EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 31st day of December, 2004, between Willbros USA, Inc., a Delaware
corporation (the "Corporation"), and Xxxxxxx X. Xxxxxx (the "Executive").
RECITALS
WHEREAS, the Executive is currently the Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Operating Officer and the
President of the Corporation and its parent, Willbros Group, Inc., a Republic of
Panama corporation ("WGI"); and
WHEREAS, Executive has deep industry experience and possesses an
intimate knowledge of the business and affairs of the Corporation and WGI such
that his premature departure from the helm of these organizations could result
in both a difficult and challenging transitional period that would not be in the
best interests of WGI or its shareholders; and
WHEREAS, the Executive has agreed to forego other business
opportunities and to stay on with the Corporation and WGI and continue to
perform a primary hands-on leadership role through the end of 2007, with the
additional charge of working closely with the Board of Directors of WGI (the
"Board") to ensure a steady and coordinated transition of his responsibilities
as Chief Executive Officer, Chief Operating Officer and President of both the
Corporation and WGI;
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
1.1 DUTIES AND STATUS.
(a) The Corporation hereby engages the Executive as a full-time
executive employee for the three year period specified in Section 4.1 below (the
"Employment Period"), and the Executive accepts such employment, on the terms
and conditions set forth in this Agreement.
(b) The Executive shall report to the Board and to no other
person or body. Subject to the authority of the Board, during the Employment
Period the Executive shall continue to hold the title, and exercise the
authority, of the Chairman of the Board of Directors, it being the present
expectation of the parties that the Executive will be reelected as a Director in
2005. However, consistent with the transition program described in Section
1.1(c) below, it shall be the duty of the Executive during the Employment Period
to smoothly transition to others his titles and responsibilities as the
President, the Chief Executive Officer, and the Chief Operating Officer of both
the Corporation and WGI.
(c) In addition to the Executive continuing during the transition
period to perform his day to day executive and operating responsibilities
referred to in Section 1.1(b) above, the Executive shall (i) work diligently and
closely with the Board 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, and (ii) initiate the process of
screening, evaluating and interviewing qualified candidates, identified from
both inside and outside of the Willbros organization, to potentially replace him
as the Chief Executive Officer of WGI. Prior to the end of 2005, the Executive
shall have identified and recommended to the Board at least two or more
qualified candidates to fill the role of Chief Executive Officer of WGI, at
least one of which must be an individual not then employed by the Corporation or
its affiliated companies. Notwithstanding this priority obligation of the
Executive to use all reasonable efforts to identify suitable candidates to
replace him as the Chief Executive Officer of WGI, the Executive shall also work
diligently during the transition period to smoothly transfer his other titles
and duties, including as President and Chief Operating Officer of the
Corporation and WGI.
(d) Throughout the Employment Period, the Executive shall devote
substantially 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 vacation 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 to stay on with
the Corporation and WGI to perform the services described in this Agreement, the
Executive shall be compensated as follows:
(a) Beginning January 1, 2005, through the end of the Employment
Period the Corporation shall pay the Executive a base salary of seven hundred
thousand dollars ($700,000) per year. 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.
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1.3 BONUS The Executive shall always remain eligible for bonus
consideration annually at the sole discretion of the Board. Also, in
consideration of the Executive foregoing other business opportunities and
agreeing to stay on with the Corporation and WGI to perform the services
described in this Agreement, and subject to Section 4.3 below, the Executive
shall be entitled to a cash bonus for each year during the Employment Period if
the transition performance goals and/or the net income target performance
objectives as described in Exhibit A and approved by the Board are achieved. The
maximum cash bonus the Executive shall be entitled to receive for meeting the
performance goals each year during the Employment Period shall be:
Year Maximum Cash Bonus
---- ------------------
2005 $1,050,000
2006 $1,050,000
2007 $1,050,000
Except to the extent provided in the next sentence, any cash bonus
earned by the Executive for any year shall be payable within thirty days
following the day the Audit Committee of the Board of Directors certifies to the
Board its acceptance of the financial statements of WGI for such year as
prepared by the independent public accountants for WGI. If the total
remuneration payable to the Executive, including base salary, bonus, and any
other remuneration includible for purposes of section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), for any year during the
Employment Period exceeds One Million Dollars ($1,000,000), then a part of the
bonus payable to the Executive pursuant to this Section 1.3 for such year shall
not be paid to the Executive until July 1, 2008. The part of the bonus earned
which will not be paid until July 1, 2008, shall be that amount which, when
subtracted from the total remuneration payable to the Executive for such year,
results in the total remuneration paid to the Executive for such year equaling
One Million Dollars ($1,000,000). The amount of any bonus earned under this
Section 1.3 and not paid until July 1, 2008, shall be increased by that amount
which would be earned on such deferred amount if it were invested on the day it
otherwise would be paid pursuant to the first sentence of this paragraph
(without reference to the first clause of such sentence) until June 30, 2008, in
an interest bearing obligation that earned interest at the London InterBank
Offered Rate ("LIBOR") plus three percent (3%).
