EMPLOYMENT AGREEMENT
Exhibit 10.52
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the 7th day of
February, 2011 (the “Effective Date”), between Willbros United States Holdings, Inc., a Delaware
corporation (the “Corporation”), and J. Xxxxxx Xxxxx (the “Executive”).
RECITALS
WHEREAS, the Corporation desires to employ the Executive as its Executive Vice President -
Sales and Marketing and the Executive desires to accept such employment, under the terms and
conditions of this Agreement; and
WHEREAS, this Employment Agreement is contingent on the Executive’s execution of a
Participation Agreement under the Willbros Group, Inc. 2010 Management Severance Plan for
Executives (“Executive MSP”);
NOW THEREFORE, in consideration of the mutual covenants and representations contained herein,
and the mutual benefits derived herefrom, the parties agree as follows:
ARTICLE I
FULL-TIME EMPLOYMENT OF EXECUTIVE
FULL-TIME EMPLOYMENT OF EXECUTIVE
1.1 DUTIES AND STATUS.
(a) The Corporation hereby engages the Executive as a full-time executive employee for the
period specified in Section 3.1 below (the “Employment Period”), and the Executive accepts such
employment, on the terms and conditions set forth in this Agreement.
(b) The Executive shall serve as Executive Vice President — Sales and Marketing of the
Corporation and Willbros Group, Inc., a Delaware corporation (“WGI”). He shall report to the
President and Chief Executive Officer of the Corporation and WGI, but to no other person or body.
(c) In addition to the Executive’s performance of his day-to-day executive and operating
responsibilities referred to in Section 1.1(b) above, the Executive shall work diligently and
closely with the President and Chief Executive Officer during the Employment Period to further
develop, refine, and implement WGI’s strategic plan consistent with the annual budget(s) and other
objectives approved by the Board of Directors of WGI (the “Board”).
(d) Throughout the Employment Period, the Executive shall devote substantially all his full
time and efforts to the business of the Corporation and WGI and will not engage in consulting work
or any trade or business for his own account or for or on behalf
of any other person, firm or corporation which competes, conflicts or interferes with the
performance of his duties under this Agreement in any way.
(e) Except for reasonable business travel, the Executive shall be required to perform the
services and duties provided for in this Section 1.1 only at the principal offices of the
Corporation in the Houston, Texas, metropolitan area. Throughout the Employment Period, the
Executive shall be entitled to four (4) weeks of vacation annually (accrued thirteen and
thirty-four hundredths (13.34) hours per month) and leave for illness or temporary disability in
accordance with the Corporation’s policies for its senior executive officers.
1.2 COMPENSATION AND GENERAL BENEFITS. In consideration of the Executive foregoing
other business opportunities and agreeing with the Corporation and WGI to perform the services
described in this Agreement, the Executive shall be compensated as follows:
(a) During the Employment Period, the Corporation shall pay the Executive a base salary of
three hundred fifty-five thousand dollars ($355,000) per year. The Executive will be eligible for
increases in such base salary, based on merit and commensurate with increases made in the base
salary of other executive officers. Such salary shall be payable in periodic equal installments
pursuant to the Corporation’s executive payroll system.
(b) Throughout the Employment Period, the Executive shall be entitled to participate in such
retirement, bonus, disability, life, sickness, accident, dental, medical and health benefits and
other employee benefit programs, plans and arrangements of the Corporation which are in effect
immediately prior to the date of this Agreement, and in any successor or additional employee
benefit programs, plans or arrangements which may be established by the Corporation, as and to the
extent any such employee benefit programs, plans and arrangements are or may from time to time be
in effect. Nothing herein precludes the Corporation from exercising its reserved rights to amend,
modify, or terminate any employee benefit program, plan, or arrangement, without prior notice.
1.3 BONUS. The Executive shall receive a sign-on bonus in the amount of one hundred
thousand dollars ($100,000), payable fifty percent (50%) within thirty (30) days of the Effective
Date and fifty percent (50%) on the first (1st) pay period after the sixth
(6th) month from the Effective Date. In addition, the Executive will participate in the
Management Incentive Compensation Program. The annual bonus potential for each year will be 100%
of Executive’s base salary. For the 2011 calendar year, the Executive shall be guaranteed a
minimum bonus amount under such Program of no less than one hundred thousand dollar ($100,000),
payable in a lump sum on March 31, 2012, provided that the Executive has not voluntarily incurred
a Separation from Service or incurred a Separation from Service involuntarily for Cause on or
before such date. The Board, in considering whether to pay any additional discretionary bonus to
the Executive for a year shall consider the financial performance of the Corporation, the
individual performance of the Executive and the bonuses, if any, awarded to other executive
officers of the Corporation, as well as any other matters the Board deems it appropriate to
consider in making its determinations.
