Contract
Exhibit 10.01
/s/ J. Xxxxxx Xxxxx III /s/ J. Xxxxxxx Xxxxxxx
This
Separation Agreement and Release (“Agreement”)
is made and entered into as of October 14, 2009 by and between Orion Marine
Group, Inc., a Delaware corporation (“Orion Marine” and together with its
subsidiaries and affiliates, the “Company”) and J. Xxxxxx Xxxxx III (“Executive”). The
Company and Executive are collectively referred to in this Agreement as the
“Parties.”
RECITALS
Whereas,
Executive was an employee of Orion Administrative Services, Inc. and served as
Vice President & General Counsel of Orion Administrative Service’s parent
company, Orion Marine, and Executive separated from employment with the Company
effective on August 28, 2009;
Whereas,
Executive’s Employment Agreement with Orion Marine Group, Inc., dated August 13,
2007 (“Employment
Agreement”), by its terms expired as of August 13, 2009, and the Parties
do not intend to renew the Employment Agreement for an additional term of
employment;
Whereas,
in consideration for Executive’s releases and obligations in this Agreement, the
Company agrees to provide Executive with the Separation Benefits (defined in
Agreement paragraph 1) and to release Executive as specified in this
Agreement;
Whereas,
Executive resigns all Key Employee (as defined in the expired Employment
Agreement), employment, officer, and representative positions with the Company
as of August 28, 2009 (“Separation Date”);
Whereas,
this Agreement shall become effective on the eighth (8th) day following the
Parties’ execution of this Agreement (“Effective
Date”), which will trigger the Company’s payment of the Separation
Benefits as provided in this Agreement paragraph 1; and
Whereas,
the Parties agree that this Agreement’s Recitals are true and
accurate.
AGREEMENT
TERMS
Therefore,
in consideration of the promises, mutual agreements, and Recitals set forth in
this Agreement, the receipt and sufficiency of which the Parties acknowledge,
the Company and Executive agree as follows:
1. Separation
Benefits. In consideration for Executive’s promises and
covenants in this Agreement, the Company agrees to pay and provide Executive the
following Separation Benefits (collectively referred to in this Agreement as the
“Separation Benefits”) within ten (10) days after this Agreement’s revocation
period (defined in Agreement paragraph 9) has expired:
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Xxxxxxxxx
Payment. The Company will pay to Executive a lump sum
payment of $116,437.62 (which is equal to 26 weeks multiplied by his
current salary of $4,478.37 per week), minus lawful
withholdings. Except for the Severance Payment provided for in
this Agreement, Executive understands and agrees that he is not entitled
to any additional severance compensation from the Company under any
Company policy, program, plan, or
agreement.
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b.
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Stock. The
Company will provide for the vesting of 417 stock options currently held
by Executive, which are currently scheduled to vest on August 31,
2009. Additionally, the Company will accelerate and vest 3783
shares of stock from Executive’s October 7, 2008 stock option grant (as
specified in the Company’s October 20, 2008 Notice of Grant of Stock
Option) that would have vested as of October 7, 20098.* Executive
acknowledges and agrees that all unvested restricted shares or stock
options (other than the stock options that were vested in accordance with
this paragraph 1.b.) shall be forfeited and surrendered on the later of
this Agreement’s Effective Date or the Separation Date (including
specifically any performance vesting shares or any other awards granted
under the Company’s Long Term Incentive Plan (“LTIP”) or any predecessor
or successor plan thereto). Executive shall have up to 90 days after the
Lock-Up Period (as that term is defined in the August 7, 2009 Lock-Up
Letter Agreement executed by Executive) expires to exercise any of his
vested stock options. Executive also acknowledges that any amendments to
his existing stock options and restricted stock awards may have
significant tax consequences including causing the stock options to be
treated as “non-qualified” stock options for tax
purposes.
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c.
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COBRA Coverage
Payment. The Company will pay or reimburse 50% of the
cost of Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”)
continuation coverage premiums under the Company’s group health plan (or
any successor plan) for up to six (6) months beginning on the Effective
Date of this Agreement, provided that Executive as of the day before the
Separation Date was a current participant in the Company’s group health
plan, he timely elects, or has elected, COBRA continuation coverage for
himself and/or his dependents (provided they were covered under the
Company's group health plan immediately prior to the Separation Date), and
his COBRA continuation coverage under the Company’s group health plan does
not terminate for any reason (other than Executive’s failure to timely pay
his portion of the COBRA
coverage premium). Executive understands and agrees
that any premium payments made by the Company pursuant to this paragraph
1.c. shall be included in his taxable income to the extent required by
applicable law, and that he shall be solely responsible for payment of any
premiums for COBRA continuation coverage for any period after the six (6)
month period described in this paragraph
1.c.