1.4 RESTRICTED STOCK RIGHTS GRANTS. In consideration of the Executive
foregoing other business opportunities and agreeing to stay on with the
Corporation and WGI to perform the services described in this Agreement,
including using his best efforts to achieve the transition performance goals and
the net income target performance objectives as set forth in Exhibit A, the
Executive will be granted the right to receive the number of shares of common
stock, par value $.05 per share ("common stock"), of WGI ("restricted stock
rights") on the dates indicated below, subject to (i) all of the terms and
provisions of the WGI 1996 Stock Plan, (ii) the Executive's execution and
delivery of Restricted Stock Rights Award Agreements substantially in the form
of Exhibit B attached hereto, and (iii) Section 4.3 below:
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Date of Grant Number of Restricted Stock Rights
------------- ---------------------------------
January 1, 2005 125,000
January 1, 2006 50,000
January 1, 2007 50,000
The Executive's rights (i) in the January 1, 2005 restricted stock rights grant
shall vest with respect to 41,666 shares on December 31, 2005, with respect to
another 41,666 shares on December 31, 2006, and with respect to the remaining
41,667 shares on December 31, 2007, (ii) in the January 1, 2006 restricted stock
rights grant shall vest with respect to 25,000 shares on December 31, 2006, and
with respect to the remaining 25,000 shares on December 31, 2007, and (iii) in
the January 1, 2007 restricted stock rights grant shall vest with respect to
25,000 shares on June 30, 2007 and with respect to the remaining 25,000 shares
on December 31, 2007. All shares of WGI common stock deliverable to the
Executive by reason of the vesting of restricted stock rights shall be delivered
on July 1, 2008. The schedule for delivery to the Executive of WGI Common Stock
may not be accelerated except as permitted by United States Treasury
Regulations.
1.5 GROSS-UP PAYMENT. Notwithstanding anything to the contrary in this
Agreement, if any of the payments or benefits which the Executive has the right
to receive from the Corporation (the "Payments") are later determined to be
subject to the tax imposed by Section 409A of the Code, or any interest or
penalties with respect to such tax (such tax, together with any such interest or
penalties, are hereinafter collectively referred to as the "409A Tax"), the
Corporation shall pay to the Executive an additional payment (a "Gross-up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any income tax imposed on any Gross-up Payment, the Executive retains
an amount of the Gross-up Payment equal to the 409A Tax imposed upon the
Payments. The Compensation Committee shall make an initial determination as to
whether a Gross-up Payment is required and the amount of any such Gross-up
Payment. The Executive shall notify the Corporation immediately in writing of
any claim by the Internal Revenue Service which, if successful, would require
the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of
that, if any, initially determined by the Compensation Committee) within five
days of the receipt of such claim. The Corporation shall notify the Executive in
writing at least five days prior to the due date of any response required with
respect to such claim if it plans to contest the claim. If the Corporation
decides to contest such claim, then the Executive shall cooperate fully with the
Corporation in such action; provided, however, the Corporation shall bear and
pay all costs and expenses (including additional interest and penalties)
incurred in connection with such action and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any 409A Tax or income tax,
including interest and penalties with respect thereto, imposed as a result of
the Corporation's action. If, as a result of the Corporation's action with
respect to a claim, the Executive receives a refund of any amount paid by the
Corporation with respect to such claim, then the Executive shall promptly pay
such refund to the Corporation. If the Corporation fails to timely notify the
Executive whether it will contest such claim or the Corporation determines not
to contest such claim, then the Corporation shall immediately pay
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to the Executive the portion of such claim, if any, which it has not previously
paid to the Executive.
