. This Agreement does not release or relieve
Company from its liability or obligation with respect to any compensation,
payments, or benefits already accrued to Executive, nor to any vesting of
benefits or other rights which are attributable to length of employment,
seniority or other such matters. This agreement does not relieve Executive of
any prior non-competition or confidentiality obligations and agreements and the
same are hereby modified and amended as to future matters and future
confidentiality even as to matters accruing prior to the Effective Date hereof.
4.7 Headings: Index. The headings of paragraphs and Index of Defined Terms
herein are included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this Agreement.
4.8 Applicable Law and Jurisdiction. This Agreement and all of the rights
and obligations arising herefrom shall be interpreted and applied in accordance
with the laws of the Province of Ontario and the courts of the Province of
Ontario shall have exclusive jurisdiction to determine all disputes, relating to
this Agreement and all of the rights and obligations created hereby. The parties
hereto hereby irrevocably attorn to the jurisdiction of the courts of the
Province of Ontario.
4.9 Injunctive Relief. In the event that the Company breaches any of the
terms of the within agreement the Company acknowledges that the Executive shall
have in addition to any other remedies available to him either in law or in
equity the right to seek injunctive relief in court as provided for Company in
Section 2.3 (Injunctive Relief) of this Agreement and further Executive inter
alia has the right to a judicial determination that he should be indemnified by
the Company (as provided for in Section 3 of this Agreement).
4.10 Survival. The covenants and agreements of the parties set forth in
Article 2 (Non-Competition and Confidentiality), Article 3 (Indemnification),
Article 4 (Miscellaneous) and Article 5 (Additional) are of a continuing nature
and shall survive the expiration, termination or cancellation of this Agreement,
regardless of the reason therefor.
4.11 No Duplication of Payments: Subrogation. The Company shall not be
liable under this Agreement to make any payment in connection with any claim
made against the Executive to the extent the Executive have otherwise actually
received payment (under any insurance
Page 18 of 22 - May 31, 1999 Initials MEM
DRG
19
policy, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder. In
the event the Executive actually receives payment (under any insurance policy,
Bylaw or otherwise) of any amount with respect to which the Company has already
indemnified or subsequently indemnifies the Executive, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Executive, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
4.12 Binding Effect. Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company), heirs, executors and administrators. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part, of the business or assets of the Company, by written agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. The
indemnity provisions of this Agreement shall continue in effect regardless of
whether the Executive continues to serve as an employee of the Company. If the
company should split, divide or otherwise become more than one entity, all
liability and obligations of the Company shall be the joint and several
liability and obligations of all of the entities.
4.13 Contribution. If the indemnity contained in this Agreement is
unavailable or insufficient to hold the Executive harmless in a Claim for an
Indemnifiable Event, then separate from and in addition to the indemnity
provided elsewhere herein, the Company shall contribute to Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by or on behalf of the Executive in connection with such Claim in such
proportion as appropriately reflects the relative benefits received by, and
fault of, the Company on the one hand and the Executive on the other in the
acts, transactions or matters to which the Claim relates and other equitable
considerations.
4.14 The Recitals are an integral part of the within Agreement.
4.15 Further Assurances. The parties hereto shall do, execute, acknowledge
and deliver or cause to be done, executed, acknowledged and delivered such
further acts and documents as shall be reasonably required to accomplish the
intention of this Agreement.
4.16 Wherever any monetary amount is to be determined or specified in any
notice permitted or required to be given under this Agreement, or where any
monetary amount is to be determined for any purpose hereunder, such amount shall
be quoted or stated as the case may be in U.S. dollars.
Page 19 of 22 - May 31, 1999 Initials MEM
DRG
20
4.17 Company. Company means American Eco Corporation, an Ontario
corporation, as the same presently exists, as well as any and all successors,
regardless of the nature of the entity or the province, state or nation of
organization, whether by reorganization, merger, consolidation, absorption or
dissolution.
4.18 Non-Exclusive Agreement. The specific arrangements referred to herein
are not intended to exclude or limit Executive's participation in other benefits
available to executive personnel generally, or to preclude or limit other
compensation or benefits as may be authorized by the Board of Directors of the
company at any time, or to limit or reduce any compensation or benefits to which
Executive would be entitled but for this Agreement.
4.19 Non-Alienation. The Executive shall not have any right to pledge
hypothecate, anticipate, or in any way create a lien upon any amounts provided
under this Agreement, and no payments or benefits due hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts
or by operation of law. So long as the Executive lives, no person, other than
the parties hereto, shall have any rights under or interest in this Agreement or
the subject matter hereof. Upon the death of the Executive, his Executors,
Administrators, devisees and heirs, in that order, shall have the right to
enforce the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officer thereunto duly authorized, and Executive have signed
this Agreement, all as of the day and year first above written.
AMERICAN ECO CORPORATION
By: /s/ J.C. PENNIE
-------------------------------------
Name J.C. Pennie
Title: Chairman
I have authority to bind the Corporation
By: /s/ DON. R. GETTY
--------------------------------------
Hon. Donald Getty,
Chairman, Compensation Committee
& Director
/s/ MICHAEL E. MCGINNIS
--------------------------------------
Michael E. McGinnis
Page 20 of 22 - May 31, 1999 Initials MEM
DRG
21
INDEX OF DEFINED TERMS
TERM SECTION
- ---- -------
Affiliate 2.1(e)
Agreement Preamble
Additional Compensation 1.4(b)
Base Salary 1.4(a)
Cause 1.5(b)
Change in Control 1.5(e)
Company Preamble
Company Breach 1.5(d)
Competing Business 2.1(d)
Confidential Information 2.2(a)
Date of Termination 1.5(h)
Executive & his Management Designee Preamble
Executive & his Management Designee Claims 4.4
Explanation of Termination of employment 1.5(g)
Notice of Termination 1.5(g)
Term 1.3
Without Cause 1.5(c)
Without Good Reason 1.5(f)
Page 21 of 22 - May 31, 1999 Initials MEM
DRG
22
APPENDIX A
CALCULATION OF THE ANNUAL BONUS POOL
Subject to the adequacy of the Company's Annual Bonus Pool, the Executive shall
be paid an Annual Bonus which shall be determined and paid on or before February
28th in each year, for the fiscal year ended the preceding November 30th, as set
forth below:
50% of the Executive's Base Salary if the Company's earning per share are
equal to or greater than budget of US$0.30 up to US$0.50 per share; or
100% of the Executive's Base Salary if the Company's earning per share are
equal to or greater than US$0.51 to US$1.00 per share; or
150% of the Executive's Base Salary if the Company's earning per share are
equal to or greater than US$1.01 to US$1.50 per share; or
200% of the Executive's Base Salary if the Company's earnings per share are
equal to or greater than US$1.51 per share.
Page 22 of 22 - May 31, 1999 Initials MEM
DRG