Employment Agreement
Exhibit 10.1
This Employment Agreement (this “Agreement”) is dated as of May 8, 2006, and is made
by and between InfrastruX Group, Inc., a Washington corporation (“Employer”) and Xxxxxxx X.
Xxxxxx (“Employee”).
W I T N E S S E T H:
WHEREAS, Employer and Employee have entered into an Employment Agreement dated May 6, 2002
(“Prior Agreement”) pursuant to which Employer employs the Employee; and
WHEREAS, Employer and Employee each have determined that it is desirable to terminate the
Prior Agreement and enter into this Agreement pursuant to which Employer agrees to continue to
employ the Employee and Employee agrees to continue providing services to the Employer upon the
terms and conditions set forth herein; and
A G R E E M E N T S:
NOW, THEREFORE, for and in consideration of the foregoing premises and for other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Employer and
Employee hereby agree as follows:
1. EFFECTIVE DATE
This agreement shall be effective as of May 8, 2006.
2. EMPLOYMENT
Employer will continue employing Employee and Employee agrees to continue employment with
Employer as its President and Chief Executive Officer. Employee will have the authority and will
perform the duties customarily performed by the President and Chief Executive Officer of a
corporation which is similar to Employer and such other duties as may be assigned from time to time
by the Board of Directors of Employer (the “Board”), which relate to the business of Employer, its
subsidiaries, or any business ventures in which Employer or its subsidiaries may participate.
Employee shall report directly to the Board.
So long as Employee is employed by Employer, Employer shall nominate Employee to serve on the
Board.
3. ATTENTION AND EFFORT
Employee will devote his full business time, ability, attention and effort to Employer’s
business and will skillfully serve its interests during the term of this Agreement;
provided, however, that Employee may devote reasonable periods of time to (a)
engaging in personal investment activities, (b) serving on the board of directors of other
corporations, and (c) engaging in charitable or community service activities, so long as none of
the foregoing additional activities in (a) through (c) materially interfere with Employee’s duties
under this Agreement.
4. TERM
Unless otherwise terminated pursuant to Section 7, Employee’s term of employment under this
Agreement shall expire on the second anniversary of the date of this Agreement (“Expiration
Date”). This Agreement shall automatically be renewed for successive one-year terms unless the
party wishing to terminate this Agreement does so by providing written notice to the other party no
less than six (6) months prior to the Expiration Date. Upon renewal of this Agreement, the term
“Expiration Date” will refer to the end of the one-year renewal period.
5. COMPENSATION
During the term of this Agreement, Employer agrees to pay or cause to be paid to Employee, and
Employee agrees to accept in exchange for the services rendered hereunder by him, the following
compensation:
5.1 Base Salary
Employee’s compensation shall consist, in part, of an annual base salary of $400,400 (the
“Base Salary”) before all customary payroll deductions. Such annual base salary shall be
paid in substantially equal installments and at the same intervals as other officers of Employer
are paid. The Board (or a committee thereof) shall determine any increases in the amount of the
annual base salary in future years.
5.2 Bonus
Employee shall be eligible to receive, in addition to the Base Salary, an annual cash bonus in
an amount to be determined by the Board, which bonus shall be based upon the financial performance
of Employer as follows:
(a) In the event Employer achieves a level of financial performance characterized as
“in-the-money” by the Board, Employee shall receive a bonus payment equal to 20% of the Base
Salary.
(b) In the event Employer achieves a level of financial performance characterized as “target”
by the Board, Employee shall receive a bonus payment equal to 50% of the Base Salary.
(c) In the event Employer achieves a level of financial performance characterized as
“outstanding” by the Board, Employee shall receive a bonus payment equal to 80% of the Base Salary.
5.3 Equity Compensation
(a) The Board shall grant Employee a combination of restricted stock units and stock
appreciation rights equal to 1.8% of the equity of the Employer on a fully diluted basis on the
date of this Agreement under the terms of Employer’s 2006 Equity Compensation Plan. Such grants
shall be subject to the vesting and exercise provisions set forth on Exhibit A hereto.