ARTICLE II
COMPETITION AND CONFIDENTIAL INFORMATION
2.1 COMPETITION AND CONFIDENTIAL INFORMATION. The Executive and the
Corporation recognize that, due to the nature of his prior association with the
Corporation and WGI and of his engagements hereunder, and the relationship of
the Executive to the Corporation and WGI, both in the past as an executive and
in the future hereunder, the Executive has had access to and has acquired, will
have access to and will acquire, and has assisted in and may assist in
developing, confidential and proprietary information relating to the business
and operations of the Corporation, WGI, and their affiliates, including but not
limited to, information with respect to present and prospective business plans,
financing arrangements, marketing projections, customer lists, contracts and
proposals.
The Executive acknowledges that such information has been and will
continue to be of central importance to the business of the Corporation, WGI,
and their affiliates and that disclosure or use by others could cause
substantial loss to the Corporation, WGI, and their affiliates. The Executive
and the Corporation also recognize that an important part of the Executive's
duties will be to develop goodwill for the Corporation, WGI, and their
affiliates through his personal contact with vendors, customers, subcontractors,
and others sharing business relationships with the Corporation, WGI, and their
affiliates, and that there is a danger that this goodwill, a proprietary asset
of the Corporation, WGI and their affiliates, may follow the Executive if and
when his employment relationship with the Corporation is terminated.
The Executive accordingly agrees that, during the Employment Period and
for a period of one year thereafter, the Executive will not either individually
or as owner, partner, agent, employee, or consultant engage in any activity
competitive with the business of the Corporation, WGI, or any of their
affiliates and will not directly or indirectly solicit any employee to leave the
employment of the Corporation, WGI, or any of their affiliates.
Nothing in this Article II shall be construed to prevent the Executive
from owning, as an investment, not more than one percent (1%) of a class of
equity securities issued by any issuer and publicly traded and registered under
Section 12 of the Securities Exchange Act of 1934.
This Section 2.1 shall survive the termination of this Agreement for
whatever reason.
2.2 NON-DISCLOSURE. At all times after the date of this Agreement, the
Executive will keep confidential any confidential or proprietary information of
the Corporation, WGI, and their affiliates which is now known to him or which
hereafter may become known to him as a result of his employment or association
with the Corporation, WGI, and their affiliates and shall not at any time
directly or indirectly disclose any such information to any person, firm or
corporation, or use the same in any way other than in
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connection with the business of the Corporation, WGI, and their affiliates. For
purposes of this Agreement, "confidential or proprietary information" means
information unique to the Corporation, WGI, and their affiliates which has a
significant business purpose and is not known or generally available from
sources outside the Corporation, WGI and their affiliates or typical of industry
practice. This Section 2.2 shall survive the termination of this Agreement.
ARTICLE III
CORPORATION'S REMEDIES FOR BREACH OF ARTICLE II
3.1 CORPORATION'S REMEDIES FOR BREACH. It is recognized that damages in
the event of a breach of Article II above by the Executive would be difficult,
if not impossible, to ascertain, and it is therefore agreed that, if such a
breach occurs, the Corporation, in addition to and without limiting any other
remedy or right it may have, shall have the right to an injunction or other
equitable relief, in any court of competent jurisdiction, enjoining any such
breach, and the Executive hereby waives any and all defenses he may have on the
ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief. The existence of this right shall not
preclude any other rights and remedies at law or in equity which the Corporation
may have.
ARTICLE IV
EMPLOYMENT PERIOD
4.1 DURATION. The Employment Period shall commence on January 1, 2005
and shall terminate on December 31, 2007.
