Exhibit 10.11.3
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EMPLOYMENT AGREEMENT
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AGREEMENT, made effective the 1st day of August, 1996 (the "Effective
Date") between American ECO Corporation ("Company"), having its principal
office at 00000 Xxxxx Xxxx, Xxxxxxx, Xxxxx, 00000; and Xxxxx X. Xxxxxx, an
individual ("Employee") residing at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx,
00000.
WHEREAS, Company desires to employ the services of the Employee as a
Consultant from August 1, 1996 until August 19, 1996 and then as the
President and Chief Executive Officer of EIF Holding, Inc. and Vice
President of American ECO Corporation, the parties of this Agreement hereby
agree as follows:
A. Employment:
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1. Throughout the effective term of this agreement, Company shall
employ Employee and Employee shall render services to Company and the
businesses heretofore and hereafter conducted by Company in the capacity as
consultant from August 1, 1996 to August 19, 1996 and then as Vice
President of American ECO Corporation and President and Chief Executive
Officer of EIF Holding, Inc. Employee shall perform all services, acts or
things necessary or advisable to consultant, manage, supervise and conduct
the business of Company, subject to the policy set by the Board of
Directors. Employee shall have full authority to act on behalf of the
Company, except to the extent limited by the Bylaws of the Company. The
Company and the Employee agree that no press release or public statement
will be made regarding this employment agreement until August 19, 1996,
without the consent of both parties.
2. Throughout the period of his employment hereunder, Employee shall
devote his business time, attention, knowledge and skills, faithfully,
diligently and to the best of his ability, to the active performance of his
duties hereunder, with consideration being given to duties that the
Employee may need to perform for his previous employer during the
consulting time period of this agreement.
B. TERM OF EMPLOYMENT; TERMINATION OF AGREEMENT:
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1. Subject to the earlier termination of this Agreement in
accordance with the terms hereof, the term of this Agreement shall
commence, effective as of August 1, 1996 (the "Commencement Date") and the
term of this Agreement shall continue through and include December 31, 2000
(the "Termination Date").
2. Anything contained in Section 1 to the contrary notwithstanding,
this Agreement may be terminated at the option of Company for "Cause" (as
herein defined), effective upon the giving of written notice of termination
to Employee. As herein used, the term for "Cause" shall mean and be
limited to:
(a) Any act committed by Employee against Company, its parent or
subsidiaries or divisions constituting: (A) fraud, (B) misappropriation of
corporate opportunity, (C) self-dealing, (D) embezzlement of funds, (E)
felony conviction for conduct involving moral turpitude or other criminal
conduct adversely affecting the operations of Company, or its parent or
subsidiaries or divisions, or (F) the continued disregard by Employee of
the reasonable directions and policies of the Board of Directors of the
Company, provided that such disregard or noncompliance by Employee
continues for a period of sixty days after written notice thereof is
delivered to the Employee by the Board of Directors of Company; or
(b) the breach or default by Employee in the performance of any
material covenant on the part of Employee to be performed under this
Agreement; or
(c) chronic substance abuse or any other form of addiction which
impairs Employee's ability to perform his duties hereunder.
3. Anything contained in Section 1 to the contrary notwithstanding,
this Agreement may be terminated by Company (i) upon the death of Employee,
or (ii) on thirty (30) days' prior written notice to Employee, in the event
that Employee shall be physically or mentally disabled or impaired so as to
prevent him from continuing the normal and proper performance of his duties
and responsibilities hereunder for a period of three (3) consecutive
months.
The initial determination as to whether Employee is disabled or
impaired shall be made by the physician regularly treating the condition
causing the disability. Company shall have the right to require Employee
to be examined by a physician duly licensed to practice medicine and
surgery in the State of Texas to determine such physician's opinion as to
Employee's disability. If such physician's opinion differs from that of
the physician treating Employee, or a physician thereafter retained by
Employee, they shall forthwith select a third physician so licensed whose
opinion, after examination and review of available information, shall be
conclusive and binding upon all parties, thereto. All costs of the
physician retained by Company shall be paid by Company. If a third
physician is required, then the costs of that physician shall be paid by
Company.
4. Upon any termination of this Agreement by Company as a result of
Employee's death or permanent disability pursuant to Section 3, Company
shall be liable for, and shall pay or shall cause to be paid to Employee or
his personal representative, as the case may be, Employee's Base Salary for
an additional twenty-four (24) month period from the date of termination
less (in the case of permanent disability), any health and disability
insurance payments made to or on behalf of Employee during such twenty-four
(24) month period.
5. Upon any termination of this Agreement by Company for Cause
pursuant to Section 2 above, neither Company nor any shareholder,
subsidiary or division thereof shall be liable for or shall pay or cause to
be paid to Employee any further remuneration, compensation or other benefit
hereunder.
6. If Company terminates Employee for any result other than as
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provided: (a) in Section 2, (b) in Section 3, or (c) as a result of
Employee's voluntary resignation of employment (not constituting a
constructive discharge), Company shall be obligated to pay or shall cause
to be paid to Employee the Base Salary, as and when the same would have
otherwise become due and payable hereunder until the earlier to occur of
(i) twenty-four (24) months after the date of termination; (ii) the date
that Employee obtains full time reemployment, unless such reemployment is
at a rate of compensation that is less than 80% of the Base Salary, in
which event Company shall pay to Employee the difference between the Base
Salary and the new compensation, until the earlier of the dates described
in clauses (i) and (iii) hereof; or (iii) the Termination Date.
