THIRD AMENDMENT TO THE EMPLOYMENT AGREEMENT BETWEEN FOSTER WHEELER INC. AND RAKESH JINDAL
Exhibit 10.5
This THIRD AMENDMENT (this “Amendment”) to the Employment Agreement between XXXXXX XXXXXXX
INC., a Delaware corporation (the “Company”), and XXXXXX X. XXXXXX (the “Executive”), dated as of
April 27, 2009 (the “Agreement”), is made and entered into as of this May 25, 2010 (the “Effective
Date”).
WHEREAS, the Company and the Executive entered into a First Amendment to the Agreement,
effective January 18, 2010 (“First Amendment”) and a letter amendment, effective April 1, 2010
(“Second Amendment”); and
WHEREAS, the Company and the Executive have agreed to further amend the Agreement as set forth
herein; and
WHEREAS, pursuant to the Agreement, an amendment to the Agreement may be made pursuant to the
written consent of the Company and the Executive.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and in further consideration of the following mutual promises, covenants and
undertakings, the parties agree by executing this Amendment to amend the Agreement, including its
First Amendment and Second Amendment, as follows:
| 1. | The Agreement is amended by replacing the Addendum set forth in the First Amendment with the following addendum inserted at the end of the Agreement: |
ADDENDUM
This Addendum sets forth the terms and conditions applicable during the Executive’s
performance of duties (as described in Agreement Section 1.1) for the period beginning as of the
Effective Date and ending on the date the Agreement is terminated pursuant to Agreement Section 4
(the “Term”). Unless otherwise provided in this Addendum, all Agreement terms (including the
Executive’s entitlement to the compensation and benefits described in Agreement Section 3, as
adjusted for merit increases since the date of the Agreement) shall remain in full force and effect
during the Term.
A-1. Location.
During the Term, the Executive shall perform his duties (as described in Agreement Section 1)
primarily at the Company’s offices in Geneva, Switzerland, subject to reasonable travel
requirements consistent with the nature of the Executive’s duties from time to time on behalf of
the Company.
A-2. Long-Term Incentive Awards.
Upon the Executive’s termination of employment (other than for Cause), all stock options
outstanding as of the Executive’s Termination Date shall remain exercisable for the shorter of one
(1)
year following the Executive’s termination of employment or the remainder of the term of the
stock option(s).
A-3. Stay Bonus Award.
The Company shall pay the Executive a cash stay bonus under the following terms.
(a) New Addendum to Agreement. The Company shall pay the Executive a stay
bonus equal to 175% of the Executive’s Base Salary then in effect within thirty (30) days of the
Effective Date. Payment of such bonus shall be made in a single lump sum.
(b) Termination without Cause; For Good Reason; Death; Disability.
Notwithstanding anything else in this Addendum, the stay bonus described in paragraph (a) shall be
payable in full, and shall not be subject to forfeiture, irrespective of the actual duration of the
Term, if the Executive’s employment is terminated by the Company without Cause, by the Executive
for Good Reason (not including the event of the assignment to Switzerland), or due to the
Executive’s death or Disability. In such case the stay bonus shall be paid in a lump sum within
thirty (30) days of termination of employment.
(c) Termination Relating to Catastrophic Personal Event. The stay bonus
described in paragraph (a) shall be payable in full, and shall not be subject to forfeiture, if the
Executive remains in active employment through June 30, 2011 and terminates employment during the
Term due to an unforeseen personal and catastrophic event affecting the Executive or a family
member, which event requires the Executive to relocate to the U.S., and the Executive provides the
Company with thirty (30) days advance written notice.
