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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q/A
Amendment No. 1
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________________
Commission File Number: 0-29292
- --------------------------------------------------------------------------------
HAGLER BAILLY, INC.
(Exact name of registrant as specified in its charter)
- --------------------------------------------------------------------------------
Delaware 54-1759180
(State or other jurisdiction of incorporation I.R.S. Employer Identification
or organization) Number
1530 Wilson Boulevard, Suite 400, Arlington, VA 22209 (Address
of principal executive offices) (Zip Code)
703-351-0300
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or such shorter period that the registrant was required
to file such reports) and (2) has been subject to such filing requirements for
the past 90 days. |X| Yes |_| No
As of April 27, 2000, the Registrant had 17,927,812 shares of its common stock
outstanding.
NOTE
THIS AMENDMENT NO. 1 AMENDS AND RESTATES IN ITS ENTIRETY
THE COMPANY'S FORM 10-Q QUARTERLY REPORT
FOR THE QUARTERLY PERIOD ENDING MARCH 31, 2000
INITIALLY FILED ON MAY 15, 2000
TABLE OF CONTENTS
PART I
ITEM 1. FINANCIAL STATEMENTS........................................1
Consolidated Balance Sheets (UNAUDITED)......................1
Consolidated Statements of Operations (UNAUDITED)............2
Consolidated Statements of Cash Flows (UNAUDITED)............3
Notes to Consolidated Financial Statements...................4
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF
OPERATIONS..................................................7
PART II
ITEM 1. LEGAL PROCEEDINGS...........................................11
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K............................11
SIGNATURES...........................................................18
PART I
ITEM 1. FINANCIAL STATEMENTS
Hagler Bailly, Inc.
Consolidated Balance Sheets
(in thousands)
March 31, December 31,
2000 1999
-----------------------
(unaudited)
Assets
Current assets:
Cash and cash equivalents $ 7,918 $ 9,656
Accounts receivable, net of allowance for doubtful
accounts of $5,503 and $5,604 as of March 31,
2000 and December 31, 1999, respectively 58,949 63,034
Current portion of notes receivable 23 80
Prepaid expenses 2,642 2,173
Prepaid taxes 1,552 5,915
Deferred income taxes 1,701 1,701
Other current assets 1,249 960
----------------------
Total current assets 74,034 83,519
Property and equipment, net 8,252 8,271
Intangible assets, net 22,059 22,449
Other assets 843 1,475
Note receivable, net of current portion 495 495
----------------------
Total assets $ 105,683 $ 116,209
======================
Liabilities and stockholders' equity
Current liabilities:
Accounts payable and accrued expenses $ 9,584 $ 13,948
Accrued compensation and benefits 12,787 19,072
Billings in excess of cost 5,174 5,812
Current portion of long-term debt 333 333
----------------------
Total current liabilities 27,878 39,165
Deferred income taxes 2,383 2,383
Minority interest 9 8
Deferred rent and other deferred liabilities 2,056 2,028
Long-term debt, net of current portion 333 333
----------------------
Total liabilities 32,659 43,917
Stockholders' equity:
Common stock, $0.01 par value, 50,000 shares authorized,
17,911 and 17,911 issued and outstanding at March 31, 2000 and
December 31, 1999, respectively 179 179
Additional capital 80,996 80,996
Accumulated deficit (8,000) (8,718)
Foreign currency translation (accumulated other
comprehensive income) (151) (165)
----------------------
Total stockholders' equity 73,024 72,292
----------------------
Total liabilities and stockholders' equity $ 105,683 $ 116,209
======================
See accompanying notes.
1
Hagler Bailly, Inc.
Consolidated Statements of Operations
(Unaudited)
(in thousands, except per share data)
Three months ended
March 31,
2000 1999
-------- --------
Revenues
Commercial revenues $ 30,196 $ 29,857
Government revenues 11,375 9,830
Other revenues 347 543
-------- --------
Total revenues 41,918 40,230
Cost of services 32,577 30,623
-------- --------
Gross profit 9,341 9,607
Selling, general and administrative expenses 7,847 7,583
--------------------
Income from operations 1,494 2,024
Other (expense) income, net (13) 87
-------- --------
Income before income tax expense and income/(loss) from 1,481 2,111
equity investment in joint venture
Income tax expense 810 786
-------- --------
Income before income/(loss) from equity investment in joint 671 1,325
venture
Income/(loss) from equity investment in joint venture 47 (143)
-------- --------
Net income $ 718 $ 1,182
======== ========
Net income per share:
Basic $ 0.04 $ 0.07
Diluted $ 0.04 $ 0.07
Weighted average shares outstanding:
Basic 17,911 16,552
======== ========
Diluted 17,913 17,171
======== ========
See accompanying notes.
2
Hagler Bailly, Inc.
Consolidated Statements of Cash Flows
(Unaudited)
(in thousands)
Three months ended
March 31,
2000 1999
------- --------
Operating activities
Net income $ 718 $ 1,182
Adjustments to reconcile net income to net cash used in
Operating activities:
Depreciation and amortization expense 1,222 1,317
Provision for accounts receivable allowance (96) 313
(Gain)/loss on equity investment in joint venture (47) 143
Minority interest 1 46
Changes in operating assets and liabilities
Accounts receivable 4,181 (1,090)
Note receivable 57 382
Prepaid expenses (469) (1,361)
Other current assets (289) (88)
Other assets 703 (89)
Accounts payable and accrued expenses (4,364) 389
Accrued compensation and benefits (6,285) (409)
Billings in excess of cost (638) (256)
Deferred rent and other deferred liabilities 28 21
Income taxes payable (receivable) 4,363 (1,753)
------- --------
Net cash used in operating activities (915) (1,253)
Investing activities
Acquisition of property and equipment (823) (444)
------- --------
Net cash used in investing activities (823) (444)
Financing activities
Issuance of common stock -- 106
Purchase of treasury stock -- (2,217)
Payments on long-term debt -- (23)
------- --------
Net cash used in financing activities -- (2,134)
Net decrease in cash and cash equivalents (1,738) (3,831)
Cash and cash equivalents, beginning of period 9,656 16,165
------- --------
Cash and cash equivalents, end of period $ 7,918 $ 12,334
======= ========
See accompanying notes.
3
HAGLER BAILLY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Basis of Presentation
The accompanying unaudited interim consolidated financial statements of
Hagler Bailly, Inc. (the "Company") have been prepared pursuant to the rules of
the Securities and Exchange Commission ("SEC") for quarterly reports on Form
10-Q and do not include all of the information and note disclosures required by
generally accepted accounting principles. The information furnished herein
reflects all adjustments, of a normal recurring nature, which are, in the
opinion of management, necessary for a fair presentation of results for these
interim periods.
The interim results of operations are not necessarily indicative of the
results to be expected for the entire fiscal year ending December 31, 2000.
Note 2. Earnings per Share
Basic earnings per share is computed based on the weighted average number
of shares of common stock outstanding during the respective periods. Diluted
earnings per share is inclusive of the dilutive effect of unexercised stock
options using the treasury stock method.
