EXHIBIT 2(b)
AGREEMENT
AGREEMENT made this 25th day of October, 1995 between Xxxxxx
Xxxxxxxxx residing at 00000 Xxxxxx Xxxx, Xx. Xxxxx Xxxxxxxx 00000
(hereinafter referred to as the "Vice Chairman"), and Insituform
Technologies, Inc., a corporation organized and existing under the
laws of the State of Delaware (hereinafter referred to as the
"Corporation").
W I T N E S S E T H:
WHEREAS, the Corporation has entered into an Agreement and
Plan of Merger dated as of May 23, 1995 (hereinafter referred to as
the "Merger Agreement") with Insituform Mid-America, Inc., a
Delaware corporation (hereinafter referred to as "IMA"), and ITI
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Corporation (hereinafter referred to as
"Acquisition Sub"), pursuant to the terms and subject to the
conditions of which the Corporation has agreed to the merger of
Acquisition Sub into IMA, as a result of which IMA will become a
wholly-owned subsidiary of the Corporation; and
WHEREAS, it is a condition to the closing under the Merger
Agreement that the parties hereto execute and deliver this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth, the Vice Chairman hereby agrees with
the Corporation as follows:
SECTION I
During the Term (as hereinafter defined), ITI shall engage and
the Vice Chairman shall serve as Vice Chairman of the Board of
Directors of the Corporation. The Corporation acknowledges that the
duties to be performed by the Vice Chairman under this Agreement do
not require him to serve on a full-time basis and that the Vice
Chairman will not be available to serve on a full-time basis.
SECTION II
A. Subject to the provisions of this Agreement hereinafter
contained, for purposes of this Agreement the period (herein
referred to as the "Term") of the Vice Chairman's obligations under
Section I hereof shall commence on the date hereof and shall
continue for a period expiring on December 9, 1998, or until such
other date prior thereto on which the Vice Chairman's engagement
terminates pursuant hereto.
B. If the Vice Chairman shall, during the Term fail to
perform his duties under this Agreement owing to illness or other
incapacity which shall continue for a period of more than six
months, the Corporation shall have the right to terminate the Term
as of a date to be specified in a notice to that effect, whereupon
the Vice Chairman shall continue to receive his retainer at the
rate provided in Section III up to the last day of the
Corporation's regular payroll accounting period in which such
termination shall take effect.
C. The Term may further be terminated, at the option of the
Corporation, upon ten days' prior written notice, for "cause" (as
hereinafter defined).
D. In the event of the Vice Chairman's death during the
Term, the Term shall terminate immediately and the Vice Chairman's
legal representatives shall be entitled to receive his retainer at
the rate provided in Section III up to the last day of the
Corporation's regular payroll accounting period in which his death
shall occur.
E. The Vice Chairman shall have the right, upon at least 60
days' written notice delivered to the Corporation, to terminate the
Term.
SECTION III
A. The Corporation hereby agrees to pay, and the Vice
Chairman hereby agrees to accept, as full compensation for the
services to be rendered by him under Section I hereunder, an annual
fee of $100,000, payable in equal installments at the end of such
regular payroll accounting periods as are established by the
Corporation, or in such other installments upon which the parties
hereto shall mutually agree.
B. The Corporation shall reimburse the Vice Chairman for
reasonable and necessary expenses incurred by him on behalf of the
Corporation in the performance of his duties hereunder during the
Term, provided that such expenses are adequately documented in
accordance with the Corporation's then customary policies. During
the Term, the Vice Chairman shall, to the extent such plans permit
coverage of the Vice Chairman thereunder in accordance with the
terms thereof generally applicable, be entitled to participate at
the Corporation's expense in the Corporation's group medical, life
and accident insurance plans or, if not so eligible, the Vice
Chairman shall receive from the Corporation, at its expense,
coverage substantially similar thereto. The Vice Chairman shall
receive the use of the automobile heretofore provided to him by
IMA, for his activities hereunder (and with a reasonably similar
replacement vehicle at the expiration of the lease therefor).