(d) Forfeiture of Stay Bonus. The Executive shall forfeit the stay bonus
(and must repay the stay bonus if the stay bonus has been paid) if (i) the Executive does not
remain in active employment through June 30, 2011, (ii) the Executive (A) prior to June 30, 2011,
provides the Company with less than twelve (12) months advance written notice of termination of
employment (less than thirty (30) days notice for termination due to a catastrophic event described
in paragraph (c)) or (B) on or after June 30, 2011 and prior to June 30, 2012, provides the Company
with an advance written notice of termination of employment such that the resulting termination
date is prior to June 30, 2012, is less than thirty (30) days after the notice for termination due
to a catastrophic event described in paragraph (c), or is less than ninety (90) days after the
notice for termination that is not due to a catastrophic event described in paragraph (c), or (iii)
prior to June 30, 2011, the Executive’s employment is terminated for Cause. Upon any such
forfeiture, the Executive must repay any paid stay bonus in full within thirty (30) days of
termination of employment.
A-4. Miscelleneous Terms
(a) Agreement Terms. Unless otherwise provided in this Addendum, all Agreement terms
(including the Executive’s entitlement to the compensation and benefits described in Agreement
Section 3, as adjusted for merit increases since the date of the Agreement) shall remain in full
force and effect during the Term.
(b) Supplemental Long-Term Incentive Award. The Executive shall receive a
long-term incentive award of cash and restricted stock units on a date designated by the Xxxxxx
Xxxxxxx AG Board of Directors (“Board”) or its Compensation Committee (“Compensation Committee”)
during the first open trading window for Section 16 officers including or subsequent to (as the
Board or Compensation Committee shall in its discretion choose) the Effective Date (such date
selected by the Board or
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Compensation Committee, known as the “Grant Date”) with an economic value
as of the Grant Date equal to USD 606,000. Such award shall be made twenty percent (20%)
in cash and eighty percent (80%) in restricted stock units. The cash award shall fully vest on the
Grant Date; the restricted stock units shall vest ratably on the first, second, and third
anniversaries of a date selected by the Committee or its designee within the open trading
window that includes the Grant Date and fully upon the Executive’s Involuntary Termination or
Resignation for Good Reason (as defined in the Omnibus Incentive Plan, but, for the avoidance of
doubt, not including the event of the assignment to Switzerland). The cash award shall be paid in
one lump sum within 30 days after the Grant Date; restricted stock units that vest shall be settled
by issuance of shares as provided in the grant agreements described above, but in no event later
than March 15 of the year following the year in which the restricted stock units vest. For
purposes of this Section, the number of restricted stock units to be granted to the Executive shall
be consistent with the methodology used for valuing restricted stock unit awards granted to
employees which has been approved and adopted by the Compensation Committee. Both the cash and the
restricted stock units will be granted under the Company’s Omnibus Incentive Plan and governed by
separate agreements entered into between the Executive and the Company or one of its affiliates,
and in the event of any inconsistency between such separate agreements and the terms of the
Agreement (including, but not limited to its Section 4 and this Amendment), the Agreement shall
govern and control. For avoidance of doubt, nothing in the preceding sentence shall be construed
to limit the application of any provision of such separate agreements that expressly refers to and
incorporates a provision of this Agreement.
(c) Assignment Benefits. During the Term and so long as assigned to
Switzerland, the Executive shall be entitled to the following benefits (“Assignment Benefits”); all
the benefits provided for in this Addendum are inclusive of a Representative Allowance of CHF
100,000 and are in addition to the perquisities and other benefits provided for in the Agreement:
(i) Relocation Assistance: The following relocation assistance shall be
provided:
(1) The Company will assist in obtaining the proper work permits
and/or visas necessary for the provision of services in Switzerland and reimburse
the Executive for any work permit/visa, passport and immigration expenses, including
expenses for dependents of the Executive relocating or intending to relocate to
Switzerland;
(2) Home sale assistance, including the Company’s payment of
realtor’s fees, closing costs and any loss on the sale of the Executive’s principal
residence (basis for home includes major home improvements);
(3) Reimbursement for two (2) house hunting trips of up to six (6)
days each, to include reasonable lodging, transportation and meals;
(4) The cost of the shipment of household goods;
(5) The cost of pet relocation, including transportation and kennel
fees related to the move; and
(6) The loss on sale of automobiles or lease termination, including
any losses based on blue book/fair market value, costs, and penalties.
(ii) Settling-in Allowance: A settling-in allowance of CHF 30,000 shall be
paid within thirty (30) days of the date the Effective Date.