(b) Employee, along with such other senior management team of the Employer as selected by the
Board shall be allowed to purchase in the aggregate up to four percent (4%) of the fully diluted
membership interest in InfrastruX Holdings, LLC, the immediate parent company of Employer, upon the
same valuation as TPF InfrastruX Holdings, LLC. The Board in consultation with Employee shall
determine the amount Employee and each other senior management employee will be allowed to
purchase, any minimum purchase amount and any other terms of such purchase. Such determination and
investment by Employee must be made within ninety (90) days of the date of this Agreement. As part
of such investment Employee and each other senior management employee who exercises their right to
purchase will be required to become a party to a stockholders agreement outlining the rights and
responsibilities of the Employer’s stockholders, including drag along and tag along rights in the
event of a sale of all or a portion of InfrastruX Holdings LLC’s ownership interest in Employer, as
well as rights of first refusal and call rights upon termination of employment.
6. BENEFITS
During the term of this Agreement, Employee will be entitled to participate in all benefit
programs as shall be provided or offered from time to time to senior executive-level employees of
Employer, subject to and in accordance with applicable eligibility requirements.
7. TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as follows:
7.1 By Employer
With or without Cause (as defined below), Employer may terminate the employment of Employee at
any time during the term of employment by giving written notice to Employee. The notice shall be
effective immediately if termination is for Cause and sixty (60) days later if termination is not
for Cause.
7.2 By Employee
Employee may terminate his employment at any time, for any reason, upon giving sixty (60)
days’ prior written notice.
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7.3 Automatic Termination
Employee’s employment hereunder shall terminate automatically upon the death or total
disability of Employee. The term “total disability” as used herein shall mean a long-term
disability that entitles Employee to receive long-term disability benefits under the Employer’s
long-term disability plan or policy applicable to Employee, or in the absence of such a plan or
policy, the Employee’s inability to perform the duties set forth in Section 2 hereof for a period
or periods constituting ninety (90) consecutive calendar days as a result of physical or mental
illness, loss of legal capacity or any other cause beyond Employee’s control, unless Employee is
granted a leave of absence by the Board. Termination hereunder shall be deemed to be effective (a)
at the end of the calendar month in which Employee’s death occurs or (b) immediately upon a
determination by the Board of Employee’s total disability, as defined herein.
8. TERMINATION PAYMENTS
In the event of termination of the employment of Employee, all compensation and benefits set
forth in this Agreement shall terminate except as specifically provided in this Section 8:
8.1 Termination by Employer
If Employer terminates Employee’s employment without Cause prior to the Expiration Date,
Employee shall be entitled to receive (a) termination payments equal to one year of Base Salary,
and (b) any unpaid Base Salary which has accrued for services already performed as of the date of
termination (“Termination Date”). If Employee is terminated by Employer for Cause (as defined in
Section 8.4 below), Employee shall not be entitled to receive any of the foregoing benefits, other
than those set forth in clause (b) above.
8.2 Termination by Employee
(a) If Employee resigns for Good Reason prior to the Expiration Date, Employee shall be
entitled to receive the same termination payments and unpaid annual base salary as provided for in
Section 8.1 for a termination without Cause. “Good Reason” means only any one or more of
the following: (1) material breach by Employer of this Agreement, and its failure to cure such
breach within thirty (30) days after written notice from Employee to Employer specifying in
reasonable detail the alleged breach; (2) reduction, without Employee’s consent, of Employee’s
salary or reduction or elimination of any compensation or benefit plan benefiting Employee, unless
the reduction or elimination of such benefit plan is generally applicable to all senior
executive-level employees (or employees of a successor or controlling entity of Employer) and
unless Employer reinstates the compensation or benefit within thirty (30) days after written notice
from Employee; (3) assignment to Employee, without his consent, of duties materially inconsistent
with Employee’s position, authority, duties or responsibilities as contemplated by Sections 2 and 3
hereof (or such higher level of position, authority, duties or responsibilities as are subsequently
assigned to Employee), which results in a material diminution in such position, authority, duties
or responsibilities; or (4) involuntary relocation of Employee’s Primary Work Location by more than
forty-five (45) miles from Employee’s current work location. For this purpose “Primary Work
Location” means as of any time the Employee’s primary work location in either Bellevue, Washington
or Pittsburgh, Pennsylvania as elected by the Employee in his discretion.