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1.4 RESTRICTED STOCK AWARDS. In consideration of the Executive foregoing other
business opportunities and agreeing to accept employment with the Corporation to perform the
services described in this Agreement, the Executive is hereby awarded and will be awarded the
number of shares of common stock, par value $.05 per share of the Corporation (“restricted stock
shares”) on the dates indicated below, subject to (i) all of the terms and provisions of the
Corporation’s 2010 Stock and Incentive Compensation Plan and (ii) the Executive’s execution and
delivery of Restricted Stock Award Agreements substantially in the form of Exhibit A attached
hereto.
| Date of Award | Number of Restricted Stock Shares | |||
Effective Date |
35,000 | |||
March, 2011 |
20,000 | |||
March, 2012 |
20,000 | |||
The Executive’s rights with respect to each restricted stock award shall vest in full on the third
anniversary date of the Effective Date.
ARTICLE II
COMPETITION AND CONFIDENTIAL INFORMATION
COMPETITION AND CONFIDENTIAL INFORMATION
2.1 COMPETITION AND CONFIDENTIAL INFORMATION. All of the provisions of Article VI,
Restrictive Covenants, of the Executive MSP are hereby incorporated by reference and made a part of
this Agreement. Any term with initial capitalization in this Agreement which is not defined in this
Agreement shall have the meaning assigned under the Executive MSP, the definitions of which are
hereby incorporated by reference and made a part of this Agreement. Specifically, the defined
terms under Article VI and the terms Change in Control, Separation from Service, Cause, Good
Reason, and Disability have the meaning assigned under the Executive MSP. This Section 2.1 shall
survive the termination of this Agreement.
ARTICLE III
EMPLOYMENT PERIOD
EMPLOYMENT PERIOD
3.1 DURATION. The Employment Period shall commence on the Effective Date and shall
terminate on the day prior to the third anniversary of the Effective Date.
3.2 EARLY TERMINATION. This Agreement shall be terminated prior to the end of the
Employment Period for the following reasons or upon the occurrence of the following events:
(a) Involuntary Separation from Service of the Executive by action of the Corporation for
Cause or other than for Cause;
(b) Voluntary Separation from Service of the Executive for Good Reason or other than for Good
Reason;
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(c) Death of the Executive; or
(d) Disability of the Executive.
3.3 COMPENSATION AND/OR BENEFITS FOLLOWING EARLY TERMINATION.
(a) Except as provided in Section 3.4 of this Agreement or the Executive MSP, in the event of
an early termination of this Agreement because of (i) the Executive’s voluntary Separation from
Service, (ii) Executive’s involuntary Separation from Service by action of the Corporation for
Cause, (iii) death or (iv) Disability, the Executive will receive his base salary only through the
date of such Separation from Service. In addition, the Executive and his dependents and
beneficiaries will receive such benefits as they may be entitled under the employee benefit
programs, plans and arrangements of the Corporation.
(b) In the event of an early termination of this Agreement due to a Separation from Service
other than under Section 3.3(a) or Section 3.4, the provisions of the Executive MSP shall govern;
provided that Executive is a participant in the Executive MSP on the date of such Separation from
Service.
(c) Each payment to the Executive of an amount following his termination shall constitute a
“separate payment” for purposes of Section 409A of the Code.
(d) All amounts or benefits payable to the Executive hereunder following his termination that
are payable more than two and one-half months and less than six months following such termination
shall be paid on the day that is six months and one day following the date of his termination and
all other amounts or benefits payable to the Executive hereunder following his termination shall be
paid on the regular payroll payment dates of the Corporation for payment of such amounts or
benefits.
3.4 SPECIAL SEPARATION PAYMENT.
(a) Notwithstanding anything in this Agreement to the contrary, if the Executive (i) serves
until the last day of the three-year term of this Agreement and (ii) voluntarily incurs a
Separation from Service other than for Good Reason within ninety (90) days after the end of such
three (3) year term, then Executive will receive twelve (12) months base salary, at the then
current base rate, in a lump sum, payable on the first Corporation payroll date following the
sixtieth (60th) day after such voluntary Separation from Service occurs, provided that Executive
has executed and returned a separation and release agreement in form satisfactory to the
Corporation which is not revoked prior to such payment date. Notwithstanding the provisions of
Section 2.1 of this Agreement, in the event of a voluntarily Separation from Service other than for
Good Reason or an involuntary Separation from Service other than for Cause under this Section 3.4,
the non-competition provisions of Section 6.2 of the Executive MSP shall not apply.
