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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective as of
May 1, 2000 by and between The Shaw Group Inc., a Louisiana corporation
(collectively with its affiliates and subsidiaries hereinafter referred to as
"Company"), and Robert L. Belk ("Employee").
WHEREAS, the Company employs Employee and desires to continue such
employment relationship and Employee desires to continue such employment;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment by the Company, on the terms and conditions set forth in this
Agreement.
2. Term of Employment. Subject to the provisions for earlier
termination provided in this Agreement, the term of this agreement (the "Term")
shall be three (3) years commencing on the date hereof, and shall be
automatically renewed on each day following the date hereof so that on any given
day the unexpired portion of the Term of this Agreement shall be three (3)
years. Notwithstanding the foregoing provision, at any time after the date
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hereof the Company or Employee may give written notice to the other party that
the Term of this Agreement shall not be further renewed from and after a
subsequent date specified in such notice (the "fixed term date"), in which event
the Term of this Agreement shall become fixed and this Agreement shall terminate
on the third anniversary of the fixed term date.
3. Employee's Duties. During the Term of this Agreement, Employee shall
serve as the Executive Vice President & Chief Financial Officer of the Company,
with such duties and responsibilities as may from time to time be assigned to
him by the board of directors of the Company (the "Board"), provided that such
duties are consistent with the customary duties of such position.
Employee agrees to devote his full attention and time during normal
business hours to the business and affairs of the Company and to use reasonable
best efforts to perform faithfully and efficiently his duties and
responsibilities. Employee shall not, either directly or indirectly, enter into
any business or employment with or for any person, firm, association or
corporation other than the Company during the Term of this Agreement; provided,
however, that Employee shall not be prohibited from making financial investments
in any other company or business or from serving on the board of directors of
any other company. Employee shall at all times observe and comply with all
lawful directions and instructions of the Board.
4. Base Compensation. For services rendered by Employee under this
Agreement, the Company shall pay to Employee a base salary ("Base
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Compensation") of $350,000.00 per annum payable in accordance with the Company's
customary pay periods and subject to customary withholdings. The amount of Base
Compensation shall be reviewed by the Board on an annual basis as of the close
of each fiscal year of the Company and may be increased as the Board may deem
appropriate. In the event the Board deems it appropriate to increase Employee's
annual base salary, said increased amount shall thereafter be the "Base
Compensation". Employee's Base Compensation, as increased from time to time, may
not thereafter be decreased unless agreed to by Employee. Nothing contained
herein shall prevent the Board from paying additional compensation to Employee
in the form of bonuses or otherwise during the Term of this Agreement.
5. Additional Benefits. In addition to the Base Compensation provided
for in Section 4 herein, Employee shall be entitled to the following:
(a) Expenses. The Company shall, in accordance with any rules
and policies that it may establish from time to time for executive
officers, reimburse Employee for business expenses reasonably
incurred in the performance of his duties. It is understood that
Employee is authorized to incur reasonable business expenses for
promoting the business of the Company, including reasonable
expenditures for travel, lodging, meals and client or business
associate entertainment. Request for reimbursement for such expenses
must be accompanied by appropriate documentation.
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(b) Automobile Allowance. Employee shall be entitled to
receive a monthly automobile allowance of $850.00 (Eight Hundred
Fifty Dollars and 00/100) payable on the first of each month during
the Term, which will fully reimburse Employee for the cost of
leasing or purchasing, and the insurance, therefor, of an automobile
for Employee's business use. The Company may increase as the Board
deems appropriate. Employee shall purchase and maintain automobile
insurance covering the automobile with such limits as may be
required by the Company from time to time. In addition to the
foregoing, the Company shall reimburse Employee for gasoline
expenditures related to use of such vehicle, provided the requests
for reimbursement are accompanied by appropriate documentation.
(c) Vacation. Employee shall be entitled to four (4)
weeks of vacation per year, without any loss of compensation or
benefits. Employee shall be entitled to carry forward any unused
vacation time.
(d) General Benefits. Employee shall be entitled to
participate in the various employee benefit plans or programs
provided to the employees of the company in general, including but
not limited to, health, dental, disability, 401K and life insurance
plans, subject to the eligibility requirements with respect to each
of such benefit plans or programs, and such other benefits or
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perquisites as may be approved by the Board during the Term of this
Agreement. Nothing in this paragraph shall be deemed to prohibit the
Company from making any changes in any of the plans, programs or
benefits described in this Section 5, provided the change similarly
affects all executive officers of the Company similarly situated.