For the three months ended
March 31,
(in thousands)
2000 1999
------- -------
Net income $ 718 $ 1,182
======= =======
Weighted average shares of common stock
outstanding during the period 17,911 16,552
Effect of dilutive securities:
Stock options 2 619
------- -------
Weighted average shares of common stock
and dilutive securities 17,913 17,171
======= =======
4
Note 3. Stock Repurchase Plan
On March 22, 1999 the Company announced that its Board of Directors
authorized the repurchase of up to 1.5 million shares of the Company's common
stock from time to time in the open market or in privately negotiated
transactions. To date the Company has repurchased 559,700 shares. The Company
did not repurchase any shares during the quarter ended March 31, 2000.
Note 4. Components of Comprehensive Income
Comprehensive income includes the Company's net earnings adjusted for
changes, net of tax, of cumulative translation adjustments. Comprehensive income
for the three months ended March 31, 2000 and 1999 is as follows:
Three Months Ended
March 31,
(in thousands)
2000 1999
------- -------
Comprehensive income:
Net income $ 718 $ 1,182
Foreign translation adjustment, net 8 (29)
------- -------
Total comprehensive income: $ 726 $ 1,153
======= =======
Note 5. Employee Incentive and Non-Qualified Stock Option and Restricted Stock
Plan
On February 2, 2000, the Board approved an amendment to the Employee
Incentive and Non-Qualified Stock Option and Restricted Stock Plan (the "Plan"),
subject to shareholder approval, to increase the number of shares of common
stock authorized to be issued under the Plan from five million to eight million.
Note 6. Segment Information
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131 Disclosures about Segments of an
Enterprise and Related Information ("FAS 131"). FAS 131 supercedes FAS 14
Financial Reporting for Segments of a Business Enterprise, replacing the
industry segment approach with the management approach, which requires
segmentation based upon the Company's internal organizational structure that is
used by management for making operating decisions and assessing performance as
the source of the Company's reportable segments.
5
The Company began organizing, reporting and managing its business as two
segments in 1999. Accordingly, the Company adopted FAS 131 in 1999 and all prior
periods have been presented to conform to the requirements of this statement.
The segments, which are based on differences in the Company's client base, are
Commercial Consulting and Government Consulting. Commercial Consulting consists
primarily of providing strategic advice and analysis to businesses in developed
countries on issues such as energy, transportation, telecommunications, the
environment, litigation and other matters. Government Consulting consists
primarily of providing advisory and technical services to government sector
clients worldwide in the energy and network industries (mainly in water and
transportation) and the environment.
The Company has subsidiaries in 11 countries outside North America which,
in aggregate, represent 11.0% of consolidated revenues. There is no single
foreign country that exceeds 10.0% of consolidated revenues. Revenues based on
work performed for the United States Agency for International Development
(USAID) represent 67.9% of the Government Consulting segment's consolidated
revenues and 18.4% of the Company's consolidated revenues. The loss of this
client could have a material adverse effect on the Company's business, financial
condition and results of operations.
6
The following table presents revenue and income (loss) from operations
data by segment:
For the three months ended,
(in thousands)
- --------------------------------------------------------
March 31, March 31,
Segment Information 2000 1999
- --------------------------------------------------------
Revenues
Commercial consulting $ 30,196 $ 29,857
Government consulting 11,375 9,830
Other 347 543
-------- --------
Total $ 41,918 $ 40,230
======== ========
Income (loss) from operations
Commercial consulting $ 1,855 $ 2,438
Government consulting (117) (322)
-------- --------
Segment Total 1,738 2,116
Other (244) (92)
-------- --------
Total $ 1,494 $ 2,024
======== ========
Note 7. Subsequent Events
On May 3, 2000, the Company entered into an Employment Separation
Agreement and General Release ("the Agreement") with William E. Dickenson, who
held the position of president and chief executive officer. Mr. Dickenson was
also a member of the Company's Board of Directors. Pursuant to the Agreement,
the Company paid Mr. Dickenson a lump-sum amount of $2.376 million on May 11,
2000. In addition, the Board of Directors of the Company elected Geoffrey W.
Bobsin to serve as interim president and chief executive officer. The Company is
undertaking a search for a permanent successor. Mr. Bobsin will continue to
serve as the Company's chief financial officer.
The Company has employment agreements with Henri-Claude A. Bailly,
Chairman of the Board of Directors, and Howard W. Pifer III, a member of the
Board of Directors and Chairman of the Board of Directors of the Company's
wholly owned subsidiary PHB Hagler Bailly, Inc. Pursuant to the agreements, each
has the right to
7
terminate their respective agreement upon the occurrence of a change in control.
Mr. Dickenson's resignation constitutes a change in control as defined in the
agreements. Should these two executives exercise their rights under their
agreements, the Company will be obligated to pay Mr. Bailly and Mr. Pifer an
aggregate amount of up to $5.7 million.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
Statements included in Management's Discussion and Analysis of Financial
Condition and Results of Operations which are not historical in nature, are
intended to be, and are hereby identified as, "forward-looking statements" for
purposes of the safe harbor provided by Section 21E of the Securities Exchange
Act of 1934, as amended by Public Law 104-67. Forward-looking statements may be
identified by words including "anticipate," "believe," "estimate," "expect" and
similar expressions. The Company cautions readers that forward-looking
statements, including without limitation, those relating to the Company's future
business prospects, revenues, working capital, liquidity, and income, are
subject to certain risks and uncertainties that would cause actual results to
differ materially from those indicated in the forward-looking statements, due to
several important factors, such as concentration of the Company's revenues from
a relatively limited number of public and private clients involved in the energy
and network industries; the Company's ability to attract, retain and manage
professional and administrative staff; fluctuations in quarterly results; risks
related to acquisitions; and the fact that historical operations and performance
are not necessarily indicative of future operations and performance, among
others; and other risks and factors identified from time to time in the
Company's reports filed with the SEC, including the risk factors identified in
the Company's Registration Statement (No. 333-22207) on Form S-1 and the
Company's Annual Report on Form 10-K for the year ended December 31, 1999.
The Company, together with its wholly owned subsidiaries, PHB Hagler
Bailly, Inc., Hagler Bailly Services, Inc., and its other domestic and foreign
wholly owned subsidiaries, is a leading worldwide provider of strategy,
economics and operations consulting services to clients in the energy and
network industries, including electric power, natural gas and water utilities,
fuel providers, aviation transportation, telecommunications, commercial
litigation and the environment. As of March 31, 2000, the Company employed a
staff of 710, of which over two-thirds were consulting and technical
professionals. The Company's common stock is quoted on the NASDAQ National
Market under the symbol, "HBIX".
The Company's revenues consist of commercial consulting revenues,
government consulting revenues and other revenues. Commercial consulting
revenues represent revenues billed at commercial rates for professional staff,
8
subcontractors and independent consultants, and client reimbursable expenses.