4.2 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) Termination of this Agreement by the Corporation without
cause or through constructive discharge, as described in Section 4.4(a) below;
(b) Discharge of the Executive for cause, as described in Section
4.4(b) below;
(c) Death of the Executive;
(d) Total disability of the Executive, as described in Section
4.4(c) below;
(e) Voluntary resignation of the Executive; or
(f) "Change in Control" as that term is defined in the Willbros
Group, Inc. Severance Plan as Amended and Restated Effective September 25, 2003
(the "Severance Plan"); provided, however, that any event, transaction, or
series of events or transactions that would constitute a Change in Control under
such definition and which relates to, results from or constitutes a part of the
insolvency of, or a bankruptcy, bankruptcy reorganization, or
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receivership of the Corporation or WGI shall not constitute a Change in Control
or otherwise operate to trigger the obligation to pay amounts otherwise payable
upon the early termination of this Agreement.
4.3 COMPENSATION AND/OR BENEFITS FOLLOWING EARLY TERMINATION.
(a) In the event of an early termination of this Agreement due to
the Corporation's involuntary termination of the Executive's employment without
cause, or due to a constructive discharge of the Executive, or due to a Change
in Control, the Corporation shall pay to the Executive and provide him with the
following:
(i) During the remainder of the Employment Period, the
Corporation shall continue to pay the Executive his base salary at the rate
specified in Section 1.2(a) above,
(ii) During the remainder of the Employment Period, the
Executive shall, to the extent legally permissible, continue to be entitled to
all benefits and benefit payment options under all of the employee benefit
programs, plans or arrangements of the Corporation described in Section 1.2(b)
above as if he were still employed during such period under this Agreement, and
which have accrued as of the time of the termination of this Agreement under the
WGI 1996 Stock Plan, and
(iii) A cash bonus in an amount determined as if the
Corporation had exceeded the performance goals set forth at Section 1.3 above
necessary for the Executive to receive the maximum cash bonus for each of the
uncompleted years remaining in the Employment Period at the time of the
termination of this Agreement which cash bonus shall be payable at the time(s)
provided in Section 1.3 above.
(b) In the event of an early termination of this Agreement
because of the voluntary resignation of the Executive or termination of the
Executive's employment for cause, the Executive will receive his base salary
through the date of such voluntary resignation or termination of the Executive's
employment for cause, the Executive shall receive no cash bonuses under Section
1.3 above for any years remaining in the Employment Period which have not ended
as of the date of such voluntary resignation or termination of the Executive's
employment for cause even if the performance goals set forth in Section 1.3
above for such years are met or exceeded, and the Executive and his dependents
and beneficiaries will receive such benefits as they may be entitled under the
terms of the WGI 1996 Stock Plan and the employee benefit programs, plans and
arrangements of the Corporation described in Section 1.2(b) above which provide
benefits upon retirement, resignation or discharge for cause, as the case may
be.
(c) In the event of an early termination of this Agreement
because of the death of the Executive, the Executive's dependents, beneficiaries
and estate, as the case may be, will be entitled to and shall receive (i) the
Executive's base salary at the rate specified in Section 1.2(a) above through
the date of the Executive's death, (ii) an amount in cash determined as if the
Corporation had met or exceeded the performance goals set forth in Section 1.3
above for the year in which the Executive's death occurs payable within three
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months after the date of the Executive's death, but no other amounts in respect
of the potential cash bonuses under Section 1.3 above, and (iii) such survivor
and other benefits, including but not limited to health care continuation
benefits, as they may be entitled under the terms of the employee benefit
programs, plans and arrangements described in Section 1.2(b) above which provide
benefits upon the death of the Executive and under the WGI 1996 Stock Plan.
(d) In the event of an early termination of this Agreement
because of the total disability of the Executive, the Executive, and his
dependents, beneficiaries and estate, as the case may be, will be entitled to
and shall receive (i) the Executive's base salary at the rate specified in
Section 1.2(a) above through the date of the Executive's termination of
employment with the Corporation, (ii) an amount in cash determined as if the
Corporation had met or exceeded the performance goals set forth in Section 1.3
above for the year in which the Executive's termination of employment with the
Corporation occurs payable within three months after the date of the Executive's
termination of employment, but no other amounts in respect of the potential cash
bonuses under Section 1.3 above, and (iii) such benefits, including but not
limited to health care continuation benefits, as they may be entitled under the
terms of the employee benefit programs, plans and arrangements described in
Section 1.2(b) above which provide benefits upon total disability of the
Executive and under the WGI 1996 Stock Plan.