(b) In the case of the termination of Employee’s employment by Employee for other than Good
Reason, Employee shall not be entitled to any payments hereunder, other than those set forth in
clause (b) of Section 8.1 hereof.
8.3 Payment Schedule
All payments under this Section 8 shall be made to Employee at the same interval as payments
of salary were made to Employee immediately prior to termination.
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8.4 Cause
Wherever reference is made in this Agreement to termination being with or without Cause,
“Cause” shall mean:
(a) willful misconduct on the part of Employee that has a material adverse effect on Employer
and its subsidiaries, taken as a whole;
(b) Employee’s engaging in (i) conduct which could reasonably result in his conviction of a
felony or a crime against Employer, (ii) conduct involving fraud or moral turpitude, or (iii)
substance abuse or other misconduct which would materially compromise Employer’s reputation or
Employee’s ability to perform his duties;
(c) unreasonable refusal by Employee to perform the duties and responsibilities of his
position in any material respect, unless Employee cures the refusal within thirty (30) days after
receipt of written notice specifying in reasonable detail the duties and responsibilities not being
performed; or
(d) violation of the covenants set forth in Section 10 hereof.
No action, or failure to act, shall be considered willful or unreasonable if the Employee did
it in good faith and with the reasonable belief that his action or omission was in the best
interests of Employer.
9. RECORDS AND CONFIDENTIAL DATA
9.1 Acknowledgement.
The Employee acknowledges that, in connection with the performance of his duties for the
Employer as an employee under the terms of this Agreement, that the Employer has made and will make
available to the Employee, or the Employee will have access to, certain Confidential Information of
the Employer and its affiliates. The Employee acknowledges and agrees that any and all Confidential
Information learned or obtained by the Employee during the course of the Employee’s employment by
the Employer or otherwise (including, without limitation, information that the Employee obtained
through or in connection with the Employee’s employment with the Employer prior to the date hereof)
whether developed by the Employee alone or in conjunction with others or otherwise, shall be and is
the property of the Employer and its affiliates.
9.2 Confidentiality Obligations.
The Employee shall at all times keep all Confidential Information confidential and will not
use such Confidential Information other than in connection with the Employee’s discharge of the
Employee’s duties hereunder, and will use reasonable efforts to safeguard the Confidential
Information from unauthorized disclosure. This covenant is not intended to, and does not limit in
any way the Employee’s duties and obligations to the Employer under statutory and common law not to
disclose or make personal use of the Confidential Information or trade secrets.
9.3 Return of Confidential Information
Promptly, but no later than five (5) business days following the termination of Employee’s
employment with the Employer, the Employee will return to the Employer all written Confidential
Information in his possession which has been provided to the Employee and the Employee will destroy
all copies of any analyses, compilations, studies or other documents prepared by the Employee or
for the Employee’s use containing or reflecting any Confidential Information. The Employee shall,
upon written request of the Employer and within five (5) business days of the receipt of such
request by the Employee, deliver to the Employer a document certifying that, to the best of his
knowledge, such written Confidential Information has been returned or destroyed in accordance with
this Section 9.3.
9.4 Definition
For the purposes of this Agreement, “Confidential Information” shall mean all
confidential and proprietary information of the Employer, and any of its subsidiaries, including,
without limitation, the Employer’s contractor, customer, supplier and vendor lists and information,
marketing strategies, pricing policies or characteristics, product or product specifications,
designs, software systems, leasing costs, cost of equipment, business or business prospects, plans,
proposals, codes, marketing studies, research, reports, investigations, trade secrets or other
information of similar character. For purposes of this Agreement, Confidential Information
shall not include (i) information which is available to the public, (ii) information obtained by
the Employee from third persons other than employees or Employees of the Employer, its
subsidiaries, the Employer and the Employer’s affiliates not under agreement to maintain the
confidentiality of the same, and (iii) information which is required to be disclosed by law or
legal process.