(e) Options. Upon the resignation for Good Reason as
defined in Section 7 (e), discharge as defined in Section 7 (c) (i),
or disability as defined in Section 7 (d), Employee shall be
considered as immediately and totally vested in any and all stock
options or other similar awards previously made to Employee by the
Company or its subsidiaries under a "Long Term Incentive Plan" duly
adopted by the Board (such options or similar awards are hereinafter
collectively referred to as "Options"). In the event that the
Options become vested under this paragraph, employee will be allowed
not less than one year from the date of such vesting in which to
exercise such options.
6. Confidential Information. Employee, during the Term, may have access
to and become familiar with confidential information, secrets and proprietary
information concerning the business and affairs of the Company. As to such
confidential information, Employee agrees as follows:
(a) During the employment of Employee with the Company
and thereafter Employee will not, either directly or
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indirectly, disclose to any third party without the written
permission of the Company, nor use in any way (except as required in
the course of his employment with the Company) any confidential
information, secret or proprietary information of the Company. In
the event of a breach or threatened breach of the provisions of this
Section 6 (a), the Company shall be entitled, in addition to any
other remedies available to the Company, to an injunction
restraining Employee from disclosing such confidential information.
(b) Upon termination of employment of Employee, for
whatever reason, Employee shall surrender to the Company any and all
documents, manuals, correspondence, reports, records and similar
items then or thereafter coming into the possession of Employee
which contain any confidential, secret or proprietary information of
the Company.
7. Termination This Agreement may be terminated prior to the end of its
Term as set forth below:
(a) Resignation (other than for Good Reason). Employee
may resign, including by reason of retirement, his position at any
time by providing written notice of resignation to the Company in
accordance with Section 11 hereof. In the event of such resignation,
except in the case of resignation for Good Reason (as defined
below), this Agreement shall terminate and Employee shall
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not be entitled to further compensation pursuant to this Agreement
other than the payment of any unpaid Base Compensation accrued
hereunder as of the date of Employee's resignation.
(b) Death. If Employee's employment is terminated due to
his death, one (1) year of Employee's Base Compensation shall be
paid by the Company in lump sum in cash within thirty (30) days
after Employee's death to Employee's surviving spouse or estate, and
one (1) year of paid group health and dental insurance benefits
shall be provided by the Company to Employee's surviving spouse and
the minor children, and after said payments and provision of
insurance benefits, this Agreement shall terminate and the Company
shall have no obligations to Employee or his legal representatives
with respect to this Agreement other than the payment of any unpaid
Base Compensation previously accrued hereunder.
(c) Discharge.
(i) The Company may terminate Employee's employment
for any reason at any time upon written notice thereof
delivered to Employee in accordance with Section 11 hereof. In
the event that Employee's employment is terminated during the
Term by the Company for any reason other than his Misconduct
or Disability (both as defined
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below), then (A) the Company shall pay in lump sum in cash to
Employee, within fifteen (15) days following the date of
termination, an amount equal to the product of (i) Employee's
Base Compensation as in effect immediately prior to Employee's
termination, multiplied by (ii) the Remaining Term, (B) for
the Remaining Term, the Company, at its cost, shall provide or
arrange to provide Employee (and, as applicable, Employee's
dependents) with disability, accident and group health
insurance benefits substantially similar to those which
Employee (and Employee's dependents) were receiving
immediately prior to Employee's termination; however, the
welfare benefits otherwise receivable by Employee pursuant to
this clause (B) shall be reduced to the extent comparable
welfare benefits are actually received by Employee (and/or
Employee's dependents) during such period under any other
employer's welfare plan(s) or program(s) , with Employee being
obligated to promptly disclose to the Company any such
comparable welfare benefits, (C) in addition to the
aforementioned compensation and benefits, the Company shall
pay in lump sum in cash to Employee within fifteen (15) days
following the date of termination an amount equal to the
product of (i) Employee's highest bonus paid by the Company
during the
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most recent three (3) years immediately prior to the Date of
Termination, multiplied by (ii) the Remaining Term, and (D)
Employee shall be considered as immediately and totally vested
in any and all Options previously made to Employee by Company
or its subsidiaries.