(e) The early termination of this Agreement as described in
Section 4.3 shall not preclude the Executive's participation in such benefits as
may be available to him under the Severance Plan, if any; provided, however, the
value of any compensation and/or benefits payable under the Severance Plan shall
not be duplicative of amounts paid under this Agreement, and such amounts
payable under the Severance Plan shall be offset against the value of any
compensation or benefits payable to the Executive under this Agreement, and vice
versa.
(f) The Executive shall not be required to mitigate the amount of
any payment provided for in this Section 4.3 by seeking employment or otherwise,
nor shall the amount of any payment provided for in this Section 4.3 be reduced
by any compensation or remuneration earned by the Executive as the result of
employment with another employer, or self-employment, or as a partner, after the
date of termination or otherwise.
(g) Although Executive shall be entitled to all rights which have
accrued under the WGI 1996 Stock Plan as of the time of the termination of this
Agreement, Executive shall not be granted any additional restricted stock rights
that have not yet been granted pursuant to Section 1.4 above at the time of the
termination of this Agreement.
4.4 DEFINITIONS. The following words shall have the specified meanings
when used in the Sections specified:
(a) In Section 4.2(a) above, the term "termination" means
termination (i) by the Corporation of employment of the Executive with the
Corporation for any reason other than death or total disability of the
Executive, or for cause, or (ii) by resignation of the Executive due to a
significant change in the nature or scope of his authorities or duties from
those contemplated in Section 1.1 above, a reduction in total compensation from
that provided
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in Section 1.2 above, or the breach by the Corporation of any other provision of
this Agreement.
(b) In Sections 4.2(b), 4.3(a) and 4.3(b) above, the term "cause"
means conduct that is so unacceptable or offensive that, by its nature, it would
render the Executive incapable of performing his duties hereunder, including,
but not limited to, substantial non-performance of his job responsibilities, or
the Executive engaging in conduct so reprehensible that a reasonable person
would view the same as compromising the moral and/or ethical principles of the
Corporation, or the Executive being convicted of embezzlement, fraud, perjury,
alteration of documents, robbery, or any other felonious act, or the breach by
the Executive of his obligations under Sections 2.1 and 2.2 above.
(c) In Sections 4.2(d) and 4.3(d) above, the term "total
disability" means a physical or mental condition which causes the Executive to
be unable to perform substantially all of the duties of his position hereunder
for a period of six (6) months or more as determined by the WGI's Board of
Directors.
ARTICLE V
NOTICES
5.1 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 VI
MISCELLANEOUS
6.1 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, save and except
for the continuing applicability and participation of the Executive in the
Severance Plan and the employee benefit plans and arrangements described in
Section 1.2(b) above, and the applicability of the terms and provisions of the
WGI 1996 Stock Plan and the Restricted Stock Award Agreements and/or Restricted
Stock Rights Award Agreements to the grants of restricted stock and/or
restricted stock rights to the Executive; provided, however, this Agreement
shall not diminish or otherwise alter the inherent power and authority of the
Board to amend, terminate, or otherwise later modify the Severance Plan and/or
other employee benefit plans or arrangements available to any employee or group
of employees as described in this Section 6.1.
6.2 MODIFICATION: 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.
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6.3 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.
6.4 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 USA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Its: Corporate Secretary
Director of Human Resources
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
EXHIBIT B
to the Employment Agreement dated December 31, 2004
by and between
Willbros U.S.A., Inc. and Xxxxxxx X. Xxxxxx
WILLBROS GROUP, INC.