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10. ADDITIONAL COVENANTS
10.1 Non-interference with Accounts
The Employee acknowledges and agrees that the Employer’s customers and Confidential
Information are important business assets of the Employer. Accordingly, the Employee covenants and
agrees that during Employee’s employment with the Employer, and for one (1) year following
termination of Employee’s employment (the “Post-Termination Period”), the Employee shall not
directly or indirectly, personally or on behalf of any other person, business, corporation, or
entity, sell or otherwise provide or solicit the sale or provision of any product, process or
service in the Field (as defined below) (“Product”), that competes directly with any Product of the
Employer, to any of the Employer’s customers (“Customers”). For purposes of this Agreement, (i)
Field shall mean the field of construction and other infrastructure services to electric and/or gas
utilities, and (ii) Customers shall mean any customers of the Employer to or through which the
Employer sold or provided any Products during the twelve (12) month period prior to the termination
of the Employee’s employment.
10.2 No Diversion
The Employee covenants and agrees that (i) during the Employee’s employment with the Employer,
and (ii) for the Post-Termination Period, the Employee shall not intentionally divert or attempt to
divert or take advantage of or attempt to take advantage of any actual or potential business
opportunities of the Employer in which it has current interest or expectancy (e.g., joint
ventures, other business combinations, investment opportunities, relationships with contractors,
customers, suppliers and vendors of the Employer, and other similar opportunities) which the
Employee became aware of as the result of and during the Employee’s employment with the Employer.
Notwithstanding anything to the contrary in the foregoing, this shall not limit the Employee from
investing in or serving on the board of directors of any entity that is not in the Field.
10.3 Non-competition
The Employee acknowledges and agrees that the Employer’s Confidential Information is an
important business asset of the Employer. In addition, the Employee acknowledges and agrees that he
has and will continue to play an integral role in the development and maintenance of goodwill
between the Employer and its customers. Accordingly, in order to protect the Employer’s
Confidential Information and customer goodwill, the Employee covenants and agrees that (i) during
the Employee’s employment with the Employer, and (ii) for the Post-Termination Period, the Employee
shall not knowingly directly or indirectly own an interest in, operate, join, control, advise,
consult to, work for, serve as a director or manager of, have a financial interest in, or
participate in any corporation, partnership, proprietorship, firm, association, person, or other
entity that engages (or engaged) in the Field (“Employer Activities”). This Covenant applies to
Employer Activities in any territory or jurisdiction in which the Employer is doing business or is
making an active effort to do business during the term of the Employee’s service. This Covenant
does not prohibit the Employee from (i) being employed by or acting as a consultant or otherwise
providing services to an employer in the construction industry in general, so long as he personally
does not perform any services or otherwise engage in the Field and does not use or disclose any
Confidential Information in connection therewith, or (ii) the mere passive ownership of less than
one percent (1%) of the outstanding stock of any public corporation as long as the Employee is not
otherwise in violation of this Covenant.
10.4 Non-recruitment
The Employee agrees that the Employer has invested substantial time and effort in assembling
its present workforce. Accordingly, the Employee covenants and agrees that during Employee’s
employment with the Employer and for the Post-Termination Period, the Employee shall not directly
or indirectly entice or solicit any of the Employer’s employees or contractors to leave their
employment or engagement with the Employer.
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11. ENFORCEMENT OF COVENANTS
11.1 Remedies
The Employee acknowledges that should he violate any of the covenants contained in Sections 9
and 10 above (collectively “Covenants”), it will be difficult to determine the resulting damages to
the Employer and, in addition to any other remedies the Employer may have, the Employer shall be
entitled to seek temporary injunctive relief without being required to post a bond and permanent
injunctive relief without the necessity of proving actual damage. The Employer may elect to seek
one or more of these remedies at the Employer’s sole discretion on a case by case basis. Failure to
seek any or all remedies in one case shall not restrict the Employer from seeking any remedies in
another situation. Such action by the Employer shall not constitute a waiver of any of the
Employer’s rights.