Commercial revenues are associated with the Company's primary business of
providing strategic advice and analysis to businesses in developed countries on
issues involving energy, transportation, telecommunications, commercial
litigation, the environment and other matters. Government consulting revenues
represent revenues billed at government rates for professional staff,
subcontractors and independent consultants, and client reimbursable expenses.
Government revenues are associated with providing advisory and technical
services to government sector clients worldwide in the energy and network
industries, particularly in water and transportation, and the environment. Other
revenues include those derived from information-based products and services,
financial advisory services, and publication of newsletters, reference manuals,
and data series for the energy and transportation industries services. Revenue
from commercial consulting is typically characterized by higher gross margins
than government consulting, yet generally requires a higher relative level of
infrastructure support. Consequently, the Company's operating performance is
affected by its commercial consulting / government consulting business mix.
Through strategic acquisitions and internal growth, the Company has increased
its commercial consulting client base, and will continue to pursue such
opportunities in the future.
On September 27, 1999, the Company announced that its Board of Directors
retained Banc of America Securities LLC to assist the Company in exploring
strategic and financial alternatives to maximize shareholder value, including
the potential sale or merger of the Company.
The payment of $2.376 million to Mr. Dickenson and the possible payment of
up to $5.7 million to Messrs. Bailly and Pifer if they exercise their rights
under their employment agreements (See Note 7 to the Consolidated Financial
Statements) will be charged to earnings during the current fiscal year.
9
Results of Operations
The following table presents for the periods indicated the percentage of
revenues represented by certain income and expense items, and the percentage
period-to-period increase (decrease) in such items:
% Period-to
-Period
Percentage of Increase
Revenues (Decrease)
-------------------- ----------------------
Three months
ended March
Three months 31, 2000
ended compared to
March 31, three months
ended March
31, 1999
-------------------- ----------------------
2000 1999
------ ------
Revenues:
Commercial revenue 72.0% 74.2% 1.1%
Government revenue 27.1 24.4 15.7
Other revenue 0.8 1.4 (36.4)
Total revenues 100.0 100.0 4.2
Cost of services 77.7 76.1 6.4
Selling, general, and administrative
expenses 18.7 18.8 3.5
Income from operations 3.6 5.1 (26.2)
Other (expenses) income, net (0.1) 0.2 (114.6)
Income before income tax expense and
income (loss) from equity investment
in joint venture 3.5 5.3 (29.8)
Income tax expense 1.9 2.0 3.1
Net income before income (loss) from
equity investment in joint venture 1.6 3.3 (49.4)
Income (loss) from joint venture 0.1 (0.4) (132.9)
Net income 1.7 2.9 (39.3)
10
Three months ended March 31, 2000, compared with three months ended March 31,
1999
Revenues for the three months ended March 31, 2000 increased $1.7 million,
or 4.2%, to $41.9 million as compared to the three months ended March 31, 1999.
Revenues from the Company's commercial consulting operating segment increased
$0.3 million, or 1.1%, to $30.2 million for the three months ended March 31,
2000. The increase in commercial consulting revenues was attributable to
approximately $5.5 million of revenues of acquired companies, primarily GKMG,
Inc. and an increased ownership in Hagler Bailly Risk Advisors, Inc. which were
not included in the quarter ended March 31, 1999. This increase was offset by a
decrease of $1.2 million in revenues due to the divestiture of the Company's
wholly owned subsidiary Izsak, Grapin et Associes, a decrease of approximately
$0.8 million from the Company's other international operations and a decrease of
approximately $3.2 million primarily due to a reduction in staff and the number
of overall contracts in the Company's commercial energy sector. Revenues from
the Company's government consulting operating segment increased $1.5 million, or
15.7%, to $11.4 million for the three months ended March 31, 2000. This increase
was primarily attributable to $1.4 million of pass-thru equipment sales.
Pass-thru equipment sales pertain to equipment sold by the Company to clients at
a nominal mark-up.
Cost of services for the three months ended March 31, 2000 increased $2.0
million, or 6.4%, to $32.6 million as compared to the three months ended March
31, 1999. This increase was a result of acquired companies which were not
included in the March 31, 1999 results, costs associated with pass-thru
equipment sales of $1.4 million and retention bonuses paid to key consulting
employees as a part of the repositioning plan of $0.5 million, and was partially
offset by reduced costs resulting from divestitures.
Selling, general and administrative expenses ("SG&A") for the three months
ended March 31, 2000 increased $0.3 million, or 3.5%, to $7.8 million from the
three months ended March 31, 1999, primarily due to costs associated with the
Company's recent acquisitions.
Income from operations for the Company for the three months ended March
31, 2000 decreased $0.5 million, or 26.1%, to $1.5 million as compared to the
three months ended March 31, 1999. The decrease in income from operations is
attributable to the reasons discussed above. Income from operations from the
commercial consulting operating segment decreased $0.6 million, or 23.9%, to
$1.9 million for the three months ended March 31, 2000. The loss from operations
from the government consulting operating segment decreased $0.2 million, or
63.7%, to $0.1 million for the three months ended March 31, 2000.
Other (expense) income, net includes interest income, interest expense,
minority interest and other income and expense items. For the three months ended
11
March 31, 2000, other (expense) income, net decreased approximately $100,000, to
an expense of approximately $13,000 from income of $87,000 for the three months
ended March 31, 1999, primarily due to increased interest expense and decreased
interest income as a result of lower cash and investment balances.
The Company's effective tax rate increased to 54.7% for the three months
ended March 31, 2000 from 37.2% in the three months ended March 31, 1999. The
higher effective income tax rate in the three months ended March 31, 2000 is due
to non-deductible non-U.S. losses, and the amortization of goodwill arising from
recent acquisitions.
Net income for the three months ended March 31, 2000 decreased
approximately $464,000, or 39.3%, to approximately $718,000 from the three
months ended March 31, 1999, for the reasons discussed above.
Liquidity and Capital Resources
As of March 31, 2000, working capital increased to $46.2 million from
$44.4 million at December 31, 1999 because of lower accounts payable, accrued
expenses and the payment of bonuses.
Net cash of approximately $0.9 million was used by operating activities
during the three months ended March 31, 2000. The primary uses of cash from
operating activities were the reduction of accounts payable and the payment of
bonuses. This was offset by cash provided by a reduction in both accounts
receivable and prepaid income taxes.
Investment activities used approximately $0.8 million during the three
months ending March 31, 2000, due to the purchase of property and equipment.
There were no financing activities for the three months ended March 31,
2000.
