Exhibit 10.23
EMPLOYMENT
AGREEMENT
I, Charles M. Dauber, agree to the
terms and conditions of employment with American Electric
Technologies, Inc., a Florida corporation (the “
Company ”), set forth in this Employment Agreement
(“ Agreement ”).
1. Term of Employment . My
employment under this Agreement shall commence on March 1,
2009 (“ Effective Date ”) and end on
December 31, 2009 (“ Expiration Date ”), or
such earlier date on which my employment is terminated under
Section 5 of this Agreement. If the Company continues to
employ me beyond the Expiration Date without entering into a
written agreement extending the term of this Agreement, all
obligations and rights under this Agreement shall prospectively
lapse as of the Expiration Date, except the Company’s
obligation to pay me two years salary and expected bonus under 5.a.
Change of Control, the Company’s ongoing indemnification
obligation under Section 4(g), my confidentiality and other
obligations under Section 6, and our mutual waiver under
Section 8, and I thereafter shall be an at-will employee of
the Company.
2. Nature of Duties .
Company’s Board of Directors will elect me Senior
Vice-President of Company and President of M&I Electric. As
such, I shall work exclusively for the Company and shall have all
of the customary powers and duties associated with those positions.
I will serve as chief executive officer of M&I Electric and I
will be responsible for all of M&I Electric’s operations
and assets except those specifically assigned to others by the CEO
of AETI. I recognize and agree that the Company may alter my duties
from time to time. I shall devote my full business time and effort
to the performance of my duties for the Company, which I shall
perform faithfully and to the best
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of my ability. I shall be subject to the
Company’s policies, procedures and approval practices, as
generally in effect from time to time. Notwithstanding the
foregoing or any other provision of this Agreement, it shall not be
a breach or violation of this Agreement for me to (i) serve on
non-profit, civic or charitable boards or committees,
(ii) deliver lectures, fulfill speaking engagements or teach
at educational institutions, (iii) serve on the board of
directors of a non-competing company, or (iv) manage personal
investments, so long as such activities do not significantly
interfere with or significantly detract from the performance of my
responsibilities to the Company in accordance with this
agreement.
3. Place of Performance . I
shall be based at the Company’s headquarters in Houston,
Texas, except for required travel on the Company’s
business.
4. Compensation and Related
Matters .
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a. Base Salary.
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$
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187,500.00
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b. Expected Bonus.
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$
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75,000.00
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Total Expected Compensation.
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$
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262,500.00
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c. The Expected Bonus will be paid
to me if Company meets its annual budget and operating plan
objectives. A greater bonus may be paid if performance is above
target based on the operating plan objectives at the discretion of
the Board of Directors of Company.
d. If I am still employed by the
Company on December 31, 2009, I will receive a Retention Bonus
of $35,000 which will be paid to me on or before March 15,
2010.
e. I will be eligible to participate
in the Company’s Employee Stock Incentive Plan. If Company
meets its annual budget and operating plan objectives I will be
eligible
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to receive a grant of 15,000 shares
of stock that will vest over a four year period in accordance with
the Company’s equity bonus plan.
f. Automobile Allowance . The
Company shall provide an automobile, or shall provide to me an
automobile allowance equal to $800.00 per month.
g. Standard Benefits . During
my employment, I shall be entitled to continue to participate in
all executive benefit plans and programs, including paid vacations,
and other benefits generally available to other similarly situated
Company executives in accordance with the terms of those plans and
programs and applicable law. The Company shall have the right to
terminate or change any such plan or program at any
time.
h. Indemnification . The
Company shall extend to me the same indemnification arrangements as
are generally provided to other similarly situated Company
executives, including after termination of my
employment.
i. Expenses . I shall be
entitled to receive prompt reimbursement for all reasonable and
customary travel and business expenses I incur in connection with
my employment, but I must incur and account for those expenses in
accordance with the policies and procedures established by the
Company.
j. Sarbanes-Oxley Act Loan
Prohibition . To the extent that any Company benefit, program,
practice, arrangement, or this Agreement would or might otherwise
result in my receipt of an illegal loan (“ Loan
”), the Company shall use reasonable efforts to provide me
with a substitute for the Loan that is lawful and of at least equal
value to me. If this cannot be done, or if doing so would be
significantly
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more expensive to the Company than
making the Loan, the Company need not make the Loan to me or
provide me substitute for it.
5. Termination .
a. Rights and Duties . If my
employment is terminated, I shall be entitled to the amounts or
benefits shown on the applicable row of the following table,
subject to the balance of this Section 5. The Company and I
shall have no further obligations to each other, except the
Company’s Change of Control obligation, the Company’s
ongoing indemnification obligation under Section 4(g), my
confidentiality and other obligations under Section 6, and our
mutual waiver under Section 8, or as set forth in any written
agreement I subsequently enter into with the Company.
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DISCHARGE
FOR CAUSE
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Payment or
provision when due of (1) any earned but unpaid base salary,
expense reimbursements, and vacation days accrued prior to
termination of employment, and (2) other unpaid vested amounts or
benefits under Company compensation, incentive, and benefit
plans.