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(b) Notwithstanding anything in this Agreement to the contrary, if prior to any event which
causes severance to be payable under Section 3.4(a) of this Agreement or the Executive MSP, the
Corporation materially decreases the Executive’s responsibility and authority, his title, or his
base compensation at any time within the Employment Period, then Executive may incur a voluntary
Separation from Service other than for Good Reason within fourteen (14) days following written
notice to the Corporation. In such event, Executive will receive (i) twelve (12) months base
salary, at the then current base rate, in a lump sum, payable on the first Corporation payroll date
following the sixtieth (60th) day after such voluntary Separation from Service occurs;
and (ii) Executive’s Restricted Stock Awards which have previously been granted under paragraph 1.4
of this Agreement shall immediately vest and become exercisable; each provided that Executive has
executed and returned a separation and release agreement in a form satisfactory to the Corporation,
which is not revoked prior to such payment date. Notwithstanding the provisions of Section 2.1 of
this Agreement, in the event of a voluntary Separation from Service or an involuntary Separation
from Service other than for Cause under this Section 3.4, the non-competition provisions of Section
6.2 of the Executive MSP shall not apply.
(c) Notwithstanding anything in this Agreement to the contrary, if prior to any event which
causes severance to be payable under Sections 3.4(a) or 3.4(b) of this Agreement, the Executive
incurs an involuntary Separation from Service prior to a Change in Control which is other than for
Cause, then (i) the Executive shall be entitled to the severance payable as provided in Section
3.1.2 of the Executive MSP, in a cash lump sum in accordance with the terms thereof, and such
payment shall be made irrespective of whether such involuntary Separation from Service other than
for Cause is in anticipation of a Change of Control; and (ii) Executive’s restricted stock awards
which have previously been granted under paragraph 1.4 of this Agreement shall immediately vest
and become exercisable; each provided that Executive has executed and returned a separation and
release agreement in a form satisfactory to the Corporation, which is not revoked prior to such
payment date. Notwithstanding the provisions of Section 2.1 of this Agreement, in the event of an
involuntarily Separation from Service other than for Cause under this Section 3.4 (c), the
non-competition provisions of Section 6.2 of the Executive MSP shall not apply.
ARTICLE IV
NOTICES
NOTICES
4.1 NOTICES. Any notices requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and if sent by registered or certified mail to the
Executive at the last address he has filed in writing with the Corporation or, in the case of the
Corporation, at its principal offices.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of the
Executive and the Corporation with respect to the subject matter hereof and supersedes
any and all prior understandings on the subjects contained herein, written or oral, and all
amendments thereto.
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5.2 MODIFICATION. Except as provided in the following two sentences, this Agreement
shall not be varied, altered, modified, canceled, changed, or in any way amended, nor any provision
hereof waived, except by mutual agreement of the parties in a written instrument executed by the
parties hereto or their legal representatives. Nothing in this Agreement shall affect the
Corporation’s and its affiliates’ rights to amend or terminate any of their employee benefit plans,
as permitted under applicable law and the respective terms of such plans. The parties agree to
further amend this Agreement in the event that an amendment is necessary or desirable to address
the requirements of Section 409A of the Code.
5.3 SEVERABILITY. In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect, provided, that if
the unenforceability of any provision is because of the breadth of its scope, the duration of such
provision or the geographical area covered thereby, the parties agree that such provision shall be
amended, as determined by the court, so as to reduce the breadth of the scope or the duration
and/or geographical area of such provision such that, in its reduced form, said provision shall
then be enforceable.
5.4 GOVERNING LAW. The provisions of this Agreement shall be construed and enforced
in accordance with the laws of the State of Texas, without regard to any otherwise applicable
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
| WILLBROS UNITED STATES HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Its: | Vice President Human Resources | |||
| EXECUTIVE |
||||
| /s/ J. Xxxxxx Xxxxx | ||||
| J. Xxxxxx Xxxxx | ||||
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Exhibit
A
WILLBROS GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
February 7, 0000
X. Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx Xxxxxx Holdings, Inc.
0000 Xxxx Xxx Xxxxxxx, XXX 0000
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxx Xxxxxx Holdings, Inc.
