FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT BETWEEN FOSTER WHEELER INC. AND THIERRY DESMARIS
Exhibit 10.93
WHEREAS, Xxxxxx Xxxxxxx Inc. (the “Company”) entered into an Employment Agreement (the
“Agreement”) with Xxxxxxx Xxxxxxxx (the “Executive”), dated as of March 27, 2009;
WHEREAS, the Company is relocating its primary office from Clinton, New Jersey to Switzerland
and the Company acknowledges that such relocation constitutes a material negative change in the
employment relationship such that the Executive may terminate employment for good reason pursuant
to Agreement Section 4.1.2(iii) (Termination; For Good Reason By the Executive);
WHEREAS, in exchange for the valuable consideration provided by this Amendment, the Executive
has agreed to (i) delay exercising the Executive’s right to terminate employment for good reason
relating to the Swiss relocation and (ii) enter into a secondment agreement with a primary place of
business in Switzerland where he would perform his duties through December 31, 2010; and
WHEREAS, pursuant to Section 9.9 of the Agreement, an amendment to the Agreement may be made
pursuant to the written consent of the Company and the Executive.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and in further consideration of the following mutual promises, covenants and
undertakings, the parties agree that the Agreement is amended effective as of January 18, 2010 by
adding an addendum at the end of the Agreement, to read as follows:
ADDENDUM
This Addendum sets forth the terms and conditions applicable during the Executive’s
performance of duties (as described in Agreement Section 1.1) in Switzerland from January 18, 2010
through the earlier of (i) December 31, 2010 or (ii) the date of Agreement termination by the
Company or Executive (the “Assignment Term”). Unless otherwise provided in this Addendum, all
Agreement terms (including the Executive’s entitlement to the compensation and benefits described
in Agreement Section 3, as adjusted for merit increases since the date of the Agreement) shall
remain in full force and effect during the Assignment Term.
A-1. Location.
During the Assignment Term, the Executive shall perform his duties (as described in Agreement
Section 1) primarily at the Company’s offices in Switzerland, subject to reasonable
travel requirements consistent with the nature of the Executive’s duties from time to time on
behalf of the Company.
A-2. Incentive Awards.
(a) Short-Term Incentive. The Executive shall be eligible to continue to participate
in the Company’s annual short-term incentive program for 2010, as determined by the Compensation
Committee. The Executive shall be treated as eligible for payment of the short-term incentive
payment for 2010 notwithstanding the termination of the Executive’s employment prior to the date
the award is paid in 2011.
(b) Extended Exercise. The Executive shall not be eligible to receive an annual
long-term incentive award in 2010. However, upon the Executive’s termination of employment (other
than for Cause), all stock options outstanding as of the Executive’s Termination Date shall remain
exercisable for the shorter of one (1) year following the Executive’s termination of employment or
the remainder of the term of the stock option(s).
A-3. Transition Support and Allowances.
The Company shall pay for the following expenses, allowances and benefits through the
Assignment Term. Such allowances and benefits shall not be considered for purpose of any
calculations under the Company’s benefit plans. All of the benefits provided in this Addendum are
inclusive of a Representation Allowance of CHF 100,000.
(a) Work Permits/Visas. The Company will assist in obtaining the proper work permits
and/or visas necessary for the provision of services in Switzerland and reimburse the Executive for
any work permit/visa, passport and immigration expenses, including expenses for dependents of the
Executives relocating or intending to relocate to Switzerland.
(b) Transportation and Expenses.
(i) Move-Related Transportation and Expenses. The Company shall reimburse the Executive
for actual and reasonable expenses incurred in relation to the relocation to Switzerland,
including temporary living expenses (e.g., hotel costs, meals, transportation, etc.) and
reasonable expenses relating to the shipping of clothing, personal effects and household
goods. The Executive agrees to make reasonable efforts to secure independent housing within
a reasonable period of time.
(ii) Personal Air Travel. The Company shall provide reimbursement of one (1)
business-class round-trip ticket per month for personal travel between Switzerland and the
U.S. Each month, the Executive may use the business-class round trip ticket to instead fly
one (1) family member from the U.S. to Switzerland. Once per quarter, in lieu of the
Executive’s trip to the U.S., the Company shall reimburse the cost of business-class
round-trip tickets for the Executive’s family to travel from the U.S. to Switzerland.