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(iii) Assignment Allowance: Prior to the earlier of the date upon which the
Executive’s immediate family relocates to Switzerland or June 30, 2011 (“First Period”), the
Company shall pay the Executive a monthly allowance of CHF 23,619 and after such date
(“Second Period”), the Company shall pay to the Executive a monthly allowance of CHF 22,303,
consisting of the following amounts for each period:
| Allowance | First Period | Second Period | ||||||
(1) Cost-of-living allowance: |
CHF 5,121 | CHF 4,439 | ||||||
(2) Loss of spousal income
(payable once Executive’s spouse has
permanently relocated to Switzerland;
payable for a maximum of 5 years |
CHF 1,256 | CHF 1,256 | ||||||
(3) Housing: |
CHF 13,800 | CHF 13,800 | ||||||
(4) Transportation: |
CHF 3,042 | CHF 2,208 | ||||||
(5) Utilities: |
CHF 400 | CHF 600 | ||||||
TOTAL |
CHF 23,619 | CHF 22,303 | ||||||
Such allowances shall be payable in advance in Swiss Francs according to the Company’s payroll
practices. The Company shall also provide for reasonable advances to the Executive for the
purpose of obtaining housing and satisfying other relocation expenses.
(iv) Personal Air Travel and Home Leave: Until the earlier of the date upon
which the Executive’s immediate family relocates to Switzerland or June 30, 2011, (A) the
Company shall provide reimbursement of one (1) business-class round-trip ticket per month for
personal travel between Switzerland and the U.S, (B) each month, the Executive may use the
business-class round trip ticket to instead fly one (1) family member from the U.S. to
Switzerland, and (C) once per quarter, in lieu of the Executive’s trip to the U.S., the
Company shall reimburse the cost of business-class round-trip tickets for the Executive’s
family to travel from the U.S. to Switzerland. After the earlier of the dates set forth
above, (X) the Company shall reimburse the Executive for one (1) trip per twelve (12) months
per authorized dependent and for the Executive, (Y) expenses eligible for reimbursement
include a business class airline ticket and local ground expenses to the original point of
origin, and (Z) one (1) day of travel shall be permitted each way as additional vacation.
(v) Vacation and Holidays: The Executive’s paid time off shall be consistent
with that currently provided. Swiss holidays shall be established by the Company.
(vi) Continued Medical Coverage. To the extent U.S. medical coverage is not
available in Switzerland, the Company shall pay for the cost of securing substantially
similar coverage in Switzerland for the Executive and the Executive’s family. Eligible
dependents of the Executive shall continue to maintain medical coverage irrespective of their
relocation to Switzerland.
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(vii) Tax Equalization. Under tax equalization, the Executive’s obligation
for income taxes shall not exceed the amount of income tax calculated each year on Base
Salary, short-term annual pay and long-term incentive pay applying the U.S. tax rules without
taking into consideration any foreign tax credit. Such amount will be deducted from the
Executive’s paycheck. Should additional income taxes arise in the U.S. or Switzerland as a
result of the assignment, the Company shall pay the additional tax. The Executive may
choose, as an alternative to the U.S. tax equalization program, to be personally responsible
for the Swiss income tax on the Executive’s Base Salary, short-term incentive pay and
long-term incentive pay. In addition to the tax equalization on the compensation above, the
Executive will be reimbursed for any wealth tax due in Switzerland as a result of the
assignment.
(viii) Tax Preparation Services: The Company shall retain the services of a
tax consultant to prepare the Executive’s U.S. and Switzerland tax returns, as required,
while the Executive is on assignment to Switzerland.
(ix) Tax Gross-Up. To the extent that the provision of Assignment Benefits
results in taxable income to the Executive, the Company shall pay the Executive an amount to
satisfy the Executive’s Swiss and U.S. income tax obligation. Such payment shall be
grossed-up for taxes and made as soon as practicable after the tax liability arises but in no
event later than the end of the year following the year in which the tax is due.