RESTRICTED STOCK RIGHTS AWARD AGREEMENT
JANUARY 1, 2005
Xx. Xxxxxxx X. Xxxxxx
0000 Xxxx Xxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Dear Xxxx:
1. RESTRICTED STOCK RIGHTS AWARD. Willbros Group, Inc., a Republic of
Panama corporation (the "Company"), hereby grants to you an aggregate of 125,000
restricted stock rights (individually, a "RSR," and collectively, "RSRs"). Each
RSR entitles you to receive one share of Common Stock, par value $.05 per share,
of the Company ("Restricted Shares") at such time as the restrictions described
in Section 4(b) lapse as described in Section 5. This award is subject to your
acceptance of and agreement to all of the applicable terms, conditions, and
restrictions described in the Company's 1996 Stock Plan, as amended (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 Restricted Stock Rights Award
Agreement (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. This award
shall constitute an "Award" under the Plan, and any capitalized terms used in
this Award Agreement that are not otherwise defined herein shall have the
respective meanings provided in the Plan.
2. RESTRICTED SHARE CERTIFICATES. On July 1, 2008, the Company shall
register and issue in your name a certificate(s) for the Restricted Shares you
become entitled to receive hereunder after the restrictions described in Section
4(b) lapse as described in Section 5. All certificates for Restricted Shares
delivered to you pursuant to this Award Agreement shall be subject to such stop
transfer orders and other restrictions as the committee of the Board of
Directors of the Company that administers the Plan may deem necessary or
advisable under the Plan and the rules, regulations and other requirements of
the Securities and Exchange Commission, any stock exchange upon which such
Restricted Shares are then listed, and any applicable foreign, federal or state
securities laws.
B-1
3. STOCKHOLDER RIGHTS PRIOR TO ISSUANCE OF RESTRICTED SHARES. Neither
you nor any of your beneficiaries shall be deemed to have any voting rights,
rights to receive any dividends or other rights as a stockholder of the Company
with respect to any Restricted Shares covered by the RSRs until the date of
issuance by the Company of a certificate to you for such Restricted Shares.
Notwithstanding the foregoing, at such time as certificate(s) for Restricted
Shares are delivered to you, you will be paid a bonus in an amount equal to the
total dividends you would have received had such Restricted Shares been
delivered to you at the time(s) your rights therein vested.
4. RESTRICTIONS.
(a) Your ownership of the RSRs shall be subject to (i) the
restrictions set forth in subsection (b) of this Section until such
restrictions lapse pursuant to the terms of Section 5, and (ii) the
restrictions set forth in subsection (c) of this Section until such
RSRs shall be redeemed for the applicable Restricted Shares or
otherwise forfeited to the Company.
(b) At the time of your "Termination of Employment" (as
defined in Section 10(b)), 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), all of
your RSRs shall be forfeited to the Company and all of your rights to
receive any Restricted Shares in the future pursuant to the RSRs shall
automatically terminate without any payment of consideration by the
Company.
(c) You may not sell, assign, transfer or otherwise dispose of
any RSRs or any rights under the RSRs. No RSR and no rights under any
such RSR may be pledged, alienated, attached or otherwise encumbered,
and any purported pledge, alienation, attachment or encumbrance thereof
shall be void and unenforceable against the Company.
5. LAPSE OF RESTRICTIONS.
(a) The restrictions described in Section 4(b) shall lapse
with respect to 41,666 of the RSRs on December 31, 2005, with respect
to another 41,666 of the RSRs on December 31, 2006, and with respect to
the last 41,667 of the RSRs on December 31, 2007.
(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 RSRs at the time of the occurrence of any of the
following events:
(1) Your death or "Disability" (as defined in the
Plan);
(2) Your Termination of Employment, but only if such
Termination of Employment is the result of a dismissal or other action
by the Company or any of its Subsidiaries and does not constitute a
"Termination for Cause" (as defined in Section 10(a)); or
B-2
(3) A "Change of Control" (as defined in the Plan) of
the Company.
(c) Following the lapse of restrictions in accordance with
Subsection (a) or (b) of this Section 5 with respect to any RSRs, the
Company will issue you a certificate when and as provided in Section 2
of this Award Agreement for the Restricted Shares covered by such RSRs
in redemption of such RSRs.
6. AGREEMENT WITH RESPECT TO TAXES.
(a) You agree that (1) you will pay to the Company or a
Subsidiary, as the case may be, or make arrangements satisfactory to
the Company or such Subsidiary 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 Subsidiaries with respect to the
RSRs awarded or the issuance of any Restricted Shares to you and (2)
the Company or any of its Subsidiaries 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 RSRs awarded or
Restricted Shares issued.