11.2 Severability and Modification of Any Unenforceable Covenant
It is the parties’ intent that each of the Covenants be read and interpreted with every
reasonable inference given to its enforceability. However, it is also the parties’ intent that if
any term, provision or condition of the Covenants is held to be invalid, void or unenforceable, the
remainder of the provisions thereof shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. Finally, it is also the parties’ intent that if it is determined
that any of the Covenants are unenforceable because of overbreadth, then the Covenants shall be
modified so as to make such Covenants reasonable and enforceable under the prevailing
circumstances.
11.3 Construction
Any reference to the Employer in this Section 11 shall include the Employer and all of its
subsidiaries.
11.4 Tolling
In the event of the breach by the Employee of any Covenant, the running of the period of
restriction shall be automatically tolled and suspended for the amount of time that the breach
continues, and shall automatically recommence when the breach is remedied so that the Employer
shall receive the benefit of the Employee’s compliance with the Covenants. This Section 11.4 shall
not apply to any period for which the Employer is awarded and receives actual monetary damages for
breach by the Employee of a Covenant with respect to which this Section 11.4 applies.
12. NOTICE AND CURE OF BREACH
Whenever a breach of this Agreement by either party is relied upon as justification for any
action taken by the other party pursuant to any provision of this Agreement, the party asserting
the breach of this Agreement shall give the other party at least (30) thirty days’ prior written
notice of the existence and the nature of such breach before taking further action hereunder and
shall give the party purportedly in breach of this Agreement the opportunity to correct such breach
during the 30-day period.
13. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically refer to this
Agreement and shall be personally delivered or sent by telecopy or other electronic facsimile
transmission or by registered or certified mail, return receipt requested, at the address set forth
below or at such other address as may hereafter be designated by notice given in compliance with
the terms hereof:
If to Employee:
|
Xxxxxxx X. Xxxxxx 000 00xx Xxxxxx Xxxx Xxxxxxx, XX 00000 |
|
If to Employer:
|
InfrastruX Group, Inc. Skyline Towers 00000 X.X. Xxxxxx Xxx., Xxxxx 0000 Xxxxxxxx, XX 00000 Attn: Chief Operating Officer |
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Copy to:
|
InfrastruX Holdings, LLC c/o Tenaska Power Fund, L.P. 0000 Xxxxx 000xx Xxxxxx, Xxxxx 000 Xxxxx, XX 00000-0000 Attention: Xxxxxx Xxxxxxxx |
If notice is mailed, such notice shall be effective upon mailing, or if notice is personally
delivered or sent by telecopy or other electronic facsimile transmission, it shall be effective
upon receipt.
14. INDEMNIFICATION
Employer shall defend, indemnify and hold Employee harmless from any and all liabilities,
obligations, claims or expenses which arise in connection with or as a result of Employee’s service
as an officer, employee or director of the Employer and/or any of its affiliates and subsidiaries
to the fullest extend allowed by law. The Employer shall assure that Employee remains covered by
the Employer’s policies of directors’ and officers’ liability insurance for six years following the
date of termination of the last position (employee, officer or director) to terminate.
15. ASSIGNMENT
This Agreement is personal to Employee and shall not be assignable by Employee. Employer may
assign its rights hereunder to (a) any corporation resulting from any merger, consolidation or
other reorganization to which Employer is a party or (b) any corporation, partnership, association
or other person to which Employer may transfer all or substantially all of the assets and business
of Employer existing at such time. 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 permitted assigns.