(c) Cost-of-Living Allowances. Beginning when the Executive secures independent
housing and the reimbursement of move-related expenses described in A-3(b)(i) ceases, the Company
shall pay the Executive monthly allowances consisting of the following amounts:
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(i) Cost-of-living allowance: CHF 4,644
(ii) Transportation: CHF 3,042
(iii) Housing: CHF 13,800
(iv) Utilities: CHF 400
The allowances specified in (i) through (iv) shall be payable in advance in Swiss Francs according
to the Company’s payroll practices. The Company shall also provide for reasonable advances to the
Executive for the purpose of obtaining housing and satisfying other relocation expenses.
(d) Settling-In Allowance. The Company shall pay the Executive a one-time settling-in
allowance of CHF 5,000, payable in January 2010 or as soon as practicable thereafter.
(e) Medical Coverage. To the extent U.S. medical coverage is not available in
Switzerland, the Company shall pay for the cost of securing substantially similar coverage in
Switzerland for the Executive and the Executive’s family. Eligible dependents of the Executive
shall continue to maintain medical coverage irrespective of their relocation to Switzerland.
(f) Seconded Arrangement. The Executive shall be seconded to Xxxxxx Xxxxxxx
Management AG in Switzerland and shall continue to remain an employee of the Company. The
Executive remain eligible to participate in the Company’s employee benefit plans as set forth in
Section 3 of the Agreement and to receive U.S. social security benefits.
(g) Compassionate Leave. The Executive shall be provided with up to five (5) day’s
paid compassionate leave in relation to the death of an immediate family member. The Company shall
reimburse the Executive and his dependents for the cost of round-trip business airline tickets to
attend funeral services.
(h) Tax Equalization. Under tax equalization, the Executive’s obligation for income
taxes shall not exceed the amount of income tax calculated on Base Salary, short-term annual pay
and long-term incentive pay applying his or her home country tax rules without taking into
consideration any foreign tax credit. Such amount will be deducted from the Executive’s paycheck.
Should additional income taxes arise in the U.S. or Switzerland as a result of the assignment, the
Company shall pay the additional tax. The Executive may choose, as an alternative to the U.S. tax
equalization program, to be personally responsible for the Swiss income tax on his or her Base
Salary, short-term incentive pay and long-term incentive pay. In addition to the tax equalization
on the compensation above, the Executive will be reimbursed for any wealth tax due in Switzerland
as a result of the assignment.
(i) Tax Return Preparation and Counseling Services. The Company shall retain the
services of a tax consultant to counsel the Executive with respect to the tax implications of the
move and to prepare the Executive’s U.S. and Switzerland tax returns as required during the
Assignment Term.
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(j) Legal Services. The Company shall reimburse the Executive for legal fees incurred
in relation to an attorney’s review of this Addendum, up to a maximum of USD 5,000.
(k) Tax Gross-Up. To the extent that the provision of assignment benefits described
in this Section A-3 results in taxable income to the Executive, the Company shall pay the Executive
an amount to satisfy the Executive’s Swiss and U.S. income tax obligation. Such payment shall be
grossed-up for taxes and made as soon as practicable after the tax liability arises but in no event
later than the end of the year following the year in which the tax is due.
(l) Maximum Length of Assignment. For the avoidance of doubt, the maximum period of
time during which the Executive may be considered to be “on assignment” and, therefore, eligible
for assignment-related compensation and benefits is five (5) years from the start of the Assignment
Term.
A-4. Stay Bonus Award.
The Company shall pay the Executive a cash stay bonus under the following terms:
(a) Full Stay Period. The Executive shall receive a cash bonus equal to 125% of the
Executive’s Base Salary then in effect, provided the Executive remains in active employment until
December 31, 2010. Payment of such bonus shall be made in a single lump sum in January 2011.