7. Notwithstanding any termination of this Agreement, whether with
cause or without cause the provisions of Section D, below, shall remain
effective and binding on the parties to this Agreement.
C. COMPENSATION; EXPENSES; FRINGE BENEFITS.
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1. BASE SALARY. As compensation for his services to be rendered
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hereunder, Company shall pay or cause to be paid to Employee for the period
commencing as of the Commencement Date and ending on the Termination Date,
a salary at the rate of Fourteen Thousand Five Hundred Eighty-Four dollars
and 00/100 (14,584.00) Dollars per month, payable in accordance with
standard company policy.
2. EXPENSES. In addition to the renumeration set forth above,
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throughout the period of Employee's employment hereunder, Company shall
also reimburse, or cause to be reimbursed to Employee, upon presentment by
Employee to Company, as applicable, of appropriate receipts and vouchers
therefore, for any reasonable business expenses, including air and other
travel expenses and customer development expenses, incurred by Employee in
connection with the performance of his duties and responsibilities
hereunder;
3. FRINGE BENEFITS. Company shall also make available, or cause to
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be made available, to Employee, throughout the period of his employment
hereunder, such benefits, including any disability, hospitalization,
medical benefit plan, pension plan or other benefits or policy, as are put
into effect by Company for its other executive employees.
4. AUTOMOBILE ALLOWANCE. In addition to the compensation set forth
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above, Employee shall be provided a car or paid a car allowance of Seven
Hundred and no/100 ($700.00) Dollars per month. This amount shall be paid
on the first day of each month, and the company shall also reimburse
Employee for all actual expenses associated with operating and maintaining
Employee's vehicle. Employee shall submit receipts or other evidence of
such expenditures, and Company shall pay these amounts to Employee within
thirty (30) days of receipt of the invoices.
5. STOCK OPTION GRANTS. In addition to the compensation set forth
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above, Company shall issue to Employee an option to purchase Twenty Five
Thousand (25,000) shares of the common stock of the Company per annum based
on performance which will be both financial and goal oriented and Three
Hundred Thousand (300,000) share options of EIF Holding, Inc. upon
employment and approval by The Board of Directors. The stock option grants
detailed above are pursuant to the currently effective Employee Stock
Option Plan, as approved by the Toronto Stock Exchange. Employee's vesting
rights and other rights and privileges with respect to this stock option
shall be governed by the terms and provisions of said stock option plan, a
copy of which has been delivered to Employee for his review. The stock
option set forth herein is not assignable by Employee.
6. ANNUAL BONUS. In addition to the compensation set forth above,
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Employee shall be entitled to participate in an annual bonus pool equal to
five percent (5%) of the net profits of Company, payable within (90) days
of closing of the Company's fiscal year, and will also be considered for
the annual bonus program of EIF Holding, Inc. Term "Net Profit" shall mean
the consolidated taxable income of Company for the fiscal year of the
Company, determined in accordance with generally accepted accounting
principles, by the certified public accountants retained by Company to
perform its annual audit. The distribution of the annual bonus pool shall
be at the discretion of the President and Chief Executive Officer of
American ECO Corporation for the Company.
7. VACATION, HOLIDAY, AND SICK LEAVE. Employee shall be entitled to
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annual vacations, holidays and sick leave in accordance with the policies
and procedures established and in effect from time to time for the
Company's Employees but not less than three (3) weeks paid vacation per
annum.
D. CONFIDENTIALITY INFORMATION; PERSONAL RELATIONSHIPS. Employee
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agrees that for so long as he is employed by Company (the "Restrictive
period"), he shall keep secret and retain in strictest confidence all
confidential matters of the Company, its clients and suppliers, and the
"know-how", trade secrets, confidential client lists, details of client,
subcontractor or consultant contracts, pricing policies, operational
methods, marketing plans or strategies, project development, acquisition or
bidding techniques or plans, business acquisition plans, new personnel
acquisition plans, technical processes, inventions and research projects of
Company learned by Employee and directly or indirectly resulting from his
employment by Company, unless (i) such information is generally available
to the public without restriction, (ii) Employee obtains confidentiality
agreements with respect to such confidential information, (iii) such
information is provided to a customer or supplier of the Company in the
ordinary course of businesses, (iv) such disclosure is approved by the
President or the Board of Directors of Company, or (v) Employee is under
compulsion of either a court order or a governmental agency's or
authority's inquiry, order or request to so disclose such information.
2. PROPERTY OF COMPANY.
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(a) Except as otherwise provided herein all lists, records and
other non-personal documents of paper (and all copies thereof), including
such items stored in computer memories, on microfiche or by any other
means, made or compiled by or on behalf of Employee, or made available to
Employee relating to Company are and shall be the property of Company,
shall be delivered to Company on the date of termination of this Agreement.