16. WAIVERS
No delay or failure by any party hereto in exercising, protecting or enforcing any of its
rights, titles, interests or remedies hereunder, and no course of dealing or performance with
respect thereto, shall constitute a waiver thereof. The express waiver by a party hereto of any
right, title, interest or remedy in a particular instance or circumstance shall not constitute a
waiver thereof in any other instance or circumstance. All rights and remedies shall be cumulative
and not exclusive of any other rights or remedies.
17. ARBITRATION
Any controversies or claims arising out of or relating to this Agreement shall be fully and
finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect (the “AAA Rules”), conducted by one arbitrator
either mutually agreed upon by Employer and Employee or chosen in accordance with the AAA Rules,
except that the parties thereto shall have any right to discovery as would be permitted by the
Federal Rules of Civil Procedure for a period of 90 days following the commencement of such
arbitration and the arbitrator thereof shall resolve any dispute which arises in connection with
such discovery. The prevailing party shall be entitled to costs, expenses and reasonable attorneys’
fees, and judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
18. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of this
Agreement, nor consent to any departure therefrom by either party hereto, shall in any event be
effective unless the same shall be in writing, specifically identifying this Agreement and the
provision intended to be amended, modified, waived, terminated or discharged and signed by Employer
and Employee, and each such amendment, modification, waiver, termination or discharge shall be
effective only in the specific instance and for the specific purpose for which given. No provision
of this Agreement shall be varied, contradicted or explained by any oral agreement, course of
dealing or performance or any other matter not set forth in an agreement in writing and signed by
Employer and Employee.
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19. APPLICABLE LAW
This Agreement shall in all respects, including all matters of construction, validity and
performance, be governed by, and construed and enforced in accordance with, the laws of the State
of Washington, without regard to any rules governing conflicts of laws.
20. SEVERABILTTY
If any provision of this Agreement shall be held invalid, illegal or unenforceable in any
jurisdiction, for any reason, including, without limitation, the duration of such provision, its
geographical scope or the extent of the activities prohibited or required by it, then, to the full
extent permitted by law (a) all other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the intent of the parties
hereto as nearly as may be possible, (b) such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such provision to the
extent necessary for such provision to be enforceable under applicable law.
21. HEADINGS
All headings used herein are for convenience only and shall not in any way affect the
construction of, or be taken into consideration in interpreting this Agreement.
22. COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to Section 18 hereof,
may be executed in any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
23. ENTIRE AGREEMENT
This Agreement comprises the entire agreement between the parties hereto relating to the
subject matter hereof and, supersedes, cancels and annuls all previous agreements, including the
Prior Agreement between the Employer (and/or its predecessors) and Employee, as the same may have
been amended or modified, and any right of Employee thereunder other than for compensation accrued
thereunder as of the date hereof, and supersedes, cancels and annuls all other prior written and
oral agreements between Employee and Employer or any predecessor thereto. The terms of this
Agreement are intended by the parties to be the final expression of their agreement with respect to
the retention of Employee by Employer and may not be contradicted by evidence of any prior or
contemporaneous agreement.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement on the date set
forth above.