0000 Xxxx Xxx Xxxxxxx, XXX 0000
Xxxxxxx, XX 00000
Dear Rob:
1. Restricted Stock Award. Willbros Group, Inc., a Delaware corporation (the
“Company”), hereby grants to you an aggregate of 35,000 shares of Common Stock, par value $.05 per
share, of the Company (the “Restricted Shares”). Except to the extent that any provision of this
Restricted Stock Award Agreement (the “Award Agreement”) or the Company’s 2010 Stock and Incentive
Compensation Plan (the “Plan”) conflicts with any provision of that certain Employment Agreement
dated February 7, 2011 between Willbros United States Holdings, Inc. and you (the “Employment
Agreement”), this award is subject to your acceptance of and agreement to all of the applicable
terms, conditions, and restrictions described in the Plan, a copy of which, along with the
Prospectus for the Plan, are attached hereto, and to your acceptance of and agreement to the
further terms, conditions, and restrictions described in this Award Agreement. To the extent that
any provision of this Award Agreement conflicts with the expressly applicable terms of the Plan, it
is hereby acknowledged and agreed that those terms of the Plan shall control and, if necessary, the
applicable provisions of this Award Agreement shall be hereby deemed amended so as to carry out the
purpose and intent of the Plan. To the extent that any provision of this Award Agreement or the
Plan conflicts with any provision of the Employment Agreement, it is expressly acknowledged and
agreed that the Employment Agreement shall control and, if necessary, the applicable provisions of
the Award Agreement and, if necessary, the applicable provisions of the Award Agreement and/or the
Plan shall be hereby deemed amended so as to carry out the purpose and intent of the Employment
Agreement.
2. Issuance of Shares. The Company will cause the Restricted Shares to be issued in
your name either by book-entry registration or issuance of a stock certificate or certificates.
Until such time as the restrictions described in Section 4(b) lapse as described in Section 5, the
Company may cause an appropriate stop-transfer order to be issued and to remain in effect with
respect to the Restricted Shares. As soon as practicable following the time that the restrictions
described in Section 4(b) lapse as described in Section 5, the Company will cause that
stop-transfer order to be
removed. If any certificate or certificates are issued in your name for the Restricted Shares, the
Company shall retain the certificate(s) for the period during which the restrictions described in
Section 4(b) are in effect and may require that you execute and deliver to the Company a stock
power or stock powers in blank for the Restricted Shares. You hereby agree that the Company shall
hold the certificate(s) for the Restricted Shares and the related stock power(s) pursuant to the
terms of this Award Agreement until such time as the restrictions described in Section 4(b) lapse
as described in Section 5 or the Restricted Shares are canceled pursuant to the terms of Section
4(b).
3. Ownership of Restricted Shares. You shall be entitled to all the rights of
absolute ownership of the Restricted Shares, including the right to vote such shares and to receive
dividends therefrom if, as, and when declared by the Company’s Board of Directors, subject,
however, to the terms, conditions, and restrictions described in the Plan and in this Award
Agreement.
4. Restrictions.
(a) Your ownership of the Restricted Shares shall be subject to the restrictions set
forth in subsection (b) of this Section until such restrictions lapse pursuant to the terms
of Section 5, at which time the Restricted Shares shall no longer be subject to the
applicable restrictions.
(b) The restrictions referred to in subsection (a) of this Section are as follows:
(1) At the time of your “Termination of Employment” (as defined in Section
11(c)), other than a Termination of Employment that occurs as a result of an event
described in Section 5(b)(1) or a Termination of Employment that is described in
Section 5(b)(2), you shall forfeit the Restricted Shares to the Company and all of
your rights thereto shall terminate without any payment of consideration by the
Company. If you forfeit any Restricted Shares and your interest therein terminates
pursuant to this paragraph, such Restricted Shares shall be canceled.
(2) You may not sell, assign, transfer, pledge, hypothecate, or otherwise
dispose of the Restricted Shares.
5. Lapse of Restrictions.
(a) The restrictions described in Section 4(b) shall lapse with respect to all 35,000
of the Restricted Shares on the third anniversary of the date hereof. Following the lapse
of such restrictions with respect to any Restricted Shares, such Restricted Shares shall no
longer be subject to the restrictions described in Section 4(b).
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(b) Notwithstanding the provisions of subsection (a) of this Section 5, the
restrictions described in Section 4(b) shall lapse with respect to all the Restricted Shares
at the time of the occurrence of any of the following events:
(1) Your death or “Disability” (as defined in Section 11(b));
(2) Your Termination of Employment under the circumstances described in Section
3.4(b) or Section 3.4(c) of the Employment Agreement; or
(3) A “Change of Control” of the Company (as defined in Section 11(a), unless
the Committee determines prior to the Change of Control, in accordance with Section
14.2 of the Plan, that the restrictions shall not lapse upon the occurrence of the
Change of Control.
