EXHIBIT 10.2
AMENDMENT TO MANAGEMENT AGREEMENT
This Amendment, dated September 21, 2006 (the "Amendment"), is to the
Management Agreement, dated June 27, 2005 (the "Agreement"), between InfraSource
Services, Inc. (the "Company") and Xxxxxx XxxXxxxxxx (the "Executive"). All
capitalized terms used in this Amendment without definition shall have the
meanings set forth in the Agreement. The effective date of this Amendment shall
be the date upon which the 7-day revocation period set forth in the Severance
and Release Agreement between the parties has expired.
WHEREAS, the Company and the Executive entered into the Agreement in order
to obtain the services of the Executive for the Company and certain of its
subsidiaries, and agreed, in such Agreement, that the Company would provide
certain severance benefits to the Executive in the event of a termination of
employment without Cause.
WHEREAS, the payment of the contracted-for severance payments by the
Company on the schedule contemplated by the Agreement may cause the Executive to
incur and be responsible for the payment of excise taxes and penalties under the
provisions of Section 409A of the Internal Revenue Code of 1986, as amended
("Section 409A").
WHEREAS, the Company and the Executive desire to amend the Agreement to
revise the severance payment provisions to avoid the imposition of Section 409A
taxes on the Executive.
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. Amendment of Reimbursement of Expenses. The following sentence is
added to the end of Section 4(d) of the Agreement:
"All such reimbursements shall be made by December 31 of the
second calendar year following the calendar year in which
Executive's termination of employment occurs, provided that
reimbursements are requested in a timely manner."
2. Amendment of Death and Disability Provisions. The reference to
payment within "ninety (90) days" following the calendar year of Executive's
termination of employment by reason of Disability or death shall be replaced by
a reference to "seventy-five (75) days."
3. Amendment of Severance Payment Terms. Section 5(c) of the
Agreement is hereby deleted and replaced in full with the following:
(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 in favor of the Company and abiding by the
provisions set forth in Section 6, Executive shall be entitled to
receive cash severance payments equal in the aggregate to
twenty-four (24) months of Executive's annual Base Salary at the
time of termination, payable in equal installments in accordance
with the Company's standard payroll practices beginning with the
seventh full month following termination of employment. The parties
acknowledge that this payment structure is designed to comply with
the requirements of Section 409A and, if not required, the payments
under this Section 5(c) will be made beginning at the end of the
first full month following termination of employment.
4. Extended Period to Exercise Vested Stock Options. In accordance
with the terms of the Company's Equity Incentive Plan, the Executive currently
has ninety (90) days to exercise then-vested stock options if terminated by the
Company without Cause. Company agrees to extend such exercise period for an
additional sixty (60) days (until January 26, 2007).
5. Extension of Non-Compete Period. In consideration for benefits to
the Executive set forth herein, the Executive agrees that the periods set forth
in Sections 6(b), (c) and (d) of the Agreement shall be extended from
twenty-four to thirty months.
6. Impact on Agreement. Except as amended in this Amendment, all
terms and provisions of the Agreement shall continue in full force and effect,
including without limitation the provisions of Section 10. For the avoidance of
doubt, the benefits conferred to Executive under the Agreement and this
Amendment shall succeed to Executive's estate.
7. Amendment Controls. In the event of any conflict between the
provisions of the Agreement and this Amendment, this Amendment shall control.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
by its duly authorized officer, and Executive has hereunto signed this
Amendment, as of the date first written above.
INFRASOURCE SERVICES. INC.
/s/ Xxxxx X. Xxxxx
____________________________________________
By: Xxxxx X. Xxxxx
Its: Senior Vice President, Human Resources
EXECUTIVE
/s/ Xxxxxx XxxXxxxxxx
____________________________________________
Xxxxxx XxxXxxxxxx
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