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*initialed JCA/MS
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d.
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401K
Contributions. Executive understands that his
eligibility to continue to make contributions to the Company’s 401(k) plan
will end on the Effective Date. Executive also understands that
a separate notice regarding 401(k) information will be mailed to his home
address.
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e. Participation in
Other Company Benefit
Plans. Except for the provisions in this Agreement
paragraphs 1. a., b., c., d., and e., Executive understands that his
participation in any Company incentive, savings, profit sharing and
retirement plans, practices, policies or programs will end as of the
Effective Date; provided, however, that the terms of this Agreement
paragraph 1.e. and no other Agreement provisions shall effect (i) a
termination or suspension of (a) the Indemnity Agreement between Executive
and the Company dated November 24, 2008, (b) his vested stock options or
stock options to become vested (as described in Agreement paragraph 1.b),
or (c) Directors and Officers liability insurance maintained by the
Company and during the coverage period(s) applicable to Executive’s
employment with the Company (collectively, the “Surviving Agreements”); or
(ii) any waiver, release or relinquishment of any rights, interests, or
remedies under the Surviving
Agreements.
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f. Separation Benefits as
Additional Consideration. Executive understands and
agrees that the Separation Benefits to be paid under this Agreement are in
addition to anything of value to which Executive is already entitled and
he agrees to enter into this Agreement as a condition precedent to
receiving the Separation Benefits. Executive may obtain any
insurance, benefits, or stock exercise forms by contacting the Company’s
Vice President of Human Resources, Xx. Xxxxxx
Xxxxxxxx.
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2. Executive’s Release. Except for
the rights created in this Agreement and Executive’s rights, interests, and
remedies under the Surviving Agreements, in consideration for the Company’s
payment of the Separation Benefits and other valuable consideration specified in
this Agreement, Executive, on behalf of himself, his heirs, executors, insurers,
successors and assigns and all persons or entities acting by, through, under or
in concert with any of them, irrevocably and unconditionally releases, waives,
and forever discharges the Company and all of its parents, divisions,
subsidiaries, affiliates, and related companies, and their present and former
agents, employees, officers, directors, attorneys, stockholders, plan
fiduciaries, successors and assigns (collectively, “Released
Parties”), from any and all claims, demands, actions, causes of action,
costs, attorney fees, and all liability whatsoever, whether known or unknown,
fixed or contingent, which Executive has, had, or may ever have against the
Released Parties relating to or arising out of Executive’s employment or
separation from employment with the Company, from the beginning of time and up
to and including the date Executive executes this Agreement. This
Agreement includes, without limitation, (i) law or equity claims;
(ii) contract (express or implied) or tort claims; (iii) claims for wrongful
discharge, retaliatory discharge, whistle blowing, libel, slander, defamation,
unpaid compensation, intentional infliction of emotional distress, fraud, public
policy contract or tort, and implied covenant of good faith and fair dealing;
(iv) claims arising under any federal, state, or local laws of any jurisdiction
that prohibit age, sex, race, national origin, color, disability, religion,
veteran, military status, sexual orientation, or any other form of
discrimination, harassment, or retaliation (including, without limitation, the
Age Discrimination in Employment Act, the Older Workers Benefit Protection Act,
the Americans with Disabilities Act (“ADA”), the ADA Amendments Act of 2008,
Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991, the Civil
Rights Acts of 1866 and/or 1871, 42 U.S.C. Section 1981, the Rehabilitation Act,
the Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act, the Employee Polygraph
Protection Act, the Uniformed Services Employment and Reemployment Rights Act of
1994, the Xxxxx Xxxxxxxxx Fair Pay Act, the
Texas Commission on Human Rights Act (and any similarly named statute in the
Texas Labor Code), or any other federal, state, or local laws of any
jurisdiction), (v) claims arising under the Employee Retirement Income Security
Act, and (vi) any other statutory or common law claims related to Executive’s
employment with the Company or the separation of Executive’s employment with the
Company. Additionally, this Agreement paragraph 2 does not affect or
release Executive’s entitlement to the funds contained in Executive’s 401K Plan
with the Company.