The Company's primary source of liquidity for the past 12 months was cash
generated from operations, periodically supplemented by borrowings under a
revolving credit facility with Bank of America, N.A. (formerly NationsBank,
N.A.) The maximum available balance under the $50.0 million line of credit is
based on certain financial formulas. Based on these formulas the available
balance at March 31, 2000 was $11.3 million. The Company was in non-compliance
with certain covenants that were subsequently waived by Bank of America for the
quarter ended March 31, 2000. The Company is currently re-negotiating the terms
of the credit facility to reflect current business strategies. Based on the
Company's current projected cash flow and the expected availability of
financing, including borrowings under the Company's credit facility, management
of the Company believes it will be able to meet its anticipated cash
requirements for the next 12 months and for the foreseeable future, to include
the payment of $2.376 million to Mr. Dickenson in the second quarter of
12
2000 and the possible payment of up to $5.7 million to Messrs. Bailly and Pifer
in 2000 if they exercise their rights under their employment agreements. If the
Company is unable to renegotiate its credit facility, it will be required to
obtain other sources of financing. There can be no assurance that the Company
will be able to renegotiate its credit facility or that it will be able to
obtain such other sources of financing. Failure to renegotiate its credit
facility or to meet its liquidity needs through other financing sources could
have a material adverse effect on the Company's business, results of operations
and financial condition.
Year 2000
The company experienced no significant system or application problems
resulting from the Year 2000 roll-over or from the Year 2000 "leap year" on
February 29, 2000. The Company will continue to maintain Year 2000 contingency
plans with regard to its computer programs and systems and those of its clients,
suppliers and vendors.
PART II
ITEM 1. LEGAL PROCEEDINGS
The Company and its subsidiaries are from time to time parties to
litigation arising in the ordinary course of business. Neither the Company nor
any of its subsidiaries is a party to any pending material litigation nor are
any of them aware of any pending or threatened litigation that would have a
material adverse effect on the Company or its business.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
Exhibit No. Description
- ----------- -----------
2.1 Sale Agreement between RCG International, Inc., and Hagler Bailly
Consulting, Inc. (1)
2.2 Agreement and Plan of Merger by and among Hagler Bailly, Inc., PHB
Acquisition Corp. and Putnam, Hayes and Bartlett, Inc., dated as of June
11, 1998. (5)
2.3 Share Exchange Agreement dated as of August 12, 1999 by and among Hagler
Bailly, Inc., GKMG, Inc. and certain former shareholders of GKMG, Inc.
(11)
3.1 By-Laws of the Company, as amended. (6)
3.2 Amended Restated Certificate of Incorporation of the Company. (7)
13
4 Specimen Stock Certificates. (1)
4.1 Registration Rights Agreement dated November 18, 1997 by and between
Hagler Bailly, Inc. and Richard R. Mudge, acting as Stockholders'
Representative. (3)
4.2 Form of Escrow Agreement by and among the Company, PHB Acquisition Corp.,
William E. Dickenson as Stockholders' Representative and State Street Bank
and Trust Company, as Escrow Agent. (5)
4.3 Registration Rights Agreement dated February 23, 1998 by and between
Hagler Bailly, Inc. and Michael J. Beck, acting as Stockholders'
Representative. (9)
4.4 Registration Rights Agreement dated November 17, 1998 by and between
Hagler Bailly, Inc. and the stockholders of Fieldston Publications, Inc.
and The Fieldston Company. (9)
4.5 Registration Rights Agreement dated as of August 12, 1999 by and between
Hagler Bailly, Inc. and James F. Miller, acting as Stockholders'
Representative. (11)
10.2 Form of Non-Compete, Confidentiality and Registration Rights Agreement
between the Company and each stockholder. (1)
10.3 Lease by and between Wilson Boulevard Venture and RCG/Hagler Bailly, Inc.
dated October 25, 1991. (1)
10.4 First Amendment to Lease by and between Wilson Boulevard Venture and
RCG/Hagler Bailly, Inc., dated February 26, 1993. (1)
10.5 Second Amendment to Lease by and between Wilson Boulevard Venture and
RCG/Hagler Bailly, Inc. dated December 12, 1994. (1)
10.6 Lease by and between Bresta Futura V.B.V. and Hagler Bailly Consulting,
Inc. dated May 8, 1996. (1)
10.7 Lease by and between L.C. Fulenwider, Inc., and RCG/Hagler Bailly, Inc.
dated December 14, 1994. (1)
10.8 Lease by and between University of Research Park Facilities Corp. and
RCG/Hagler Bailly, Inc., dated April 1, 1995. (1)
10.9 Credit Agreement by and between Hagler Bailly Consulting, Inc. and State
Street Bank and Trust Company, dated May 17, 1995. (1)
10.10 Amendment to Credit Agreement by and between Hagler Bailly Consulting,
Inc. and State Street Bank and Trust Company, dated as of June 20,1996.
(1)
10.11 Extension Agreement by and between Hagler Bailly Consulting, Inc. and
State Street Bank and Trust Company, dated as of August 1, 1996. (1)
14
10.12 Amendment to Credit Agreement by and between Hagler Bailly Consulting,
Inc. and State Street Bank and Trust Company, dated as of November 12,
1996. (1)
10.13 Term Note by and between Hagler Bailly Consulting, Inc., and State Street
Bank and Trust Company, dated May 26, 1995. (1)
10.14 Revolving Credit Note by and between Hagler Bailly Consulting, Inc. and
State Street Bank and Trust Company dated May 26, 1995. (1)
10.15 Amendment to Credit Agreement by and between Hagler Bailly Consulting,
Inc., and State Street Bank and Trust Company, dated as of June 12, 1997.