| /s/ XXXXXXX X. XXXXXX | ||||
| XXXXXXX X. XXXXXX | ||||
| INFRASTRUX GROUP, INC. |
||||
| By: | /s/ XXXXXXX XXXXXXXX | |||
| XXXXXXX XXXXXXXX | ||||
| CHIEF OPERATIONS OFFICER | ||||
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EXHIBIT A
| • | Awards will vest 75% based on performance and 25% based on time |
| • | Time-based awards of SARS and RSUs vest at the rate of 25% per year on the 1st — 4th anniversaries of grant or upon the earlier occurrence of a liquidity event |
| • | Shares subject to vested RSUs will be delivered only upon the earlier of a liquidity event or termination of employment |
| • | Performance-based awards will vest at the liquidity event according to the following schedule, based on the return to its total equity investment: |
If liquidity event is within first year then l.25X
If liquidity event is after firs year but before second year, then 1.50X;
If liquidity event is after second year but before third year, then l.75X; and
If liquidity event is after the third year, then 2X
| • | Any awards that vest prior to a liquidity event cannot be exercised until the earlier of a liquidity event or termination of employment |
| • | Base price for SARs will equal the fair market value of a share of the new Company based on the value of the equity at the time of the transaction |
| • | SARs expire 10 years from grant |
| • | Treatment upon termination: |
| • | Death/Disability/Retirement: Forfeiture of unvested awards/ vested SARs exercisable, RSU shares deliverable | ||
| • | Without Cause: Forfeiture of unvested awards/ vested SARs exercisable/RSUs deliverable | ||
| • | Cause: Forfeiture of vested and unvested awards |
| • | Resignation: Forfeiture of unvested awards/ vested SARs exercisable/RSUs deliverable |
| • | Shares delivered upon exercise of vested awards will be subject to the following call rights: |
| • | At fair market value (as determined by Board) if termination is without cause, for good reason, death, disability or retirement |
| • | Fair market value less five % if termination is resignation not for good reason |
| • | Call right will expire 180 days after an initial public offering of the company |
| • | Put right at fair market value will apply in the event of death |
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Amendment to Employment Agreement
This Amendment to Employment Agreement (this “Amendment”) is made and entered into
effective as of December 31, 2008 (the “Amendment Date”) by and between InfrastruX Group,
Inc. (The “Employer”) and Xxxxxxx Xxxxxx (the “Employee”).
W I T N E S S E T H
WHEREAS, the Company and the Executive are parties to a certain Employment Agreement dated May
8, 2006 (the “Original Agreement”); and
WHEREAS, the Company and the Executive wish to amend the Original Agreement in a manner
intended to ensure compliance with Section 409A of the Internal Revenue Code (“Section 409A”) as
set forth in this Amendment effective as of the Amendment Date;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the
Company and the Executive hereby agree and amend the Original Agreement as follows:
1. Definitions. Capitalized terms used and not otherwise defined in this Amendment have
the meanings given such terms in the Original Agreement. The Original Agreement, as amended by
this Amendment, is referred to as the “Agreement.”
2. Amendments.
(a) To the extent applicable, it is intended that the Agreement comply with the provisions of
section 409A. The Agreement will be administered and interpreted in a manner consistent with this
intent, and any provision that would cause the Agreement to fail to satisfy Section 409A will have
no force and effect until amended to comply therewith (which amendment may be retroactive to the
extent permitted by Section 409A).
(b) Any annual bonus or incentive award payable under the Agreement shall be paid to the Executive
in the year following the year for which it is earned (or, in the case of any award payable with
respect to a performance period that includes more than one year, in the year following the last
year in the performance period).
(c) If a termination of the Executive’s employment does not result in a “separation from service”
within the meaning of Section 409A, then for purposes of determining the timing of payment,
termination shall not be considered to occur until the Executive has incurred such a separation for
service. This paragraph shall not affect the determination of the Executive’s entitlement to any
payment or benefit, but only the timing thereof.
(d) With respect to expenses eligible for reimbursement under the terms of the Agreement, (i) the
amount of such expenses eligible for reimbursement in any taxable year shall not affect the
expenses eligible for reimbursement in another taxable year and (ii) any reimbursements of such
expenses shall be made no later than the end of the calendar year following the calendar
year in which the related expenses were incurred, except, in each case, to the extent that the
right to reimbursement does not provide for a “deferral of compensation” within the meaning of
Section 409A.
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2. Amendment Governs in the Case of Conflict. In the event that any terms or provisions of
the Original Agreement conflict or are inconsistent with the terms and provisions of this
Amendment, the terms of this Amendment shall govern and control.
3. No Further Modification. Except as amended hereby, the Original Agreement remains
unmodified and in full force and effect.
4. Governing Law; Jurisdiction. This Amendment and the rights and obligations of the
parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the
United States of America and the State of Washington.
5. Counterparts. This Amendment is being executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Company and the Executive have executed this Amendment effective as of the
Amendment Date.
| COMPANY InfrastruX Group, Inc. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| EMPLOYER |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: Xxxxxxx Xxxxxx | ||||
2