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3. Executive Indemnification Regarding
Tax Liability. Executive further agrees to defend, indemnify,
and hold the Released Parties harmless from any and all liability which may be
asserted against the Released Parties by any federal, state, or local taxing
authority for the payment of Social Security, income tax, or any other tax
claimed to be due by and from Executive in respect of the Company’s payment of
the Separation Benefits described in this Agreement; provided that in no event
shall Executive have any such obligation in connection with the Company’s
determination of amounts to be withheld from the Separation Benefits or the
Company’s reporting of the amounts withheld.
4. Company’s Release. Except
for rights created under this Agreement and any claims arising out of
Executive’s breach of this Agreement, and in exchange for the consideration in
this Agreement, the Company unconditionally and irrevocably waives, settles,
releases and forever discharges Executive, his heirs executors, insurers,
successors and assigns and all persons acting by, through, under or in concert
with any of them (collectively, “Executive
Released Parties”) from and with respect to,
any and all claims, demands, damages, actions, causes of action, costs,
expenses, losses, attorneys’ fees, and all other liability, know or unknown,
fixed or contingent, which the Company has, had, or may ever have against
the Executive Released Parties relating to or arising out of
Executive’s employment or separation from employment with the
Company. The Company’s release includes, without limitation, any and
all claims, demands, actions, and causes of action, whether in law or equity,
fixed or contingent, arising in tort, contract, or otherwise, arising out of or
relating to Executive’s acts or failure to act, or relating to his employment
with the Company, his separation from employment with the Company, or the
termination of his employment with the Company. .
5. No Admission of
Liability. Executive and the Company understand and agree that
this Agreement shall not in any way be construed as an admission by the Released
Parties or by the Executive Released Parties of any unlawful or wrongful acts or
omissions whatsoever against, as the case may be, Executive or any other person
or against the Company or any other entity or person. The Released Parties and
the Executive Released Parties specifically disclaim any liability to or
wrongful acts or omissions against, as the case may be, Executive or any other
person or against the Company or any other entity or person. The
Company and Executive each specifically denies that it or he committed any
unlawful, tortious, or improper acts or omissions against the other at any
time.
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6. Confidentiality of Agreement and
Company Information. Executive agrees to keep this Agreement,
its terms, and the amount of the Separation Benefits in this Agreement
completely confidential. Executive agrees and understands that he is
prohibited from disclosing any terms of this Agreement to anyone, except that
Executive may disclose the terms of this Agreement and the amount of the
Separation Benefits to his attorney, spouse, accountant, or as otherwise
required by law. Executive also agrees to continue to abide by the
Company’s confidentiality policies and any agreement regarding confidentiality
that Executive has with the Company. Executive further acknowledges
and agrees that during his Company employment, the Company disclosed to
Executive the Company’s unique concepts, sales presentations, marketing
programs, marketing strategies, business practices, methods of operation,
pricing information, cost information, trademarks, licenses, technical
information, proprietary information, computer software programs, tapes and
disks concerning its operations systems, customer lists, customer names, account
information, customer leads, documents identifying past, present and future
customers, customer profile and preference data, electronically stored
information, hiring and training methods, investment policies, financial and
other confidential, proprietary and/or trade secret information concerning its
operations and expansion plans (“Confidential
Information”). The Confidential Information includes, without
limitation, information about the Company’s business, proprietary, and technical
information not known to others that could have economic value to others if
improperly disclosed. Confidential Information also means any
information the Company discloses to Executive, either directly or indirectly,
in writing, orally or by inspection of tangible objects, including, without
limitation, information and technical data contained in the Company’s manuals,
booklets, publications and materials, equipment of every kind and character, as
well as documents, prototypes, samples, prospects, inventions, product ideas,
know-how, processes, plans (including without limitation, marketing plans and
strategies), specifications, designs, techniques, technology, formulas,
software, improvements, forecasts, and research. Confidential Information,
however, shall not include any information which is now part of the public
domain.
