Exhibit 10.1
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement"), effective this 28th day of
August, 2006 ("Effective Date"), is entered into by and between Xxxxx Xxxxxx
("Executive"), and InfraSource Services Inc. (the "Company").
WHEREAS, Executive desires to provide the Company and certain of its
subsidiaries with his services, and the Company desires to employ Executive on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment. Subject to the terms and conditions of this Agreement,
the Company agrees to employ Executive, and Executive agrees to be employed by
the Company beginning on August 28, 2006.
2. Position. During the period of his employment hereunder, Executive
agrees to serve the Company, and the Company shall employ Executive, as
Executive Vice President - Electric (IFS) or in such other executive capacity or
capacities, at the same level of responsibility, as may be determined from time
to time by the President and Chief Executive Officer (the "CEO") of InfraSource
Services, Inc.
3. At-Will Employment and Duties.
(a) Executive and the Company agree that Executive's employment
hereunder will be at-will (as defined under applicable law), and may be
terminated at any time, for any reason, at the option of either party, subject
to the provisions of Section 5 below.
(b) Duties. During the period of his employment hereunder and
except for illness, reasonable vacation periods, and reasonable leaves of
absence, Executive shall in good faith (i) devote all of his business time,
attention, skill and efforts to the business and affairs of the Company and its
affiliated companies and (ii) report to the CEO.
4. Salary; Incentive Bonus; Reimbursement of Expenses; Other Benefits.
(a) Salary. During the period of employment under this Agreement,
Executive shall be paid a salary at the rate of two hundred fifty thousand
dollars ($250,000) per year ("Base Salary"). The Base Salary shall be reviewed
annually, in the first quarter of the new year, and may be adjusted as
determined by the President and CEO.
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(b) Annual Incentive Compensation Program. Executive shall be
entitled to participate in the Annual Incentive Compensation Program ("AICP")
pursuant to the terms and conditions of such program as it may exist from time
to time. Executive's target bonus opportunity level shall be eighty (80%)
percent of Base Salary. This bonus will be based principally upon the financial
performance of the Company and the Electric Business Unit and achievement of
individual performance goals established in conjunction with the President and
CEO. For Plan year 2006, Executive will be guaranteed an incentive payment in
the amount of One Hundred Thousand dollars ($100,000) payable in accordance with
the AICP.
(c) Equity/Stock Options. Executive will be eligible for fifty
thousand (50,000) option shares upon the commencement of employment, subject to
the Board of Directors approval and in accordance with the InfraSource Long Term
Incentive Plan (LTIP) (the "Plan") and form of stock option agreement as
InfraSource in its sole discretion may amend from time to time the "Plan". Such
stock option award will provide for 50% vesting in the event of a change of
control in which the employment of the Executive is terminated. This is more
fully described in the Stock Option Grant form.
(d) Sign-On Payment. Executive shall receive a sign-on payment in
the amount of One Hundred Thousand dollars ($100,000), less applicable
withholdings, in the first pay period after commencement of employment. The full
payment shall be repayable to the Company if the Executive voluntarily
terminates his employment prior to the first anniversary of employment.
(e) Reimbursement of Expenses. The Company shall pay or reimburse
Executive, in accordance with its normal policies and practices, for all
reasonable travel and other expenses incurred by Executive in performing his
obligations under this Agreement.
(f) Other Benefits. During the period of employment under this
Agreement, Executive shall be entitled to participate in all other benefits of
employment generally available to other executives of the Company and those
benefits for which such persons are or shall become eligible, when and as he
becomes eligible therefore (including but not limited to any deferred
compensation plan and 401(k) plan).
5. Termination of Employment.
(a) Termination by the Company for Cause. The Company may
terminate Executive's employment under this Agreement for "Cause" (as
hereinafter defined) or otherwise at will at any time immediately upon written
notice, or where applicable, upon Executive's failure to cure the breach as
provided below, whereupon the Company shall have no further obligation hereunder
to Executive, except for payment of amounts of Base Salary accrued through the
termination date and the reimbursement of job-related expenses. For purposes of
this
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agreement, "Cause" shall mean: (i) the continued willful failure by Executive to
substantially perform his duties with the Company, (ii) the willful engaging by
Executive in gross misconduct materially and demonstrably injurious to the
Company, such as, but not limited to theft, embezzlement, and violation of the
Company's code of Business Conduct and Ethics, or (iii) Executive's material
breach of Sections 3, 6 or 7 of this Agreement; provided, that with respect to
any breach that is curable by Executive, as determined by the Board in good
faith, the Company has provided Executive written notice of the material breach
and Executive has not cured such breach, as determined by the CEO of InfraSource
Services, Inc. in good faith, within fifteen (15) days following the date the
Company provides such notice.
(b) Termination as a Result of Executive's Death or Disability.
If Executive's employment hereunder is terminated by reason of Executive's
Disability (as hereinafter defined) or death, Executive's (or Executive's
estate's) right to benefits under this Agreement will terminate as of the date
of such termination and all of the Company's obligations hereunder shall
immediately cease and terminate, except that Executive or Executive's estate, as
the case may be, will be entitled to receive accrued Base Salary and benefits
through the date of termination, the reimbursement of any job-related expenses,
as well as any pro-rated share (based on the period of actual employment) of any
bonus under the AICP that Executive would have been entitled to had he worked
the full year during which the termination occurred, provided that where
Executive's bonus is subject to individual criteria the allocation shall be made
by Executive's immediate supervisor taking into account historical bonus
amounts, such payment to be made in full within forty-five (45) days following
the determination of the amount thereof (but in no case later than ninety (90)
days after the close of the termination year) and in accordance with the
Company's normal payroll practices and procedures (and no part shall be
contributed to a retirement or deferred compensation mechanism). Executive or
Executive's estate will also have the ability to exercise stock options in which
Executive had vested as of the date of Executive's death or the date of
Executive's termination due to disability. As used herein, Executive's
Disability shall have the meaning set forth in any long-term disability plan in
which Executive participates, and in the absence thereof shall mean that, due to
physical or mental illness, Executive shall have failed to perform his duties on
a full-time basis hereunder for one hundred eighty (180) consecutive days and
shall not have returned to the performance of her duties hereunder on a
full-time basis before the end of such period, and if Disability has occurred
termination shall occur within thirty (30) days after written notice of
termination is given (which notice may be given before the end of the one
hundred eighty (180) day period described above so as to cause termination of
employment to occur as early as the last day of such period).
(c) Termination by the Company other than as a Result of
Executive's Death or Disability or other than for Cause. If Executive's
employment is terminated by the Company for any reason other than Executive's
death or Disability or other than for Cause, Executive shall be reimbursed for
any job-related expenses and, subject to Executive entering into and not
revoking a release of claims
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in favor of the Company and abiding by the provisions set forth in Section 6,
Executive shall be entitled to the following benefits:
(i) Cash severance payments equal in the aggregate to twelve
(12) months of Executive's annual Base Salary at the time of termination,
payable in twelve (12) equal monthly installments beginning at the end of the
first full month following termination of employment.
(d) Termination by Executive. Executive may terminate his
employment with the Company upon thirty (30) days written notice to the Company,
after which the Company shall have no further obligation hereunder to Executive,
except for payment of amounts of Base Salary and other benefits accrued through
the termination date, and the reimbursement of job-related expenses.
6. Confidential Information; Non Competition; Non-Solicitation.
(a) Confidential Information. Executive acknowledges that in his
employment hereunder he will occupy a position of trust and confidence.
Executive shall not, except in the course of the good faith performance of his
duties hereunder or as required by applicable law, without limitation in time or
until such information shall have become public other than by Executive's
unauthorized disclosure, disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company, its subsidiaries
and affiliates. "Confidential Information" shall mean information about the
Company, its subsidiaries or affiliates, or their respective clients or
customers that was learned by Executive in the course of his employment by the
Company, its subsidiaries or affiliates, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information and client and
customer lists and all papers, resumes, and records (including computer records)
of the documents containing such Confidential Information, but excludes
information (i) which is in the public domain through no unauthorized act or
omission of Executive; or (ii) which becomes available to Executive on a
non-confidential basis from a source other than the Company or its affiliates
without breach of such source's confidentiality or non-disclosure obligations to
the Company or any affiliate. Executive agrees to deliver or return to the
Company, at the Company's request at any time or upon termination or expiration
of her employment or as soon thereafter as possible, (A) all documents, computer
tapes and disks, records, lists, data, drawings, prints, notes and written
information (and all copies thereof) furnished by the Company, its subsidiaries
or affiliates, or prepared by Executive during the term of his employment by the
Company, its subsidiaries or affiliates, and (B) all notebooks and other data
relating to research or experiments or other work conducted by Executive in the
scope of employment.
(b) Non-Competition. During the period of Executive's employment
by the Company and for a period of twenty four (24) months after his termination
of employment, Executive shall not, directly or indirectly, without the prior
written consent of the Company, provide consultative services or otherwise
provide services to (whether as an employee or a consultant, with or without
pay) or,
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own, manage, operate, join, control, participate in, or be connected with (as a
stockholder, partner, or otherwise), any business, individual, partner, firm,
corporation, or other entity that is a competitor of the Company at the time of
termination or, if following a Change in Control, is a competitor to the
business of the Company as conducted immediately preceding the occurrence of a
Change in Control, provided, however, that the "beneficial ownership" by
Executive, either individually or as a member of a "group," as such terms are
used in Rule 13d of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of not more than five
percent (5%) of the voting stock of any publicly held corporation shall not
alone constitute a violation of this Agreement.
(c) Non-Solicitation of Customers and Suppliers. During the
period of Executive's employment by the Company and, if Executive's employment
is terminated under Sections 5 above (and provided the Company fulfills its
obligations there under) until the twenty fourth (24th) month of the date of
Executive's employment termination Executive shall not, directly or indirectly,
influence or attempt to influence customers or suppliers of the Company to
divert any of their business to any Competitor of the Company.
(d) Non-Solicitation of Employees. Executive recognizes that he
possesses and will possess Confidential Information about other employees of the
Company, its subsidiaries or affiliates, relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with customers of the Company, its subsidiaries or affiliates.
Executive recognizes that the information he possesses and will possess about
these other employees is not generally known, is of substantial value to the
Company, its subsidiaries or affiliates in developing their business and in
securing and retaining customers, and has been and will be acquired by because
of his business position with the Company, its subsidiaries or affiliates.
Executive agrees that, during the period of Executive's employment by the
Company and for a period of twenty four (24) thereafter, he will not, directly
or indirectly, solicit, recruit, induce, or encourage or attempt to solicit,
recruit, induce, or encourage any employee of the Company, its subsidiaries or
affiliates (i) for the purpose of being employed by him or by any Competitor of
the Company on whose behalf he is acting as an agent, representative or employee
or (ii) to terminate his or her employment or any other relationship with the
Company, its subsidiaries, or affiliates. Executive also agrees that Executive
will not convey any such Confidential Information or trade secrets about other
employees of the Company, its subsidiaries, or affiliates to any other person.
(e) Injunctive Relief. It is expressly agreed that the Company
will or would suffer irreparable injury if Executive were to violate any of the
provisions of this Section 6 and that the Company would by reason of such
violation be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of such
injunctive relief in such a court prohibiting Executive from so violating
Section 6 of this Agreement.
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(f) Survival of Provisions. The obligations contained in this
Section 6 shall survive the termination or expiration of Executive's employment
with the Company and shall be fully enforceable thereafter.
7. No Conflict. Executive represents and warrants that Executive is
not subject to any agreement, instrument, order, judgment or decree of any kind,
or any other restrictive agreement of any character, which would prevent
Executive from entering into this Agreement or would conflict with the
performance of Executive's duties pursuant to this Agreement. Executive
represents and warrants that Executive will not engage in any activity, which
would conflict with the performance of Executive's duties pursuant to this
Agreement.
8. Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by courier service or first-class mail,
certified or registered with return receipt requested, and shall be deemed to
have been duly given on the date receipt is recorded by the appropriate delivery
service, or may be delivered personally by hand to the respective persons named
below:
If to Company: InfraSource Services Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to Executive:
Xxxxx Xxxxxx
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
9. Dispute Resolution; Attorneys' Fees. The Company and Executive
agree that any dispute arising as to the parties' rights and obligations
hereunder, other than with respect to Section 6, shall, at the election and upon
written demand of either party, be submitted to arbitration before a single
arbitrator in Delaware County, PA under the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association.
10. Assignment; Successors. This Agreement is personal in its nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder;
provided that, in the event of the merger, consolidation, transfer, or sale of
all or substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof, be
binding upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder.
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11. Governing Law. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in
accordance with the laws of the Commonwealth of Pennsylvania.
12. Withholding. The Company shall make such deductions and withhold
such amounts from each payment made to Executive hereunder as may be required
from time to time by law, governmental regulation or order.
13. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
14. Waiver; Modification. Failure to insist upon strict compliance
with any of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
15. Severability. If for any reason any term or provision containing a
restriction set forth herein is held to be for a length of time which is
unreasonable or in other way is construed to be too broad or to any extent
invalid, such term or provision shall not be determined to be null, void and of
no effect, but to the extent the same is or would be valid or enforceable under
applicable law, any court shall construe and reform this Agreement to provide
for a restriction having the maximum time period and other provisions as shall
be valid and enforceable under applicable law. If, notwithstanding the previous
sentence, any term or provision of this Agreement is held to be invalid or
unenforceable, all other valid terms and provisions hereof shall remain in full
force and effect, and all of the terms and provisions of this Agreement shall be
deemed to be severable in nature.
16. Entire Agreement; Effect on Certain Prior Agreements. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any prior agreements between them with
respect to the subject matter hereof, including all prior employment, retention,
severance or related agreements between Executive and the Company or any
successor, predecessor or affiliate. Without limiting the generality of the
foregoing, the obligations under this Agreement with respect to any termination
of employment of Executive, for whatever reason, supersede any severance or
related obligations of the Company or any of its successors, predecessors or
affiliates in any plan of the Company or any of its successors, predecessors or
affiliates or any agreement between Executive and the Company or any of its
successors, predecessors or affiliates.
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17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Executive has hereunto signed this
Agreement, as of the date first above written.
INFRASOURCE, INC.
/s/ Xxxxx X. Xxxxxx
---------------------------------
By: Xxxxx X. Xxxxxx
IFS: President & Chief Executive
Officer
EXECUTIVE
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
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