(b) All inventions, including any procedures, formulas, methods,
processes, uses, apparatuses, patterns, designs, drawings, devises or
configurations of any kind, any and all improvements to them which are
developed, discovered, made or produced, trade secrets, or information used
by Company shall be the exclusive property of Company, and shall be
delivered to Company as applicable, on the earlier of the expiration or the
termination of this Agreement.
(c) All Company names, logos, trade marks, copy rights, slogans,
insignias and the like shall be the exclusive property of Company, and
Employee shall not be entitled to use, divert, imitate, duplicate or
otherwise deal with said property or property rights, without prior written
consent of Company; provided, however, that Employee and Company agree that
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in the event the Company at any time during the term of this Employment
Agreement adopts or utilizes the name of Employee in its advertising or
promotional materials, that Employee shall have the right at any time
during or after the termination of this Employment Agreement to require
Company to cease using Employee's name or likeness in connection with any
such advertising or marketing materials promoting the Company or its
products.
3. EMPLOYEE OF COMPANY. Upon termination of this contract by either
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party for any reason, with or without cause, Employee shall not, directly
or indirectly, during the course of his employment or for a period of
twenty-four (24) months after such termination, solicit any employee of
Company, or encourage any such employee to leave such employment without
the prior written approval of Company as applicable.
E. DEFAULT. In the event that either party hereto shall breach any
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of the terms of this Agreement, Company shall be reimbursed by such
defaulting party for all costs and expenses, including reasonable
attorney's fees, incurred by the non defaulting party in enforcing the
terms of this Agreement and/or recovering damages as a result of any such
breach.
F. BINDING EFFECT. This contract is a personal services agreement
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between Company and Employee. Accordingly, Employee is not authorized to
voluntarily or involuntarily transfer or assign any of his contractual
rights contained herein, and any such attempted voluntary or involuntary
transfer or assignment of this agreement. Except for this restriction upon
sign ability, all of the terms and conditions of this Agreement shall be
binding upon and inure to the benefit of Employee and Company and any
successor-in-interest to any of them.
G. NOTICES. Except as herein provided, any notice, request, demand
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or other communication required or permitted under this Agreement shall be
in writing and shall be deemed to have been given when delivered personally
or when mailed by certified mail, return receipt requested, addressed to
the party at the address of such party first set forth above, or at such
other address as such party may hereafter have designated by notice.
If to the Company at the address first above written with copies
to:
American Eco Corporation
Attention: Xxxxxxx X. XxXxxxxx, President and CEO
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
or to any other address as shall be designated from time to time by
Company.
H. INDEMNIFICATION. The Company shall indemnify, hold harmless and
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protect Employee, his heirs, executors, administrators and legal
representatives, from and against all or any portion of any expenses,
including reasonable attorney's fees incurred by Employee, actually and
necessarily incurred by him in connection with or arising out of any
action, suit or proceeding in which he may be involved by reason of his
being or having been an officer and representative of Company, whether or
not he continues to be an officer or representative of the Company at the
time such claim is prosecuted against Employee, such expenses to include
the cost of reasonable settlements and the satisfaction of final, non-
appealable judgments against Employee, in connection with the matters
covered hereby. However, Company shall not indemnify Employee with respect
to matters as to which Employee shall be finally adjudged in any such
action, suit or proceeding to be guilty of negligence or misconduct in the
performance of his duties as an officer of Company or in which Employee is
found to be in material breach of this Agreement. The foregoing rights of
indemnification shall not be exclusive of any other rights to which
Employee may be entitled as a matter of law, by agreement, by approval of
the Board of Directors of Company, or otherwise.
I. MISCELLANEOUS.
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1. Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged herewith.
2. The captions and paragraph headings used in the Agreement
are for convenience of reference only, and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
3. This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be
governed and construed under the laws of the Province of Ontario, Canada.
4. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but
all of which together shall constitute one and the same instrument.
5. ANY DISPUTE INVOLVING THE INTERPRETATION OR APPLICATION OF
THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION BEFORE
ONE OR MORE ARBITRATORS UNLESS MUTUALLY AGREED TO OTHERWISE. THE AWARD OF
SUCH ARBITRATOR(S) MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION
IN THE PROVINCE OF ONTARIO.
6. This Agreement is intended for the sole and exclusive
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors, and permitted
assigns, and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit here from absent the express
written consent of the party to be charged with such reliance or benefit.
7. In the event this Agreement is terminated by Company for
Cause, in addition to the other rights and remedies that Company shall have
in accordance with the terms of this Agreement, Company shall have the
right to immediately declare due and payable all loans and advances made or
guaranteed by Company or its shareholders to Employee, at which time
Employee shall be required to repay in full said loans and advances,
including all accrued interest thereon, in accordance with the terms and
provisions of the loan documents evidencing said loan and/or advances. The
Company shall have the right to offset and credit against the accrued
interest and unpaid principal balance of such loans, all accrued and unpaid
salary, commissions and/or profit sharing distributions accrued by unpaid
to Employee prior to the date of termination.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the date first set forth above.
COMPANY:
ATTEST: AMERICAN ECO CORPORATION
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
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Its: President
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EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