(b) Termination Without Cause; For Good Reason; Death; Disability. The stay bonus
described in paragraph (a) shall be payable in full and irrespective of the actual duration of the
Assignment Term if the Executive’s employment is terminated by the Company without Cause, by the
Executive for Good Reason (not including the event of the assignment to Switzerland), or due to the
Executive’s death or Disability. In such case the stay bonus shall be paid in a lump sum within
thirty (30) days of termination of employment.
(c) Forfeiture of Stay Bonus. The Executive shall forfeit the stay bonus (and must
repay the stay bonus if the stay bonus has been paid) if the Executive’s employment is terminated
for Cause. The Executive must repay any paid stay bonus in full within thirty (30) days of his
termination of employment.
A-5. Termination of Employment.
(a) During Assignment Term. Except as otherwise provided in paragraph (b) or (c)
below, if the Executive’s employment is terminated for any reason during the Assignment Term, the
terms of Agreement Section 4 shall control; provided, that the relocation to Switzerland shall not
constitute an event giving rise to a termination of employment for Good Reason. If the termination
is for any reason other than for Cause, the Company shall pay the reasonable costs associated with
repatriation to the U.S.
(b) Good Reason Termination Relating to Swiss Relocation. Except as otherwise
provided in paragraph (c), if the Executive terminates employment after June 30, 2010 and has
provided the Company with at least two (2) months advance written notice of termination, such
termination of employment shall be deemed a termination by the Executive for Good Reason and
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the Executive shall be entitled to the separation payments and benefits described in Agreement
Sections 4.2.1 and 4.2.2 (or 4.3.2 if the termination occurs during a Change of Control Period).
In addition, the Company shall pay the reasonable costs associated with repatriation to the U.S.
(c) Termination Relating to Catastrophic Personal Event. If the Executive terminates
employment at any time during the Assignment Term due to an unforeseen personal and catastrophic
event affecting the Executive or a family member, which event requires the Executive to relocate to
the U.S., and the Executive provides the Company with thirty (30) days advance written notice, then
such termination of employment shall be deemed a termination by the Executive for Good Reason and
the Executive shall be entitled to the separation payments and benefits described in Agreement
Sections 4.2.1 and 4.2.2 (or 4.3.2 if the termination occurs during a Change of Control Period).
In addition, the Company shall pay the reasonable costs associated with repatriation to the U.S.
(d) End of Assignment Term. If the Executive terminates employment on or after
December 31, 2010, such termination of employment shall be deemed a termination by the Executive
for Good Reason and the Executive shall be entitled to the separation payments and benefits
described in Agreement Sections 4.2.1 and 4.2.2 (or 4.3.2 if the termination occurs during a Change
of Control Period). No notice requirement shall apply for a termination of employment on or after
December 31, 2010. In addition, the Company shall pay the reasonable costs associated with
repatriation to the U.S.
A-6. Application of Section 409A to Benefits-in-Kind, Expense Reimbursements and
Allowances
(a) Benefits-in-Kind; Expense Reimbursements. Benefits-in-kind and any provision for
reimbursement of expenses during the assignment period will be subject to the following rules, as
required to comply with Code Section 409A:
(i) The amount of in-kind benefits provided or expenses eligible for reimbursement in
one calendar year may not affect in-kind benefits or reimbursements to be provided in any
other calendar year.
(ii) Expenses will be reimbursed as soon as administratively possible, but in no event
shall expenses be reimbursed later than December 31st of the year following the
year in which the expense was incurred.
(iii) The right to an in-kind benefit or reimbursement may not be subject to liquidation
or exchange for another benefit.
(b) Allowances. Allowances generally shall be paid monthly. In no event shall the
payment of any allowance be made later than March 15th of the year following the year in
which the Executive is entitled to payment.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement
effective as of the date first written above.
XXXXXX XXXXXXX INC.
By
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/s/ Xxxxxxx X. Xxxxxxxxxx
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1/8/10 | ||||
| Xxxxxxx X. Xxxxxxxxxx | Date | |||||
| /s/ Xxxxxxx Xxxxxxxx | 1/14/10 | |||||
| Xxxxxxx Xxxxxxxx | Date | |||||
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