(x) Seconded Arrangement: The Executive shall be seconded to Xxxxxx Xxxxxxx
Management AG in Switzerland and shall continue to remain an employee of the Company. The
Executive remain eligible to participate in the Company’s employee benefit plans as set forth
in Section 3 of the Agreement and to receive U.S. social security benefits.
(xi) Legal Services. The Company shall reimburse the Executive for legal fees
incurred in relation to an attorney’s review of this Amendment, up to a maximum of USD 5,000.
(xii) Financial/Estate Planning. The Company shall reimburse the Executive
for one-time costs relating to the Executive’s financial and estate planning.
(xiii) Compassionate Leave: The Executive shall be provided with up to
five (5) day’s paid compassionate leave in relation to the death of an immediate family
member. The Company shall reimburse the Executive and his dependents for the cost of
round-trip business airline tickets to attend funeral services.
(xiv) U.S. Vehicle Allowance. For the avoidance of doubt, the
Executive shall remain entitled to participate in the Company’s automobile allowance program
as from time to time in effect for those at the Executive’s level as set forth at Agreement
Section 3.4.
(xv) Education. The Company will pay the actual cost of the Executive’s
daughter’s registration and tuition fees and any required deposit for, and transportation to
and from, secondary school (i.e., what is generally known as “high school” in the U.S. or the
Swiss equivalent thereof). The Company has the option of either paying such costs directly
or reimbursing the Executive for same. If the Company opts to reimburse the Executive, it
shall do so by way of lump sum payment promptly after the expenses are incurred, but in no
event earlier than January 1 or later than December 31 of the taxable year to which they
relate.
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(d) Termination of Employment. If the Executive’s employment is terminated
for any reason, the terms of Agreement Section 4 (including the amendments to same set forth in
this Agreement) shall control; provided, that the relocation to Switzerland shall not constitute an
event giving rise to a termination of employment for Good Reason. If the termination is for any
reason other than for Cause or a resignation by the Executive without Good Reason, the Company
shall pay the reasonable costs associated with the repatriation to the U.S.
A-5. Maximum Length of Assignment
For the avoidance of doubt, the maximum period of time during which the Executive may be
considered to be “on assignment” and, therefore, eligible for assignment-related compensation and
Assignment Benefits is five (5) years from the start of the Executive’s assignment to Switzerland,
i.e., no later than January 17, 2015.
A-6. Application of Section 409A to Benefits-in-Kind, Expense Reimbursements and
Allowances
(a) Benefits-in-Kind; Expense Reimbursements. Benefits-in-kind and any
provision for reimbursement of expenses during the Executive’s assignment shall be subject to the
following rules, as required to comply with Code Section 409A:
(i) The amount of in-kind benefits provided or expenses eligible for
reimbursement in one calendar year may not affect in-kind benefits or reimbursements to be
provided in any other calendar year.
(ii) Expenses will be reimbursed as soon as administratively possible, but in
no event shall expenses be reimbursed later than December 31st of the year
following the year in which the expense was incurred.
(iii) The right to an in-kind benefit or reimbursement may not be subject to
liquidation or exchange for another benefit.
(b) Allowances. Allowances generally shall be paid monthly. In no event
shall the payment of any allowance be made later than March 15th of the year following
the year in which the Executive is entitled to payment.
* * *
| 2. | Agreement Sections 4.1.3 and 4.1.4 are hereby revised by replacing “thirty (30) days” each time it appears in those Sections with “ninety (90) days”. | |
| 3. | Agreement Section 4.1.5 is hereby revised by adding the following new sentence to the end of Section 4.1.5: |
In the event that the termination of the Executive’s employment does not
constitute a “separation from service” as defined in Section 409A of the
Internal Revenue Code of 1986, including all regulations and other guidance
issued pursuant thereto (the “Code”), the Executive’s rights to the payments
and benefits described in this Section 4 shall vest upon the Termination
Date, but no payment to the Executive that is subject to Section 409A shall
be paid until the Executive incurs a separation from service (or as set
forth at Section 13.1, until six months after such date if the Executive is
a specified employee), and any
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amounts that would otherwise have been paid
prior to such date shall be paid instead as soon as practicable after such
date.