(ii) Notwithstanding the foregoing provisions of this
Section 7, in the event Employee is terminated because of
Misconduct, the Company shall have no obligations pursuant to
this Agreement after the Date of Termination other than the
payment of any unpaid Base Compensation accrued through the
Date of Termination. As used herein, "Misconduct" means (a)
the continued failure by Employee to substantially perform his
duties with the Company (other than any such failure resulting
from Employee's incapacity due to physical or mental illness
or any such actual or anticipated failure after the issuance
of a Notice of Termination by Employee for Good Reason), after
a written demand for substantial performance is delivered to
Employee by the Board, which demand specifically identifies
the manner in which the Board believes that Employee has not
substantially performed his duties, (b) the engaging by
Employee in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise (other
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than such conduct resulting from Employee's incapacity due to
physical or mental illness or any such actual or anticipated
conduct after the issuance of a Notice of Termination by
Employee for Good Reason), or (c) Employee's conviction for
the commission of a felony. Anything contained in this
Agreement to the contrary notwithstanding, the Chief Executive
officer of the Company shall have the sole power and authority
to terminate the employment of Employee on behalf of the
Company.
(d) Disability. If Employee shall have been absent from
the full-time performance of Employee's duties with the Company for
ninety (90) consecutive calendar days as a result of Employee's
incapacity due to physical or mental illness, Employee's employment
may be terminated by the Company for "Disability" and Employee shall
not be entitled to further compensation pursuant to this Agreement,
except that Employee shall (1) be paid monthly (but only for up to a
twelve (12) month period beginning with the Date of Termination) the
amount by which Employee's monthly Base Compensation exceeds the
monthly benefit received by Employee pursuant to any disability
insurance covering Employee; (2) continue to receive paid group
health and dental insurance benefits for Employee and his dependents
for up to twelve (12) month period beginning with Date of
Termination; and
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(3) be considered as immediately and totally vested in any and all
options previously granted to Employee by Company or its
subsidiaries.
(e) Resignation for Good Reason. Employee shall be entitled
to terminate his employment for Good Reason as defined herein. If
Employee terminates his employment for Good Reason he shall be
entitled to the compensation and benefits provided in Paragraph 7
(c) (i) hereof. "Good Reason" shall mean the occurrence of any of
the following circumstances without Employee's express written
consent unless such breach or circumstances are fully corrected
prior to the Date of Termination specified in the Notice of
Termination given in respect hereof:
(1) the material breach of any of the Company's
obligations under this Agreement without Employee's express
written consent,
(2) the continued assignment to Employee of any duties
inconsistent with the office of Executive Vice President and
Chief Financial Officer;
(3) the failure by the Company to pay to Employee any
portion of Employee's compensation on the date such
compensation is due;
(4) the failure by the Company to continue to provide
Employee with benefits substantially similar to those enjoyed
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by other executive officers who have entered into similar
employment agreements with Employer under any of the Company's
medical, health, accident, and/or disability plans in which
Employee was participating immediately prior to such time; or
(5) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform
this Agreement, as contemplated in Section 13 hereof.
In addition, the occurrence of any Corporate Change (as
defined below), shall constitute "Good Reason" hereunder, but only if
Employee gives notice of his intent to terminate his employment within
ninety (90) days following the effective date of such Corporate Change.
A "Corporate Change" shall occur if (i) the Company shall not
be the surviving entity in any merger or consolidation (or survives
only as a subsidiary of another entity), (ii) the Company sells all or
substantially all of its assets to any other person or entity (other
than a wholly-owned subsidiary), (iii) the Company is to be dissolved
and liquidated, (iv) when any "person" as defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and as used in Sections 13 (d) and 14 (d) thereof, including a "group"
as defined in Section 13 (d) of the
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Exchange Act but excluding any 10% or larger shareholder of record of
the Company as of January 10, 2000, directly or indirectly, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act, as
amended from time to time), of securities of the Company representing
20% or more of the combined voting power of the Company's then
outstanding securities which are entitled to vote with respect to the
election of the directors of the Company; (v) James M. Bernhard ceases
to be Chairman of the Board of Directors and Chief Executive Officer.
However, in the event James M. Bernhard ceases to be Chairman of the
Board and Chief Executive Officer as a result of his death or
disability, Employee shall be required to give notice within 90 days as
set forth in this paragraph, but shall remain employed until the
earliest of 6 months after notice, or until the Board of Directors of
the Company notifies Employee that it has found a suitable successor,
or (vi) as a result of or in connection with a contested election the
members of the Board as of the date of this Agreement shall cease to
constitute a majority of the Board. "Contested" as used herein shall
not include election by a majority of the current Board.