During the Term, the Corporation shall furnish to the Vice Chairman
office facilities appropriate to his performance hereunder and
secretarial assistance in connection therewith.
SECTION IV
A. The Vice Chairman shall hold in absolute secrecy and
treat confidentially all Confidential Material (as hereinafter
defined), and not disclose, reproduce, publish, distribute or by
any other means disseminate, in whole or in part, any Confidential
Material, except as shall be authorized by the Disclosing Party (as
hereinafter defined). The Vice Chairman shall not in any manner use
for his benefit or for the benefit of others any Confidential
Material, except as shall be authorized by the Disclosing Party.
B. Subsequent to the date hereof and for a period
(hereinafter referred to as the "Covenant Term") expiring at the
later of (x) two years after the termination or expiration of all
service rendered by the Vice Chairman to the Corporation or any of
its Affiliates (as hereinafter defined), whether as employee,
consultant, director or otherwise, unless any such termination
shall be effectuated by the Corporation or any Affiliate without
"cause" (as hereinafter defined), or (y) five years after the date
of this Agreement, the Vice Chairman shall not engage, directly or
indirectly, whether as principal, agent, distributor,
representative, stockholder or otherwise, in any activities which
are in any way competitive with the business conducted by the
Corporation or any Affiliate thereof, within any territory in which
the Corporation or any Affiliate, directly or indirectly, conducts
such business.
C. The Vice Chairman hereby assigns to the Corporation the
entire right, title and interest in and to any and all inventions,
trade secrets, improvements, plans and specifications: (i) which he
alone, or in conjunction with others, may make, conceive or
develop; and (ii) which relate to or derive from any subject matter
or problem with respect to which the Vice Chairman shall have
become informed by reason of his relations with the Corporation or
any Affiliate, or to any product or process involved in the
business of the Corporation or any Affiliate.
D. The Vice Chairman further agrees that he will promptly
disclose fully to the Corporation the aforesaid inventions, trade
secrets, improvements, plans and specifications and will at any
time render to the Corporation such reasonable cooperation and
assistance (excluding financial assistance) as the Corporation may
deem to be advisable in order to obtain copyrights or patents, as
the case may be, on or otherwise perfect or defend the
Corporation's rights in each such invention, trade secret,
improvement, plan or specification, including, but not limited to,
the execution of any and all applications for copyrights or
patents, assignments of copyrights or patents and other instruments
in writing which the Corporation, its officers or attorneys may
reasonably deem necessary or desirable, and the aforesaid
obligation shall be binding on the assigns, executors,
administrators and other legal representatives of the Receiving
Party.
E. For purposes of this Agreement: (i) "Confidential
Material" shall mean any and all information furnished to the Vice
Chairman, whether before or after the date hereof, by the
Corporation, any Affiliate, or any of their respective licensees,
or any of their respective employees, directors, agents or
representatives (each herein referred to as a "Disclosing Party"),
or acquired, received, developed or learned by the Vice Chairman in
the course of his relations with any Disclosing Party or relating
to the business and affairs of the Corporation or any Affiliate, or
any licensee thereof, or to any product or process involved in the
business of the Corporation or any Affiliate, or the proprietary
plans, policies, business or affairs of any Disclosing Party;
provided, however, that the term "Confidential Material" shall not
include information which:
(x) becomes or has become generally available to
the public other than as a result of a disclosure by the
Vice Chairman;
(y) was available to the Vice Chairman on a non-
confidential basis prior to its disclosure to the Vice
Chairman by the Disclosing Party; or
(z) becomes available to the Vice Chairman on a
non-confidential basis from a source other than the
Disclosing Party, provided that such source is not bound
by a confidentiality agreement with the Disclosing Party;
(ii) "Affiliate" shall mean any person or entity directly or
indirectly controlled by the Corporation; and (iii) "cause" shall
mean the Vice Chairman's neglect of duties, breach of his
engagement with the Corporation , conflict of interest, or refusal
to follow directives of the Board of Directors of the Corporation,
in each case (if such matter is susceptible of correction) if not
corrected within ten days after written notice thereof by the
Corporation to the Vice Chairman (or if such correction may not
reasonable be completed within such period, if diligent efforts to
effectuate such correction shall not have been initiated within
such period and continued through and completed within 30 days of
such notice); or conviction of a crime.