| 4. | Agreement Section 4.2.2 is hereby revised to read in its entirety as follows: |
4.2.2. Payments Upon Involuntary Termination by the Company
Without Cause or Voluntary Termination of the Executive with Good
Reason. Following a termination by the Company without Cause or
by the Executive for Good Reason, the Company shall pay or provide
to the Executive in addition to the payments and benefits in Section
4.2.1 above:
(i) Base Salary at the rate in effect on the Termination Date
and continuing for eighteen (18) months thereafter, payable at the
same intervals at which active employees at the Executive’s level
are paid;
(ii) Two (2) payments, the first in an amount equal to one
hundred percent (100%) of the Executive’s annual cash incentive
bonus payment at target, and the second in an amount equal to fifty
percent (50%) of the Executive’s annual cash incentive bonus payment
at target, the first of such payments being payable in the first
year following the Termination Date at the same time that the
Company pays annual cash incentive bonuses to its active employees
pursuant to its then current Bonus Program (or, if no payment to its
active employees is made in the relevant year, at the time that such
bonuses normally would be scheduled to be paid) and the second being
payable at the same time in the second year following the
Termination Date;
(iii) eighteen (18) months of continued health and welfare
benefit plan coverage following the Termination Date (excluding any
additional vacation accrual or sick leave) at active employee
levels, if and to the extent the Executive was participating in any
such plans on the Termination Date, provided that the Executive
remits monthly premiums for the full cost of any health benefits;
(iv) executive level career transition assistance services by a
firm selected by the Executive and approved by the Company in an
amount not to exceed $8,000.00 in the aggregate (which amount
includes any applicable gross-up for any taxes due for such
payment); and
(v) a cash payment each month during the eighteen (18) month
period following the Termination Date equal to the full monthly
premium for the health benefits described in clause (iii) above
minus the active employee cost of such coverage, such full monthly
premium to be grossed-up by the Company for any applicable income
taxes.
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Notwithstanding any other provision of this Agreement, in no event,
shall the Executive be entitled to receive the pay and benefits that
the Company shall provide the Executive pursuant to this Section
4.2.2 unless the Executive provides the Company an enforceable
waiver and release agreement in a form that the Company normally
requires. Such release shall be furnished to the Executive for the
Executive’s review not later than 7 business days following the
Termination Date, and shall be executed and returned to the Company
within 21 days of receipt (or within 45 days of receipt if the
Executive’s separation is part of a group). Provided the Executive
does not timely revoke the waiver and release agreement, pay and
benefits pursuant to this Section 4.2.2 shall commence on the 60th
day following the Executive’s Termination Date. Any amounts that
otherwise would have been paid to the Executive pursuant to this
Section 4.2.2 before the 60th day shall be paid to the Executive,
without interest, on the 60th day.
| 5. | Agreement Section 4.3.2(i) is hereby revised by deleting its subsection (II) and to read in its entirety as follows: |
Accrued Obligations. The Executive’s Annual Base Salary through the
Termination Date and any accrued vacation pay, in each case, to the extent
not theretofore paid (the sum of the amounts described in this Subsection
4.3.2(i), the “Accrued Obligations”), all in a lump sum in cash within 30
days following the Termination Date; and
| 6. | Agreement Section 5.2 (Company Protections) is hereby revised by replacing the term “twelve (12) months” with the term “nine (9) months”. | |
| 7. | Agreement Section 12 is hereby revised by adding the following new Section 12.2: |
12.2 To the maximum extent permitted by law and consistent with the
substantive terms of this Agreement, this Agreement shall be interpreted and
administered in such a manner that the payments to the Executive are either
exempt from, or comply with all requirements of, Section 409A of the Code.
| 8. | Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to the Agreement as
of the date first written above.
| XXXXXX XXXXXXX INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Chairman, President & Chief Executive Officer | |||
| /s/ Xxxxxx X. Xxxxxx | ||||
| XXXXXX X. XXXXXX | ||||
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