(f) Notice of Termination. Any purported termination of
Employee's employment by the Company under Sections 7(c)(ii) or 7(d),
or by Employee under Section 7(e), shall be communicated by
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written Notice of Termination to the other party hereto in accordance
with Section 11 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which, if by the Company and is for
Misconduct or Disability, shall set forth in reasonable detail the
reason for such termination of Employee's employment, or in the case of
resignation by Employee for Good Reason, said notice must specify in
reasonable detail the basis for such resignation. A Notice of
Termination given by Employee pursuant to Section 7(e) shall be
effective even if given after the receipt by Employee of notice that
the Board has set a meeting to consider terminating Employee for
Misconduct. Any purported termination for which a Notice of Termination
is required which is not effected pursuant to this Section 7(f) shall
not be effective.
(g) Date of Termination, Etc. "Date of Termination" shall mean
the date specified in the Notice of Termination, provided that the Date
of Termination shall be at least 15 days following the date the Notice
of Termination is given. Notwithstanding the foregoing, in the event
Employee is terminated for Misconduct, the Company may refuse to allow
Employee access to the Company's offices (other than to allow Employee
to collect his personal belongings under the Company's supervision)
prior to the Date of Termination.
(h) Mitigation. Employee shall not be required to mitigate the
amount of any payment provided for in this Section 7 by
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by seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Agreement be reduced by any compensation
earned by Employee as a result of employment by another employer,
except that any severance amounts payable to Employee pursuant to the
Company's severance plan or policy for employees in general shall
reduce the amount otherwise payable pursuant to Sections 7(c)(i) or
7(e).
(i) Excess Parachute Payments. Notwithstanding anything in
this Agreement to the contrary, to the extent that any payment or
benefit received or to be received by Employee hereunder in connection
with the termination of Employee's employment would, as determined by
tax counsel selected by the Company, constitute an "Excess Parachute
Payment" (as defined in Section 280G of the Internal Revenue Code), the
Company shall fully "gross-up" such payment so that Employee is in the
same "net" after-tax position he would have been if such payment and
gross-up payments had not constituted Excess Parachute Payments.
8. Non-Compete.
8.1 No Other Activities. Employer agrees that during the term of this
Agreement, he shall not, directly or indirectly, represent or otherwise engage
in or participate in, the business or ventures of any person, firm, partnership,
association, or corporation other than the Company, without first obtaining the
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written consent of the Company. Employee further agrees that during the term of
this Agreement, he shall not, directly or indirectly, solicit or attempt to
solicit any products or agreements for the purpose of using the products or
agreements in the formation of a business outside of the Company, regardless of
whether any such products or the subject of such agreements are then being
handled by the Company.
8.2 Non-Disclosure. Employee further agrees that he will not, during or
after the term of his employment, disclose to any person, firm, partnership,
association, or corporation, the names and addresses of any past or present
customers, or prospective customers, of the Company, any of their methods or
practices of obtaining business, their trade secrets, consultant contracts and
the details thereof, their pricing policies, their operational methods, their
marketing plans or strategies, their business acquisition plans and all other
information pertaining to the business of the Company that is not publicly
available. Employee agrees to keep all information gained as a result of his
relationship with the Company on a confidential basis and shall not disclose
that information to anyone not authorized by the Company to receive information.
If Employee should cease, either voluntarily or involuntarily, to be an employee
of the Company he hereby expressly agrees that, for a period of two (2) years
following termination of his employment, he shall not assist any competitor or
prospective competitor located in the territories serviced by the Company (as
set forth in Attachment 1 or otherwise) during his employment in any way
detrimental to the Company through the use of any information
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gained as a result of his employment with the Company. Employee agrees that all
computer programs, print-outs, customer lists, methods, forms, systems and
procedures used by the Company constitute the exclusive property and will remain
the exclusive property of the Company and agrees that he will not disclose any
of these matters without the prior written permission of the Company.