(b) With respect to withholding required upon the lapse of
restrictions or upon any other taxable event arising as a result of the
RSRs awarded or the issuance of Restricted Shares to you, you may elect
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. Any such election
shall be irrevocable, made in writing, signed by you, and must be
delivered to the Compensation Committee of the Board of Directors
before June 30, 2008.
7. ADJUSTMENT OF SHARES. In the event of any change affecting the
shares of Common Stock of the Company by reasons of any stock dividend or split,
recapitalization, merger, consolidation, spin-off, combination or exchange of
shares, or other corporate change, or any distributions to stockholders, the
number of Restricted Shares subject to the RSRs awarded to you under this Award
Agreement shall be adjusted as provided in Section 13 of the Plan.
8. AGREEMENT WITH RESPECT TO SECURITIES MATTERS. You agree that you
will not sell or otherwise transfer any Restricted Shares received pursuant to
this Award Agreement 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. Unless a registration statement relating to
the Restricted Shares issuable upon the lapse of the restrictions on the RSRs
pursuant to this Award Agreement is in effect at the time of issuance of such
Restricted Shares, the certificate(s) for the Restricted Shares shall contain
the following legend:
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The securities evidenced by this certificate have not been
registered under the U.S. Securities Act of 1933 or any other
securities laws. These securities have been acquired for
investment and may not be sold or transferred for value in the
absence of an effective registration of them under the U.S.
Securities Act of 1933 and any other applicable securities
laws, or receipt by the Company of an opinion of counsel or
other evidence acceptable to the Company that such sale or
transfer is exempt from registration under such acts and laws.
9. TRANSFER TAXES. The Company shall pay all original issue and
transfer taxes with respect to the issue and transfer of the Restricted Shares
to you pursuant to this Award Agreement and all other fees and expenses
necessarily incurred by it in connection therewith.
10. CERTAIN DEFINITIONS. As used in this Award Agreement, the following
terms shall have the respective meanings indicated:
(a) "Termination for Cause" shall mean a Termination of
Employment as a result of (1) your willful and continued failure
substantially to perform your duties (other than any such failure
resulting from your incapacity due to physical or mental illness), (2)
your conviction for a felony, proven or admitted fraud,
misappropriation, theft or embezzlement by you, your inebriation or use
of illegal drugs in the course of, related to or connected with the
business of the Company or any of its Subsidiaries, or your willful
engaging in misconduct that is materially injurious to the Company or
any of its Subsidiaries, monetarily or otherwise, or (3) if you have
entered into an employment agreement or contract with the Company or
any of its Subsidiaries, any other action or omission that is
identified in such agreement or contract as giving rise to "Cause" for
the termination of your employment with the Company or any of its
Subsidiaries. For this purpose, no act, or failure to act, on your part
shall be considered "willful" unless done, or omitted, by you not in
good faith and without reasonable belief that your action or omission
was in the best interest of Company or any of its Subsidiaries.
(b) "Termination of Employment" shall mean the termination of
your full-time employment with the Company or any of its Subsidiaries
for any reason other than your death or Disability.
11. WAVIER OF RETIREMENT RIGHT. The Plan permits you to voluntarily terminate
your full-time employment with the Company or any of its Subsidiaries after you
have attained the age of 62 and have a minimum of four consecutive years of
continuous service with the Company or any of its Subsidiaries ("retire") and
immediately vest in all Restricted Shares or RSRs awarded to you notwithstanding
any other vesting requirements under the Plan or this Award Agreement. In
consideration of the award of RSRs to you pursuant to this Award Agreement, you
waive such right under the Plan to retire and accelerate the vesting of your
RSRs.
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If you accept this Restricted Stock Rights 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:
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Name:
------------------------------------
Title:
-----------------------------------
The foregoing Restricted Stock Rights Award is accepted by me as of the
1st day of January, 2005, and I hereby agree to the terms, conditions, and
restrictions set forth above and in the Plan.
-----------------------------------------
Xxxxxxx X. Xxxxxx
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