6. Agreement With Respect to Taxes; Share Withholding.
(a) You agree that (1) you will pay to the Company or an Affiliate, as the case may be,
or make arrangements satisfactory to the Company or such Affiliate regarding the payment of
any foreign, federal, state, or local taxes of any kind required by law to be withheld by
the Company or any of its Affiliates with respect to the Restricted Shares, and (2) the
Company or any of its Affiliates shall, to the extent permitted by law, have the right to
deduct from any payments of any kind otherwise due to you any foreign, federal, state, or
local taxes of any kind required by law to be withheld with respect to the Restricted
Shares.
(b) With respect to withholding required upon the lapse of restrictions or upon any
other taxable event arising as a result of the Restricted Shares awarded, you may elect,
subject to the approval of the Committee, to satisfy the withholding requirement, in whole
or in part, by having the Company withhold Restricted Shares having a Fair Market Value on
the date the tax is to be determined equal to the minimum statutory total tax which could be
withheld on the transaction. All such elections shall be irrevocable, made in writing,
signed by you, and shall be subject to any restrictions or limitations that such Committee,
in its sole discretion, deems appropriate.
7. Adjustment of Shares. The number of Restricted Shares subject to this Award
Agreement shall be adjusted as provided in Section 4.2 of the Plan. Any shares or other securities
received by you as a stock dividend on, or as a result of stock splits, combinations, exchanges of
shares, reorganizations, mergers, consolidations or otherwise with respect to the Restricted Shares
shall have the same terms, conditions and restrictions and bear the same legend as the Restricted
Shares.
8. Agreement With Respect to Securities Matters. You agree that you will not sell or
otherwise transfer any Restricted Shares except pursuant to an effective
registration statement under the U.S. Securities Act of 1933, as amended, or pursuant to an
applicable exemption from such registration.
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9. Restrictive Legend. You hereby acknowledge that any certificate(s) representing
the Restricted Shares will bear a conspicuous legend referring to the terms, conditions, and
restrictions described in the Plan and this Award Agreement. Any attempt to dispose of any
Restricted Shares in contravention of the terms, conditions, and restrictions described in the Plan
or this Award Agreement shall be ineffective.
10. Forfeiture and Clawback.
(a) You agree that in the event you violate the confidentiality, non-competition,
non-solicitation or non-disparagement provisions of any agreement between you and the
Company or any Affiliate, or any plan of the Company or any Affiliate in which you
participate, including any severance plan, you shall forfeit to the Company all of the
Restricted Shares for which the restrictions have not previously lapsed in accordance with
Section 5 and all of your rights thereto shall terminate without any payment of
consideration by the Company.
(b) Notwithstanding any other provision of the Plan or this Award Agreement to the
contrary, you acknowledge that any incentive-based compensation paid to you hereunder may be
subject to recovery by the Company under any clawback policy which the Company may adopt
from time to time, including without limitation any policy which the Company may be required
to adopt under Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act
and the rules and regulations of the U.S. Securities and Exchange Commission thereunder or
the requirements of any national securities exchange on which the Company’s Common Stock may
be listed. You agree to promptly return any such incentive-based compensation which the
Company determines it is required to recover from you under any such clawback policy.
11. Certain Definitions. As used in this Award Agreement, the following terms shall
have the respective meanings indicated:
(a) “Change of Control” shall have the meaning provided in the Plan, except that for
purposes of clauses (a) and (b) of such definition, “fifty percent (50%) or more” shall be
substituted for “thirty percent (30%) or more” each place it appears in clauses (a) and (b)
of such definition.
(b) “Disability” shall mean your inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death, or which has lasted or can be expected to last for a continuous
period of not less than 12 months.
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(c) “Termination of Employment” shall mean the termination of your full-time employment
with the Company or any of its Affiliates for any reason other than your death, or
Disability.
12. Designation of Beneficiary. Your beneficiary for receipt of any payment made
under this Award Agreement in the event of your death shall be the person(s) designated as your
beneficiary(ies) for life insurance benefits under the Company’s life insurance benefits plan
unless you designate a different beneficiary on a form prescribed by the Company. If no
beneficiary is designated, upon your death, payment shall be made to your estate.
Capitalized terms used in this Award Agreement and not otherwise defined herein shall have the
respective meanings provided in the Plan.
If you accept this Award and agree to the foregoing terms and conditions, please so confirm by
signing and returning the duplicate copy of this Award Agreement enclosed for that purpose.
| WILLBROS GROUP, INC. |
||||
| By: | ||||
| Xxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
The foregoing Award is accepted by me as of the day of February 2011, and I hereby agree
to the terms, conditions, and restrictions set forth above and in the Plan.
| J. Xxxxxx Xxxxx | ||||
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