(1)
10.16 Credit Agreement by and among Hagler Bailly Consulting, Inc., Hagler
Bailly Services, Inc. and State Street Bank and Trust Company, dated as of
September 30, 1997. (2)
10.17 Promissory Note by Hagler Bailly Consulting, Inc. and Hagler Bailly
Services, Inc. to State Street Bank and Trust Company, dated September 30,
1997. (2)
10.18 Security Agreement by and between Hagler Bailly Consulting, Inc. and State
Street Bank and Trust Company, dated as of September 30, 1997. (2)
10.19 Security Agreement by and between Hagler Bailly Services, Inc. and State
Street Bank and Trust Company, dated as of September 30, 1997. (2)
10.20 Guaranties by Hagler Bailly, Inc. to State Street Bank and Trust Company,
dated September 30, 1997. (2)
10.21 Guaranties by HB Capital, Inc. to State Street Bank and Trust Company,
dated September 30, 1997. (2)
10.22 Subordination Agreement and Negative Pledge/Sale Agreement by and between
Hagler Bailly, Inc. and State Street Bank and Trust Company for Hagler
Bailly Consulting, Inc., dated September 30, 1997. (2)
10.23 Subordination Agreement and Negative Pledge/Sale Agreement by and between
Hagler Bailly, Inc. and State Street Bank and Trust Company for Hagler
Bailly Services, Inc., dated September 30, 1997. (2)
10.24 Guaranty of Monetary Obligations to Bresta Futura V.B.V. by Hagler Bailly,
Inc., dated July 23, 1997. (2)
10.25 Amendment to Credit Agreement by and between Hagler Bailly Consulting,
Inc. and State Street Bank and Trust Company dated May 18, 1998. (6)
10.26 Sublease Agreement by and between Coopers and Lybrand L.L.P. and Hagler
Bailly, Inc. dated December 5, 1997. (6)
15
10.27 Employment Agreement between the Company and Henri-Claude A. Bailly, dated
August 27, 1998. (7)
10.28 Employment Agreement between the Company and William E. Dickenson, dated
August 27, 1998. (7)
10.29 Employment Agreement between the Company and Howard W. Pifer III, dated
June 10, 1998. (7)
10.30 Amended and Restated Hagler Bailly, Inc. Employee Incentive and
Non-Qualified Stock Option and Restricted Stock Plan. (10)
10.31 Credit Agreement by and between Hagler Bailly, Inc. and The Lenders From
Time to Time a Party thereto, as Lenders and NationsBank, N.A., dated
November 20, 1998. (8)
10.32 Revolving Note by and between Hagler Bailly, Inc. and NationsBank, N.A.,
dated November 20, 1998. (8)
10.33 Swing Line Note by and between Hagler Bailly, Inc. and NationsBank, N.A.,
dated November 20, 1998. (8)
10.34 Subsidiary Guarantee by and among Hagler Bailly Services, Inc., Hagler
Bailly Consulting, Inc., HB Capital, Inc., Putnam, Hayes & Bartlett, Inc.,
TB&A Group, Inc., Theodore Barry & Associates, Private Label Energy
Services, Inc., Fieldston Publications, Inc. and NationsBank, N.A., dated
November 20, 1998. (8)
10.35 Form of Security Agreement by and between Hagler Bailly, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.36 Security Agreement by and between Hagler Bailly Consulting, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.37 Security Agreement by and between Hagler Bailly Services, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.38 Security Agreement by and between HB Capital, Inc. and Nations Bank, N.A.,
dated November 20, 1998. (8)
10.39 Security Agreement by and between Putnam, Hayes & Bartlett, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.40 Security Agreement by and between TB&A Group, Inc. and Nations Bank, N.A.,
dated November 20, 1998. (8)
10.41 Security Agreement by and between Theodore Barry & Associates and
NationsBank, N.A., dated November 20, 1998. (8)
16
10.42 Security Agreement by and between PHB Hagler Bailly, Inc. and NationsBank,
N.A., dated February 22, 1999. (8)
10.43 Security Agreement by and between Private Label Energy Services, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.44 Security Agreement by between Fieldston Publications, Inc. and
NationsBank, N.A., dated November 20, 1998. (8)
10.45 Lease by and between One Memorial Drive Limited Partnership and Putnam,
Hayes & Bartlett, Inc. dated January 1, 1998. (8)
10.46 Lease by and between George H. Beuchert, Jr., Trustee, Thomas J. Egan,
Trustee, Oliver T. Carr, Jr., Trustee, William Joseph H. Smith, Trustee,
and the Kiplinger Washington Editors, Inc., Trustee, acting collectively
as trustee on behalf of the beneficial owner, The Greystone Square 127
Associates, and Putnam, Hayes & Bartlett, Inc. dated March 31, 1997. (8)
10.47 First Amendment to Lease by and between Greystone Square 127 Limited
Liability Company, as successor in interest collectively to The Greystone
Square 127 Associates, and George H. Beuchert, Jr., Trustee, and The
Kiplinger Washington Editors, Inc., Trustee, the owners of record who held
legal title to the Building as trustees on behalf of the Greystone Square
127 Associates, the former beneficial owners of the Building, and Putnam,
Hayes & Bartlett, Inc. dated February 10, 1998. (8)
10.48 Employment agreement between Hagler Bailly Consulting, Inc. and Jasjeet S.
Cheema dated February 2, 1998. (9)
10.49 First amendment to revolving credit agreement between Hagler Bailly, Inc,
the lenders from time to time a party thereto, as lenders, and
NationsBank, N.A., dated as of March 22, 1999. (9)
10.50 Lease by and between TrizecHahn, 1550 Wilson Blvd. Management and Hagler
Bailly Services, Inc. dated August 29, 1999. (12)
10.51 Second amendment to revolving credit agreement between Hagler Bailly,
Inc., the lenders from time to time a party thereto, as lenders, and
NationsBank, N.A., dated as of August 11, 1999. (12)
10.52 Security Agreement by and between GKMG, Inc. and NationsBank, N.A., dated
August 11, 1999. (12)
10.53 Security Agreement by and between GKMG Consulting Services, Inc. and
NationsBank, N.A., dated August 11, 1999. (12)
10.54 Employment Agreement between Putnam, Hayes & Bartlett, Inc. and John C.
Butler, dated August 28, 1999. (13)
17
10.55 Employment Agreement between Putnam, Hayes & Bartlett, Inc. and William H.
Hieronymus, dated August 28, 1999. (13)
10.56 Employment Agreement between Putnam, Hayes & Bartlett, Inc. and Walter H.
A. Vandaele, dated August 28, 1999. (13)
10.57 Employment Separation Agreement and General Release between Hagler Bailly,
Inc. and William E. Dickenson, dated as of May 3, 2000.
21 Subsidiaries of the Registrant. (13)
22 Consent of Independent Auditors dated March 29, 2000. (13)
22 Powers of Attorney (included on Signature Pages). (1)
27.1 Financial Data Schedule (13)
- --------------------------------------
(1) Included in the Company's Registration Statement on Form S-1 filed on July
1, 1997 (No. 33-22207) and incorporated herein by reference thereto.
(2) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, filed on November 14, 1997 and incorporated
herein by reference thereto.
(3) Included in the Company's Current Report on Form 8-K filed on December 16,
1997 and incorporated herein by reference thereto.
(4) Included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, filed on March 31, 1998 and incorporated herein by
reference thereto.
(5) Included in the Company's Proxy Statement for Special Meeting of
Stockholders dated July 24, 1998 on Form DEFS 14A and incorporated herein
by reference thereto.
(6) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998, filed on August 14, 1998 and incorporated herein by
reference thereto.
(7) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, filed on November 13, 1998 and incorporated
herein by reference thereto.
(8) Included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, filed on March 31, 1998 and incorporated herein by
reference thereto.
(9) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, and incorporated herein by reference thereto.
(10) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, and incorporated herein by reference thereto.
18
(11) Included in the Company's Current Report on Form 8-K filed on August 26,
1999 and incorporated herein by reference thereto.
(12) Included in the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999 and incorporated herein by reference thereto.
(13) Included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1999, filed March 27, 2000 and incorporated herein by
reference thereto.
(b) REPORTS ON FORM 8-K
Hagler Bailly, Inc. did not file any Reports on Form 8-K during the
quarter ended March 31, 2000.
19
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
/s/ Geoffrey W. Bobsin
Date: September 21, 2000 ---------------------------------------------
Geoffrey W. Bobsin
President, Chief Executive Officer, Chief
Financial Officer, Treasurer and Secretary
---------------------------------------------
20
EXHIBIT 10.57
EMPLOYMENT SEPARATION AGREEMENT
AND GENERAL RELEASE
This Employment Separation Agreement and General Release (the
"Agreement") is being entered as of May 3, 2000, by and between Hagler Bailly,
Inc. ("Hagler Bailly" or the "Company") and William E. Dickenson ("Mr.