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DISABILITY
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Same as for
“Discharge for Cause” EXCEPT that I also shall be
potentially eligible for disability benefits under any
Company-provided disability plan in which I then
participate.
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DISCHARGE
OTHER THAN FOR CAUSE OR DISABILITY
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Same as for
“Discharge for Cause” EXCEPT that, in exchange for my
execution of a release in accordance with this section, my base
salary, but not my employment, shall continue for up to twelve
months and Company will pay COBRA health
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insurance
premiums for me and my family for a like period while I seek other
employment. This salary and insurance will be paid
1
/ 12 th monthly and will cease upon my commencement of
other employment.
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RESIGNATION
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Same as for
“Discharge for cause “
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DEATH
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Same as for
“Discharge for Cause” EXCEPT that payments shall be
made to the person or entity prescribed by Company
policies.
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EXPIRATION
OF AGREEMENT
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Same as for
“Discharge other than for cause or
disability.”
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CHANGE OF
CONTROL
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Payment of two
year’s salary and expected bonus as specified in 4.a. and b.
in the event of a change of control after which my employment was
ended by either party, plus forward vesting of any equity option
held by me and Company will pay COBRA health insurance premiums for
me and my family for eighteen (18) months after my employment
ends.
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b. Discharge for Cause . The
Company may terminate my employment at any time if it believes in
good faith that it has Cause to terminate me. “ Cause
” shall include, but not be limited to:
i. my refusal to follow the
Company’s lawful directions or my material failure to perform
my
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agreed upon duties (other than by
reason of physical or mental illness, injury, or condition), in
either case, after I have been given notice of my default and a
reasonable opportunity to cure my default;
ii. my material failure to comply
with Company policies;
iii. my engaging in conduct that is
or may be unlawful or disreputable, to the possible detriment of
the Company and its subsidiaries and affiliates, and their
predecessors and successors (“ Group ”), or my
own reputation;
iv. my seeking, exploring, or
accepting a full time position with another business enterprise or
venture without the Company’s written consent at any time
more than 90 days before the Expiration Date; or
v. my engaging in activities on
behalf of an enterprise which competes or plans to compete with the
Company or any of its subsidiaries or affiliates.
c. Termination for Disability
. Except as prohibited by applicable law, the Company may terminate
my employment on account of Disability, or may transfer me to
inactive employment status, which shall have the same effect under
this Agreement as a termination for Disability. “
Disability ” means a physical or mental illness,
injury, or condition that prevents me from performing my duties, as
determined under Company policies relating to disability applicable
to me and other similarly situated employees.
d. Discharge Other Than for Cause
or Disability . The Company may terminate my employment at any
time for any reason, and without advance notice. If I
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am terminated by the Company other
than for Cause under Section 5(b) or for Disability under
Section 5(c), I will only receive the special benefits
provided for a Discharge other than for Cause under
Section 5(a) if I sign a general release form furnished to me
by the Company (which may include any provision customary in formal
settlement agreements and general releases, including such things
as my release of the Company and all conceivably related persons or
entities (“affiliates”) from all known and unknown
claims, my covenant never in the future to pursue any released
claim, my promise never to seek employment with the Company or any
affiliate in the future, my promise not to solicit current or
former customers, employees, suppliers or, to the fullest extent
lawful, engage in business activities that compete with the Company
or any affiliate, or disclose or use any of their proprietary or
trade secret information) within 60 days after my employment ends
and I do not thereafter properly revoke the release.
e. Resignation . I promise
not to resign my employment before the Expiration Date without
giving the Company at least 30 days advance written notice. If I
resign, the Company may accept my resignation effective on the date
set forth in my notice or any earlier date.
f. Death . If I die while
employed under this Agreement, the payments required by
Section 5(a) in the event of my death shall be
made.
g. Change of Control.
“Change of Control” as used herein occurs (i) if
one or more persons or entities acting in concert acquire stock in
the Company that constitutes, in the aggregate, more than 50
percent of
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the total fair market value or
voting power of the stock of the Company, and such persons or
entities did not own more than 50 percent before such acquisition,
(ii) if there is a reorganization, merger or consolidation of
the Company with one or more entities and thereafter, shares of the
surviving entity are less than fifty percent (50%) owned by
the Company or Company’s shareholders as of the date of the
execution of this Agreement, or (iii) if there is a transfer
of substantially all of the property of the Company to another
entity neither directly nor indirectly controlled by the
Company’s present shareholders. (For purposes of this
provision, “controlled” means ownership of more than
fifty percent (50%) of the voting stock.)
h. Amounts Owed to the
Company . Any amounts payable to me under this section shall
first be applied to repay any amounts I owe the Company.
6. Confidentiality . I
acknowledge that as an integral part of the Company’s
business, the Company has developed, and will develop, at a
considerable investment of time and expense, marketing and business
plans and strategies, procedures, methods of operation and
marketing, financial data, lists of actual and potential customers
and suppliers, and independent sales representatives and related
data, technical procedures, engineering and product specifications,
plans for development and exp