8.3 Non-Solicitation, etc. In further consideration of the other terms
and provisions of this Agreement, and to protect the vital interests of the
Company, upon termination of his employment for any reason, for a period of two
(2) years after the termination of his employment, Employee agrees and binds
himself that he shall not, directly or indirectly, or as a member, shareholder,
officer, director, consultant or employee of any other person or entity, compete
with the Company or own, manage, operate, join, control or participate in the
ownership, management, operation, or control of, or become employed by, consult
or advise, or be connected in any manner with any business or activity which is
in actual, direct or indirect competition or anticipated competition with the
Company within those counties, parishes, municipalities or other places listed
in Attachment 1 annexed hereto and made a part hereof, so long as the Company
carries on the business presently conducted by the Company, being the supply of
industrial piping systems for new construction and retrofit projects, which
includes design and engineering services, piping system fabrication,
manufacturing and sale of specialty pipe fittings, design and fabrication of
pipe support systems and industrial and
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commercial construction and maintenance. Not by way of limitation or exclusion,
Employee shall not, within the aforesaid locations and during the aforesaid time
period, call upon, solicit, advise or otherwise do, or attempt to do, business
with any customers or distributors of the Company with whom the Company had any
dealings during the period of Employee's employment hereunder or take away or
interfere or attempt to interfere with any custom, trade, business or patronage
of the Company or interfere with or attempt to interfere with any officers,
employees, distributors, representatives or agents of the Company or employ or
induce or attempt to induce any of them to leave the employ of the Company or
violate the terms of their contracts, or any employment arrangements, with the
Company. Employee acknowledges and agrees that any breach of the foregoing
covenant not to compete would cause irreparable injury to the Company and that
the amount of injury would be impossible or difficult to fully ascertain.
Employee agrees that the Company shall, therefore, be entitled to obtain an
injunction restraining any violation, further violation or threatened violation
of the covenant not to compete hereinabove set forth, in addition to any other
remedies that the Company may pursue.
8.4 Duration. If the two (2) year period referred to in any of this
Article 8 shall be finally determined by a court to exceed the maximum period
which is permissible by applicable law, the said period shall be reduced to the
maximum period permitted by such law.
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9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Employee's continuing or future participation in any benefit, bonus,
incentive, or other plan or program provided by the Company or any of its
affiliated companies and for which Employee may qualify, nor shall anything
herein limit or otherwise adversely affect such rights as Employee may have
under any Options with the Company or any of its affiliated companies.
10. Assignability. The obligations of Employee hereunder are personal
and may not be assigned or delegated by him or transferred in any manner
whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder, either
in whole or in part, to any parent, affiliate, successor or subsidiary
organization or company of the Company, so long as the obligations of the
Company under this Agreement remain the obligations of the Company.
11. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
Company at its principal office address, directed to the attention of the Board
with a copy to the Secretary of the Company, and to Employee at Employee's
residence address on the records of the Company or to such other address as
either party may have furnished to the other in writing in accordance herewith
except that notice of change of address shall be effective only upon receipt.
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12. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Successors; Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the
Company 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.
Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Employee to compensation from the
Company in the same amount and on the same terms as he would be
entitled to hereunder if he terminated his employment for Good
Reason, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed
the Date of Termination. As used herein, the term "Company" shall
include any successor to its business and/or assets as aforesaid
which executes and delivers the Agreement provided for in this
Section 13 or which otherwise becomes bound by all terms and
provisions of this Agreement by operation of law.
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(b) This Agreement and all rights of Employee hereunder
shall inure to the benefit of and be enforceable by Employee's
personal or legal representatives, executors, administrators,
successors, heirs distributees, devisees and legatees. if Employee
should die while any amounts would be payable to him hereunder if he
had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement
to Employee's devisee, legatee, or other designee or, if there be no
such designee, to Employee's estate.
14. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement is an integration of the parties
agreement; no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party, except those which are set forth expressly in this Agreement. THE
VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA.
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15. Counterparts. This Agreement may be executed in one 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.
16. Arbitration. Either party may elect that any dispute or controversy
arising under or in connection with this Agreement be settled by arbitration in
Baton Rouge, Louisiana in accordance with the rules of the American Arbitration
Association then in effect. If the parties cannot mutually agree on an
arbitrator, then the arbitration shall be conducted by a three arbitrator panel,
with each party selecting one arbitrator and the two arbitrators so selected
selecting a third arbitrator. The findings of the arbitrator(s) shall be final
and binding, and judgment may be entered thereon in any court having
Jurisdiction. The findings of the arbitrator(s) shall not be subject to appeal
to any court, except as otherwise provided by applicable law. The arbitrator(s)
may, in his or her (or their) own discretion, award legal fees and costs to the
prevailing party.
IN WITNESS WHEREOF, the parties have executed this Agreement on May 1,
2000, effective for all purposes as provided above.
THE SHAW GROUP INC.
By
Name: /s/ Gary P. Graphia
-------------------------
EMPLOYEE:
Name: /s/ Robert L. Belk
-------------------------------
Robert L. Belk
Executive Vice President and
Chief Financial Officer
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