Dickenson"), effective as of the date this Agreement is fully executed. For and
in consideration of the mutual promises contained herein, and for other good and
sufficient consideration, receipt of which is hereby acknowledged, Hagler Bailly
and Mr. Dickenson (sometimes hereafter referred to as the "parties") agree as
follows:
1. Termination and Payment.
(a) Mr. Dickenson will perform his regular duties with Hagler Bailly
through May 11, 2000 ("the Resignation Date"), on which date he will step down
and resign all of the offices and positions he then holds with Hagler Bailly and
any of its affiliates, including without limitation the position of President
and Chief Executive Officer of Hagler Bailly and his position as a member of the
Board of Directors of Hagler Bailly (the "Board"). Mr. Dickenson agrees to
execute and deliver to the Company such documents concerning such resignations
as may be reasonably requested by the Company. Mr. Dickenson agrees that he
shall have no further right to employment with the Company after the Resignation
Date.
(b) On or before May 11, 2000, Hagler Bailly shall pay to Mr.
Dickenson by direct deposit (i) a lump-sum payment of $850,000, (ii) a lump-sum
payment of $1,526,304, which is an amount equal to four (4) times his Base
Salary as of May 11, 2000 and (iii) all accrued and unpaid Base Salary and
accrued leave, if any, through the Resignation Date. The payments hereunder
shall be reduced by the Company to account for standard income tax withholdings.
At Mr. Dickenson's written request, the Company shall promptly remove the
restrictive legends on Mr. Dickenson's stock certificates (or issue certificates
without restrictive legends) as permitted by law.
(c) The Company shall offer Mr. Dickenson, within the applicable
deadline under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), the opportunity to elect continued group health insurance coverage in
accordance with the terms of COBRA.
(d) Mr. Dickenson agrees that once all of the payments and actions
referred to in paragraph 1(b) of this Agreement have been made he shall have
been paid all compensation due and owing to him under this Agreement and any
employment contract he has or may have had with the Company (including but not
limited to the Employment Agreement dated August 27, 1998 between Hagler Bailly
and Mr. Dickenson (the "Employment Agreement")) or from any other source of
entitlement, including all wages, salary, commissions, bonuses, incentive
payments, expense reimbursements, severance pay or other benefits, other than
any amounts or benefits payable to Mr. Dickenson under the terms of Hagler
Bailly's 401(k) plan. Mr. Dickenson's rights to such benefits shall be governed
by the terms of any such plan or program as in effect on the Resignation Date.
2. Release by Mr. Dickenson. With respect to matters relating to the
period prior to the date of this Agreement, Mr. Dickenson, on behalf of himself
and his agents, heirs, executors, administrators, successors and assigns, hereby
releases and forever discharges Hagler Bailly, and any and all of Hagler
Bailly's affiliates, successors and assigns, and any and all of their respective
officers, directors, employees, agents, and attorneys, from any and all
complaints, claims, demands, damages, lawsuits, actions, and causes of action
(whether known or unknown, occurred or contingent, liquidated or unliquidated)
which he now has or may have against any one or more of them for any reason
whatsoever in law or in equity, under federal, state or other law, whether the
same be upon statutory claim, contract, tort or other basis, including without
any limitation on the general nature of the foregoing release, any and all
claims arising from or relating to his employment or the termination of his
employment and any and all claims relating to any employment contract, any
employment statute or regulation, or any employment discrimination law,
including but not limited to the Age Discrimination in Employment Act of 1967,
as amended, Title VII of the Civil Rights Act of 1964, as amended, the Civil
Rights Act of 1866, as amended, all state and local laws, regulations and
ordinances prohibiting discrimination in employment, and other laws and
regulations relating to employment, including but not limited to the Employee
Retirement Income Security Act of 1974, as amended; provided, however, that this
release shall not apply to any claims for payments or benefits due or rights
under this Agreement or the terms of Hagler Bailly's 401(k) plan. Mr. Dickenson
agrees, without limiting the generality of the above release, not to file any
claim or lawsuit seeking monetary recovery and asserting any claims that are
released in this paragraph. Mr. Dickenson further hereby irrevocably and
unconditionally waives any and all rights to recover any relief and damages
concerning the claims that are released in this paragraph. Mr. Dickenson
represents and warrants that he has not previously filed or joined in any such
claims against Hagler Bailly or any of its affiliates, and that he has not given
or sold any portion of any claims released herein to anyone else, and that he
will indemnify and hold harmless the persons and entities released herein from
all liabilities, claims, demands, costs, expenses and/or attorneys' fees
incurred as a result of any such assignment or transfer.
3. Release by the Company. With respect to matters relating to the period
prior to the date of this Agreement, Hagler Bailly and its affiliates, on behalf
of themselves and their successors and assigns, and any and all of their
officers, directors, employees, agents, and attorneys, hereby release and
discharge forever all complaints, claims, demands, damages, lawsuits, actions
and causes of action (whether known or unknown, accrued or contingent,
liquidated or unliquidated)
which they now have or may have against Mr. Dickenson and his heirs, personal
representatives, successors and assigns, for any reason whatsoever in law or in
equity, under federal, state or other law, whether the same be upon statutory
claim, contract, tort or other basis, including without any limitation on the
general nature of the foregoing release, any and all claims relating to Mr.
Dickenson's employment relationship with Hagler Bailly or any of its affiliates
or service as a member of the Board or any committee thereof. Hagler Bailly and
its affiliates agree, without limiting the generality of the above release, not
to file any claim or lawsuit seeking monetary recovery and asserting any claims
that are released in this paragraph. Hagler Bailly and its affiliates further
hereby irrevocably and unconditionally waive any and all rights to recover any
relief and damages concerning the claims that are released in this paragraph.
Hagler Bailly and its affiliates represent and warrant that they have not
previously filed or joined in any such claims against Mr. Dickenson, and that
they have not given or sold any portion of any claims released herein to anyone
else, and that they will indemnify and hold harmless Mr. Dickenson and the
persons and entities released herein from all liabilities, claims, demands,
costs, expenses and/or attorneys' fees incurred as a result of any such
assignment or transfer.
4. Indemnification. Hagler Bailly agrees to indemnify Mr. Dickenson under
the terms and conditions provided for the indemnification of the directors,
officers, employees and agents of the Company in Article VIII, paragraphs 8.1,
8.2, 8.3, 8.4 and 8.5 of the Company's bylaws and Paragraph 8 of the Company's
Amended and Restated Certificate of Incorporation. Hagler Bailly agrees that it
will treat any and all requests by Mr. Dickenson for indemnification and
advancement of fees and expenses consistent with Hagler Bailly's treatment of
similar requests by other Hagler Bailly directors and officers. Hagler Bailly
agrees to continue and maintain, without interruption, a directors' and
officers' liability insurance policy covering Mr. Dickenson, provided such a
policy is available to Hagler Bailly, until such time as actions against Mr.