F. In view of the irreparable harm and damage which would be
incurred by the Corporation or any Affiliate, or any other
Disclosing Party, in the event of any violation by the Vice
Chairman of any of the provisions hereof, the Vice Chairman hereby
consents and agrees that, if he violates any such provisions, the
Corporation or any Affiliate, or (with respect to such secrecy or
non-use obligations) such other Disclosing Party, shall be entitled
to an injunction or similar equitable relief to be issued by any
court of competent jurisdiction restraining the undersigned from
committing or continuing any such violation.
SECTION V
The Vice Chairman hereby represents, warrants and covenants
that:
A. He is duly authorized to execute and deliver this
Agreement and to perform his covenants and agreements hereunder.
When executed and delivered by him, this Agreement shall constitute
his valid and legally binding agreement enforceable against him in
accordance with the terms hereof, except as may be limited by
bankruptcy, insolvency or other laws affecting generally the
enforceability of creditors' rights and by limitations on the
availability of equitable remedies.
B. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated herein, will
violate any law, rule, regulation, writ, judgment, injunction,
decree, determination, award, or order of any court or governmental
agency or instrumentality, domestic or foreign, or conflict with or
result in any breach of any of the terms of or constitute a default
under or result in the termination or for the creation of any
mortgage, deed of trust, pledge, lien security interest or other
charge or encumbrance of any nature pursuant to the terms of any
contract or agreement to which he is a party or by which he or any
of his assets or properties is bound.
SECTION VI
A. All notices, requests, instructions or documents
hereunder shall be in writing and delivered personally or sent by
registered or express mail, postage prepaid, as follows:
(i) if to the Vice Chairman:
Xxxxxx Xxxxxxxxx
00000 Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx Xxxx, Esq.
Xxxxxxxx & Xxxxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(ii) to the Corporation:
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Krugman, Xxxxxxxx & Xxxxxxxx
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
or to such other address as either party may designate by written
notice to the other party. If delivered personally, the date on
which such notice, request, instruction or document is delivered
shall be the date on which such delivery is made, and if delivered
by mail, the date on which deposited in the mail. Each notice,
request, instruction or document shall bear the date on which it is
delivered.
B. This Agreement is personal as to the Vice Chairman and
shall not be assignable by the Vice Chairman. Subject to the
foregoing, all of the terms and provisions of this Agreement shall
be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors
and assigns and legal representatives and (with respect to any
secrecy or non-use obligations) any other Disclosing Party.
C. This Agreement constitutes the complete understanding
between the parties hereto with respect to the transactions
contemplated herein, no statement, representation, warranty or
covenant has been made by either party hereto except as expressly
set forth herein and therein, and no modification hereof shall be
effective unless in writing and signed by a party against which it
is sought to be enforced.
D. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee applicable in
the case of agreements made and to be performed entirely within
such State.
E. It is the intention of the Vice Chairman and the
Corporation that the provisions of this Agreement shall be enforced
to the fullest extent permissible under the laws and public
policies of each jurisdiction in which enforcement is sought, but
that the unenforceability of any provisions of this Agreement shall
not render unenforceable, or impair, the remainder of this
Agreement. Accordingly, if any provision hereof is determined to be
invalid or unenforceable, either in whole or in part, this
Agreement shall be deemed amended to delete or modify, as
necessary, the offending provision and to alter the remainder of
this Agreement in order to render it valid and enforceable.
F. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By s/Xxxxxxx X. Xxxxxx
--------------------------------
VICE CHAIRMAN:
s/Xxxxxx Xxxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxx