AMENDMENT NO. 1 TO AMENDED AND RESTATED MANAGEMENT AGREEMENT
Exhibit
10.8
This Amendment No. 1 (the “Amendment”) to the Amended and Restated Management
Agreement, dated December 29, 2006 (the “Agreement”), by and between InfraSource Services,
Inc., a Delaware corporation (the “Company”) and Xxxxx X. Xxxxxx (“Executive”) is
made effective as of, and contingent upon, the effective time of the merger contemplated by the
Agreement and Plan of Merger dated as of March 18, 2007 entered into by and among Quanta Services,
Inc., a Delaware corporation (“Parent”), Quanta MS Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and the Company (the
“Merger Agreement”).
WITNESSETH:
WHEREAS, the Company and Executive have previously entered into the Agreement.
WHEREAS, the Company and Executive now wish to amend the Agreement to comply with Section 409A
of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants, and conditions set
forth herein and the performance of each, it is hereby agreed as follows:
Section 1. Amendments. The Company and Executive hereby amend the Agreement
by restating Sections 4(d), 5(c)(i)(A), 5(c)(i)(B), and 5(d)(i)(B) in their entirety, and adding
the new Section 20 as follows:
4. Salary; Incentive Bonus; Reimbursement of Expenses; Other Benefits.
“(d) Reimbursement of Expenses. The Company shall pay or reimburse Executive, in
accordance with its normal policies and practices, for all reasonable travel and other
out-of-pocket expenses incurred by Executive in performing his obligations under this Agreement.
In no event shall Executive be reimbursed for expenses incurred after Executive’s separation from
service. Any such reimbursement shall be paid no later than thirty (30) days following the
Executive’s separation from service.”
5. Termination of Employment.
(c) Termination of Executive for Good Reason or by the Company other than as a Result of
Executive’s Death or Disability or other than for Cause.
(i)
“(A) Payment in cash of an amount equal to any unpaid bonus for a year prior to the year of
termination, plus the pro-rated share (based on Executive’s period of actual employment during the
year of Termination) of Executive’s target bonus under the AICP for the year in which such
termination occurs, such payment to be made on the date such awards are normally paid to Company’s
executive officers for the year in which such termination
occurs 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); provided that any
such payment is made no later than March 15 of the year following the year of termination.”
“(B) Cash severance payments equal in the aggregate to two (2) times the sum of (i)
Executive’s Base Salary at the time of termination and (ii) Executive’s target bonus under the AICP
for the year in which such termination occurs. The Base Salary component of the severance payment
shall be payable in twenty-four (24) equal monthly installments beginning at the end of the first
full month following termination of employment; provided that for purposes of Section 409A (as
defined in Section 18, below), each monthly payment shall be considered a separate payment. The
AICP component of the severance payment shall be considered a separate payment for purposes of
Section 409A and shall be payable on the date that the Company normally pays AICP bonuses to
executive officers for the year in which termination occurs. Notwithstanding the foregoing, the
amount of the cash severance payments that do not exceed two times the lesser of (i) Executive’s
annual. Base Salary plus Executive’s target bonus under the AICP for the year preceding the year in
which Executive incurs a separation from service, or (ii) the maximum dollar limits under Section
401(a)(17) of the Code for the year in which Executive incurs a separation from service
(i.e., for 2007, $225,000) shall be considered a separate payment for purposes of Section
409A of the Code (the “Safe Harbor Severance Amount”) and shall be payable in monthly installments
as provided above. The excess of the aggregate cash severance payments described in this Section
that are payable during the first six months following Executive’s separation from service over the
Safe Harbor Severance Amount shall be paid on the first business day of the seventh month following
the Executive’s separation from service. The cash severance payments that are payable following the
first six months following Executive’s separation from service shall be payable in monthly
installments as provided above.”
(d) Termination in Connection with a Change in Control Transaction.
(i)
“(B) Cash severance payments equal in the aggregate to two (2) times the sum of (i)
Executive’s Base Salary at the time of termination and (ii) Executive’s target bonus under the AICP
for the year in which such termination occurs. The cash severance payments shall be payable
following such termination on the eighth day following the date on which Executive executes the
“Release” (as defined in Section 5(c)(i), and including the Notice of Resignation attached as an
Exhibit thereto); provided that Executive has not revoked the Release during the seven-day period
following the date on which such Release was executed 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). Notwithstanding the foregoing, the amount of the cash severance payment
that does not exceed two times the lesser of (i) Executive’s annual Base Salary plus Executive’s
target bonus under the AICP for the year preceding the year in which Executive incurs a separation
from service, or (ii) the maximum dollar limits under Section 401(a)(17) of the Code for the year
in which Executive incurs a separation from service (i.e., for 2007, $225,000) shall be
considered a separate payment for purposes of Section 409A of the Code (the “Safe Harbor Severance
Amount”) and shall be payable following such termination on the eighth day following the date on
which Executive
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executes the Release; provided that Executive has not revoked the Release during the seven-day
period following the date on which such Release was executed. The excess of the aggregate cash
severance payment described in this Section over the Safe Harbor Severance Amount shall be paid on
the first business day of the seventh month following the Executive’s separation from service if
and only if Executive has executed (and not revoked) the Release.”
“(D) Continuation of Executive’s medical and health insurance benefits for a period equal to
the lesser of (i) twenty-four (24) months, and (ii) the period ending on the date Executive first
becomes entitled to medical and health insurance benefits under any plan maintained by any person
for whom Executive provides services as an employee or otherwise. Notwithstanding the foregoing,
any medical and health benefits provided to Executive following the period during which Executive
is entitled to continuation coverage under Section 4980B of the Internal Revenue Code (COBRA) shall
be subject to and paid in accordance with the requirements of Section 409A.”
“20. Termination. The Company acknowledges that Executive has given notice as
required by the Agreement of his intent to terminate employment for Good Reason (as defined in the
Agreement) upon the Effective Time (as such term is defined in the Merger Agreement). The Company
hereby agrees that Executive has Good Reason to terminate employment hereunder. The Company hereby
agrees that Executive’s termination shall be deemed to be a “Termination in Connection with a
Change in Control Transaction” in accordance with Section 5(d) of this Agreement and, subject to
Executive executing (and not revoking) the Release and abiding by the non-competition provision set
forth in Section 6(b), Executive shall receive the benefits set forth in Section 5(d).”
Section 2. Defined Terms. Except as otherwise expressly provided herein, any
capitalized term used in this Amendment that is not defined herein has the meaning ascribed to such
term in the Agreement.
Section 3. No Other Amendment. Except as otherwise expressly provided in this
Amendment, all terms, conditions and provisions of the Agreement are hereby ratified and remain in
full force and effect.
Section 4. Governing Law; Dispute Resolution. This Amendment 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 State of Delaware. The parties hereto agree that any dispute
arising as to the parties’ rights and obligations hereunder, shall, at the election and upon
written demand of either party, be submitted to arbitration before a single arbitrator in
Wilmington, Delaware under the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association.
Section 5. Entire Agreement. This Amendment, together with the Agreement,
sets forth the entire agreement and understanding of the parties relating to the subject matter
herein. No modification of or amendment to this Amendment, nor any waiver of any rights under this
Amendment, shall be effective unless given in a writing signed by the party to be charged. This
Amendment is effective as of, and contingent upon, the occurrence of the Effective Time and shall
be null and void if the Effective Time does not occur.
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Section 6. Counterparts. This Amendment may be executed originally or by
facsimile signature, in multiple counterparts, each of which shall he deemed an original and all of
which together shall constitute one instrument.
[ Signature Page Follows]
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EXECUTED as of the date set forth above.
| INFRASOURCE SERVICES, INC. |
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| By: | /s/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President and General Counsel | |||
| EXECUTIVE |
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| /s/ XXXXX X. XXXXXX | ||||
| Xxxxx X. Xxxxxx | ||||
ACKNOWLEDGED AND AGREED ON BEHALF OF QUANTA SERVICES, INC.
By: |
/s/ XXXX X. XXXXXX | |||
Name:
|
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Title:
|
Chief Executive Officer |