Dickenson are no longer permitted by law.
5. Non-Disclosure of This Agreement. Mr. Dickenson agrees that from and
after the date of his execution of this Agreement, he will not, directly or
indirectly, provide to any person or entity any information that concerns or
relates to the negotiation of or circumstances leading to the execution of this
Agreement or to the terms and conditions hereof except (a) to the extent that
such disclosure is specifically required by law or legal process or as
authorized in writing by Hagler Bailly; (b) to his tax advisors as may be
necessary for the preparation of tax returns or other reports required by law;
(c) to his attorneys as may be necessary to secure advice concerning this
Agreement; or (d) to members of his immediate family. Mr. Dickenson agrees that
prior to disclosing such information under parts (b), (c) or (d) of this
paragraph, he will inform the recipients that they are bound by the limitations
of this paragraph. Hagler Bailly agrees not to provide to any third party
(other than the Board, executive officers and professional advisors) the terms
of this Agreement or information that concerns or relates to the negotiation of
or circumstances leading to the execution of this Agreement unless Hagler Bailly
determines in good faith that it is specifically required to do so by law, rule,
regulation, legal process or a compelling business reason, provided that Hagler
Bailly agrees that prior to disclosing the terms of this Agreement or other
information, it will inform the recipients that they are bound by the
limitations of this paragraph and, to the extent such disclosure is not required
by law or legal process, Hagler Bailly shall ensure that any such recipient is
otherwise bound by a confidentiality agreement.
6. Confidential Information/Trading of Securities. Mr. Dickenson agrees
that any sensitive, proprietary or confidential information or data relating to
Hagler Bailly or any of its affiliated entities, including, without limitation,
trade secrets, customer lists, customer contacts, customer relationships, Hagler
Bailly or its affiliated entities' financial data, long range or short range
plans, and other data and information of a competition-sensitive nature, or any
confidential or proprietary information of others licensed to Hagler Bailly or
any of its affiliates that he acquired while an employee or director of Hagler
Bailly shall not be disclosed or used in a manner detrimental to the interests
of Hagler Bailly or any of its affiliates. Mr. Dickenson agrees and hereby
reaffirms his existing obligations under any and all confidentiality agreements
that he may have signed with Hagler Bailly or its affiliates. Nothing contained
herein shall restrict Mr. Dickenson from divulging or using for his own benefit
or for any other purpose information that is readily available to the general
public, so long as such information did not become available to the general
public as a direct or indirect result of Mr. Dickenson's breach of this
paragraph 6. Nothing contained herein shall restrict Mr. Dickenson's ability to
make any disclosures as may be required by law. Mr. Dickenson acknowledges that
in the course of his employment with Hagler Bailly or its affiliates he has
acquired material, non-public information concerning the Company or its
affiliates or possible transactions involving the Company, and he agrees that he
shall at all times continue to abide by all applicable laws relating to
purchasing or selling securities in reliance upon such information or from
communicating such information to any other person or entity under circumstances
in which it is reasonably foreseeable that such person or entity is likely to
purchase or sell such securities in reliance upon such information.
7. Return of Information/Cooperation. Mr. Dickenson agrees to return to
Hagler Bailly the originals and all copies of all files, materials, documents or
other property relating to the business of Hagler Bailly or its affiliates. Mr.
Dickenson may retain only personal correspondence relating to the duties and
responsibilities of his employment. Mr. Dickenson also agrees to cooperate with
Hagler Bailly, as may be reasonably requested from time to time with five (5)
business days written or oral notice, with respect to matters relating to the
business
of Hagler Bailly or its affiliates, provided that such cooperation does not
materially interfere or conflict with Mr. Dickenson's obligations or duties to
an employer or other business relationship. Mr. Dickenson will be reimbursed for
all reasonable, customary, and documented expenses incurred by him in connection
with such cooperation, consistent with Hagler Bailly's then-applicable policy
governing business expenses; provided, however, that Mr. Dickenson shall not be
reimbursed any wages or compensation for his time in connection herewith. In
addition to and not in contravention of the foregoing, Mr. Dickenson's agreement
to cooperate hereunder does not include an agreement to travel or to spend more
than 8 hours per business week on matters relating to the business of Hagler
Bailly or its affiliates. In the event a majority of the members of the Board
(excluding for this purpose any member whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended)) publicly recommends that the stockholders of Hagler Bailly
approve a transaction which would be a Change of Control (as defined in the
Employment Agreement) during the one hundred and twenty (120) day period
following the Resignation Date (the "Support Period"), Mr. Dickenson agrees, if
requested by Hagler Bailly, to vote any shares of Hagler Bailly common stock
that Mr. Dickenson has voting control of in support of and otherwise support
such Change of Control transaction. For a period of one hundred and twenty (120)
days following the Resignation Date, Mr. Dickenson further agrees that he will
not, directly or indirectly, (a) make, effect, initiate, cause or participate in
any Change of Control transaction with respect to the Company, or (b) act, alone
or in concert with others, to seek to control or influence the management, Board
or policies of the Company.
8. References; No Adverse Comment. Mr. Dickenson agrees to coordinate with
Hagler Bailly's General Counsel any requests for employment references from
Hagler Bailly, who shall in response to any such requests confirm Mr.
Dickenson's dates of employment, last position held, and last salary. Mr.
Dickenson and Hagler Bailly's General Counsel shall coordinate with respect to
the issuance of a press release, a copy of which is attached hereto as
Attachment A, announcing Mr. Dickenson's resignation. Mr. Dickenson agrees that
he will not make any disparaging public statements regarding Hagler Bailly,
Hagler Bailly's affiliates, Hagler Bailly's business, or Hagler Bailly's
employees, agents, officers or directors. Hagler Bailly, its executive officers,
and members of the Board will not make any disparaging public statements or
publicly release any disparaging information regarding Mr. Dickenson. Nothing in
this Paragraph 8 shall prohibit any person from making truthful statements when
required by order of a court or other legal body have jurisdiction.
9. Non-Solicitation. For the period through and including August 28, 2001,
Mr. Dickenson shall not do any of the following, directly or indirectly, without
the prior written consent of the Board (which consent shall not be unreasonably
withheld):
(a) solicit or call on, either directly or indirectly, any customer
or supplier with whom the Company or any of its current subsidiaries (the
"Restricted Entities") dealt with or otherwise had commercial arrangements or
relationships with during the period beginning on August 28, 1996 and ending on
the date hereof;
(b) influence or attempt to influence any supplier, customer or
potential customer of any of the Restricted Entities to terminate or modify any
written or oral agreement or course of dealing with the Restricted Entities; or
(c) influence or attempt to influence any person either (i) to
terminate or modify his or her employment, consulting, agency, distributorship
or other arrangement with any of the Restricted Entities, or (ii) to employ or
retain, or arrange to have any other person or entity employ or retain, any
person who has been employed or retained by any of the Restricted Entities as an
employee, consultant, agent or distributor at any time during the period
beginning on August 28, 1997 and ending on the date hereof.