Executive agrees that he will not at
any time disclose to anyone, including, without limitation, any person, firm,
corporation, or other entity, or publish, or use for any purpose, any
Confidential Information, except as the Company directs and
authorizes. Executive agrees that he shall take all reasonable
measures to protect the secrecy of and avoid disclosure and unauthorized use of
the Confidential Information and agrees to promptly notify the Company in the
event of any unauthorized use or disclosure of the Confidential
Information. Additionally, if Executive is required to disclose any
Confidential Information by a court order, subpoena, or government directive,
Executive shall immediately notify the Company no later than two (2) days after
Executive receives notice of the court order, subpoena or government directive
to allow the Company to seek a protective order.
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7. Agreement to Return Company
Property/Documents. Executive understands and agrees that his
last day of active work in any Company office or on any Company owned or leased
property was August 28, 2009. Accordingly, Executive agrees
that: (i) he will not take with him, copy, alter, destroy, or delete
any files, documents, electronically stored information, or other materials,
whether or not embodying or recording any Confidential Information, including
copies, without obtaining in advance the written consent of an
authorized Company representative; and (ii) Executive will promptly
return to the Company all Confidential Information, documents, files, records
and tapes, whether written in hardcopy form or electronically stored, that have
been in his possession or control regarding the Company, and Executive
will not use or disclose such materials in any way or in any format, including
written information in any form, information stored by electronic means, and all
copies of these materials. Executive further agrees that on August
28, 2009, Executive will return to the Company immediately all Company
property, including, without limitation, keys, equipment, computer(s) and
computer equipment, devices, Company cellular phones and any personal digital
assistants (including Executive’s Blackberry device), Company credit cards,
data, electronically stored information, lists, correspondence, notes, memos,
reports, or other writings prepared by the Company or Executive on behalf of the
Company.
8. Time to Consider
Release. Executive acknowledges that the Company is advising
him in writing to consult an attorney before executing this Agreement, and
Executive further acknowledges that he has been given a period of twenty-one
(21) calendar days within which to review and consider the provisions of this
Agreement. Executive understands that if he does not sign this
Agreement before the twenty-one (21) calendar day period expires, the Company
will withdraw this Agreement offer automatically.
9. Revocation
Period. Executive understands and acknowledges that he has
seven (7) calendar days following the execution of this Agreement to revoke his
acceptance of this Agreement. Accordingly, this Agreement will not
become effective or enforceable, and the Separation Benefits will not become
payable, until after the seven (7) day period to revoke this Agreement has
expired without Executive’s revocation. If Executive does not revoke
the Agreement within the revocation period, the Company will provide Executive
the Separation Benefits as listed in Agreement paragraph 1. Executive
further agrees that if he revokes this Agreement, he will give notice of his
revocation to Xxxxxx Xxxxxxxx, the Company’s Human Resources
Director.
10. Remedies. In the
event of a breach or a threatened breach by Executive of any provision in this
Agreement, the Company shall be entitled to a temporary restraining order and
injunctive relief restraining Executive from the commission of any breach, and
to recover the Company’s attorneys’ fees, costs and expenses related to the
breach or threatened breach. Nothing contained in this Agreement
shall be construed as prohibiting the Company from pursuing any other remedies
available to it for any breach or threatened breach, including, without
limitation, the recovery of money damages, equitable relief, attorneys’ fees,
and costs. Further,
if Executive breaches this Agreement, the Company may demand that Executive
return the Severance Payment (as defined in Agreement paragraph 1.a.) within
five (5) days after the Company sends a written demand to Executive to return
the Severance Payment.
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11. No
Re-employment. Executive agrees that he relinquishes any right
to re-employment with the Released Parties. Executive further agrees
that he will not seek, apply for, accept, or otherwise pursue employment with
the Released Parties. Executive acknowledges that if he re-applies
for or seeks employment with the Company, the Company’s refusal to hire
Executive based on this provision will provide a complete defense to any claims
arising from the attempt for employment.