10. Breach or Violation. Each of Hagler Bailly and Mr. Dickenson agree
that in the event of violation of the provisions of this Agreement, in addition
to any damages allowed by law, Mr. Dickenson and Hagler Bailly or its
affiliates, as applicable, shall be entitled to injunctive relief. In the event
of a judicial determination that any restriction contained in this Agreement is
unreasonable, Mr. Dickenson and Hagler Bailly agree that the court may modify
such restriction to make it reasonable prior to granting any injunctive relief.
11. Certain Representations. Each of the parties represents and
acknowledges that in executing this Agreement such party does not rely and has
not relied upon any representation or statement made by the other party or the
other party's agents, representatives or attorneys with regard to the subject
matter, basis or effect of this Agreement or otherwise. Notwithstanding the
foregoing, Hagler Bailly represents and warrants to Mr. Dickenson that the
execution, delivery and performance of this Agreement have been duly and validly
authorized on behalf of Hagler Bailly by its Board and that all corporate action
required to be taken by Hagler Bailly for the execution, delivery and
performance of this Agreement has been duly and effectively taken, and Hagler
Bailly acknowledges that Mr. Dickenson has relied upon such representations in
entering into this Agreement.
12. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective representatives, successors and
permitted assigns.
13. Other Agreements. The parties expressly agree that, except as set
forth herein, this Agreement supersedes the Employment Agreement and any other
employment contract Mr. Dickenson has or may have had with Hagler Bailly or its
affiliates.
14. Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the subject matter of this Agreement, and may not be
altered or amended except by an instrument in writing signed by both parties
hereto.
15. No Admission. The parties agree that nothing contained in this
Agreement shall constitute or be treated as an admission of liability or
wrongdoing by either of them.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia (excluding the choice
of law rules thereof). The language of all parts of this Agreement shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties.
17. Waiver. Neither the waiver by either party of a breach of or default
under any of the provisions of the Agreement, nor the failure of such party, on
one or more occasions, to enforce any of the provisions of the Agreement or to
exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any provisions, rights or privileges hereunder.
18. Further Assurances. The parties agree to take or cause to be taken
such further actions as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms, and conditions of this Agreement.
19. Assignment. Mr. Dickenson's rights and obligations hereunder may not
be assigned by him without the prior written consent of the Company.
20. Notice. All notices, demands, requests, or other communications which
may be or are required to be given, served or sent by either party to the other
party pursuant to this Agreement shall be in writing and shall be hand-delivered
(including delivery by courier) or mailed by first-class, registered, or
certified mail (return receipt requested, postage prepaid) to:
The Company:
Stephen V.R. Whitman, Esquire
Hagler Bailly, Inc.
1776 Eye Street N.W.
Washington, D.C. 20006-3700
with a copy to (which shall not constitute notice):
Richard T. Horan, Jr. Esq.
Hogan & Hartson LLP
8300 Greensboro Drive, Suite 1100
McLean, VA 22102
Mr. Dickenson:
5140 Rockwood Parkway, N.W.
Washington, D.C. 20016
with a copy to (which shall not constitute notice):
Martin Lipton, Esq.
Wachtell, Lipton Rosen & Katz
51 West 52nd Street
New York, NY 10019
Either party may designate by notice in writing a new address to which any
notice, demand, request, or communication may thereafter be so given, served, or
sent. Each notice, demand, request, or communication which shall be mailed,
delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent, and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery receipt,
or the affidavit of messenger being deemed conclusive evidence of such delivery)
or at such time as delivery is refused by the addressee upon presentation.
21. Acknowledgment. With respect to the general release in paragraph 2
hereof, Mr. Dickenson agrees and understands that he is specifically releasing
all claims under the Age Discrimination in Employment Act, as amended, 29
U.S.C. ss. 621 et seq. Mr. Dickenson acknowledges that he has read and
understands the foregoing Agreement and executes it voluntarily and without
coercion. Mr. Dickenson further acknowledges that he is being advised in writing
herein to consult with an attorney and that he has consulted with an attorney
who had the opportunity to review this Agreement and advise Mr. Dickenson
concerning this
Agreement prior to Mr. Dickenson's execution of this Agreement. Mr. Dickenson
further acknowledges that he has been given a period of 21 days within which to
consider and execute this Agreement, unless he voluntarily chooses to execute
this Agreement before the end of the 21-day period. Mr. Dickenson understands
that he has seven days following his execution of this Agreement to revoke it in
writing, and that this Agreement is not effective or enforceable until after
this seven-day period. For such revocation to be effective, notice must be
received by Richard T. Horan, Jr., Esq., Hogan & Hartson L.L.P., 8300 Greensboro
Drive, Suite 1100, McLean, Virginia 22102, no later than 5:00 p.m. on the
seventh calendar day after the date by which Mr. Dickenson has signed this
Agreement. Mr. Dickenson expressly agrees that, in the event he revokes this
Agreement, the Agreement shall be null and void and have no legal or binding
effect whatsoever. The parties hereto recognize that Mr. Dickenson may elect to
sign this Agreement prior to the expiration of the 21-day consideration period
specified herein, and Mr. Dickenson agrees that if he elects to do so he shall
manifest such election by signing the attachment hereto.
22. Attorneys' Fees and Expenses. The parties acknowledge that each of
them shall be responsible for the payment of his or their own attorneys' fees,
costs, and expenses incurred in connection with the negotiation and execution of
this Agreement.
23. No Offset/Mitigation. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against Mr.
Dickenson or others. The foregoing shall not effect, impair or in any way limit
the Company's right to recover for breach or violation of the provisions of this
Agreement pursuant to Paragraph 9 above. In no event shall Mr. Dickenson be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to Mr. Dickenson under any of the provisions of this
Agreement and, such amounts shall not be reduced whether or not Mr. Dickenson
obtains other employment.
IN WITNESS HEREOF, the parties hereto have caused this Employment
Separation Agreement and General Release to be executed and delivered as of the
date written below.
WILLIAM E. DICKENSON
By: /s/ William E. Dickenson
------------------------------------
Date: May 3, 2000
---------------------------------
/s/ Betsy Trimber
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Witness
HAGLER BAILLY, INC.
By: /s/ Stephen V. R. Whitman
Date: May 3, 2000
- ----------------------------------------
/s/ Betsy Trimber
- ----------------------------------------
Witness
ELECTION TO EXECUTE PRIOR TO EXPIRATION
OF TWENTY-ONE DAY CONSIDERATION PERIOD
I, William E. Dickenson, understand that I have 21 days within which to
consider and execute the above Employment Separation Agreement and General
Release. However, after having an opportunity to consult counsel, and after
consulting counsel, I have freely and voluntarily elected to execute the
Employment Separation Agreement and General Release before such 21-day period
has expired.
May 3, 2000 /s/William E. Dickenson
- ----------------------- -----------------------------
Date William E. Dickenson