12. Non-Disparagement.
a. By
Executive. Except as may be required by a subpoena, final
court order or final state or federal administrative directive, Executive agrees
not to, directly or indirectly, disclose, communicate, or publish any
disparaging, negative, harmful, or disapproving information, written
communications, oral communications, electronic or magnetic communications,
writings, oral or written statements, comments, opinions, facts, or remarks, of
any kind or nature whatsoever (collectively, “Disparaging
Information”), concerning or related to any of the Released
Parties. Executive understands and acknowledges that this
non-disparagement clause prevents him from disclosing, communicating, or
publishing, directly or indirectly, any Disparaging Information concerning or
related to the Released Parties including, without limitation, information
regarding the Released Parties’ businesses, customers or clients, proprietary or
technical information, documents, operations, inventions, trade secrets, product
ideas, technical information, know-how, processes, plans (including without
limitation, marketing plans and strategies), specifications, designs, methods of
operation, techniques, technology, formulas, loan operations, software,
improvements, internal or external audits, internal controls, or any financial,
marketing or accounting information of any nature whatsoever. Further, Executive
acknowledges that in executing this Agreement, Executive has knowingly,
voluntarily, and intelligently waived any free speech, free association, free
press or First Amendment to the United States Constitution (including, without
limitation, any counterpart or similar provision or right under the Texas
Constitution) rights to disclose, communicate, or publish Disparaging
Information concerning or related to the Released Parties. Executive
also understands and agrees that he has had a reasonable period of time to
consider this non-disparagement clause, to review the non-disparagement clause
with his attorney, and to consent to this clause and its terms knowingly and
voluntarily.
b. By Specified Company Executives and
the Board of Directors. Except as may be required by a
subpoena, final court order or final state or federal administrative directive,
the Company agrees that it will instruct Xxxxxxx Xxxxxxx, Chief Executive
Officer, and Xxxx Xxxxxxxx, Chief Financial Officer, and the members of the
Company’s Board of Directors, not to state or publish any disparaging, negative,
harmful, or disapproving information or communications, written or oral
(collectively, “Disparaging
Information”),
concerning Executive, his activities while employed with the Company, or his
separation from the Company.
13. Knowing and Voluntary
Agreement. Executive understands it is his choice whether to
enter into this Agreement and that his decision to do so is voluntary and is
made knowingly.
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14. Entire Agreement, Amendment, Binding
Effect. Except for the Surviving
Agreements and the rights, interests, and remedies therein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter in this Agreement, and supersedes all previous agreements, promises, and
representations, including, without limitation, any terms, conditions or
agreements set forth in the Employment Agreement by and between Orion Marine
Group, Inc. and Executive dated August 13, 2007. No oral statements
or prior written material not specifically incorporated in this Agreement shall
be of any force and effect, and no changes in or additions to this Agreement
shall be recognized, unless incorporated in this Agreement by written amendment,
such amendment to become effective on the date stipulated in
it. Executive acknowledges and represents that in executing this
Agreement, he did not rely, and has not relied, on any communications, promises,
statements, inducements, or representation(s), oral or written, by the Company,
except as expressly contained in this Agreement. Any amendment to
this Agreement must be signed by all parties to this Agreement. This
Agreement will be binding on and inure to the benefit of the parties hereto and
their respective successors, heirs, legal representatives, and permitted assigns
(if any). Except for the Surviving Agreements and the rights and
remedies therein, this Agreement supersedes any prior agreements between
Executive and the Company concerning the subject matter of this
Agreement.
15. Binding
Agreement. Executive agrees that this Agreement shall be
binding on him and his heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of his heirs,
administrators, representatives, executors, successors and
assigns. The Company agrees that this Agreement shall be binding on
the Company and shall inure to the benefit of the Company.
16. Choice of Law. This
Agreement shall, in all respects, be interpreted, enforced, and governed under
the laws of the State of Texas. The Company and Executive agree that
the language 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. Severability. The
Company and Executive agree that should a court declare or determine that any
provision of this Agreement is illegal or invalid, the validity of the remaining
parts, terms or provisions of this Agreement will not be affected and any
illegal or invalid part, term, or provision, will not be deemed to be a part of
this Agreement.
18. Counterparts. The
Company and Executive agree that this Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall be deemed one and the same instrument.
Please
read carefully as this document includes a release of claims.
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As evidenced by Executive’s signature
below, Executive certifies that he has read the above Agreement and agrees to
its terms.
/s/ J. Xxxxxx Xxxxx III /s/ J. Xxxxxxx Xxxxxxx
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J.
Xxxxxx Xxxxx III [Signature]
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J.
Xxxxxxx Xxxxxxx for Orion Marine Group, Inc.
[Signature]
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J.
Xxxxxx Xxxxx III [Printed Name]
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J.
Xxxxxxx Xxxxxxx for Orion Marine Group, Inc. [Printed
Name]
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Date 10/13/2009 Date
10/13/2009
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