AMENDED & RESTATED EMPLOYMENT
AGREEMENT
This
Amended & Restated Employment Agreement (this “
Agreement ”) is entered into December 31, 2008,
but effective as of March 13, 2006 (the “ Effective
Date ”) by and between The Shaw Group Inc., a Louisiana
corporation (collectively with its affiliates and subsidiaries
hereinafter referred to as “ Company ”), and
David P. Barry (“ Employee ”). The Company and
Employee may hereinafter be referred to, individually, as a “
Party ” and, collectively, as the “
Parties ”.
WHEREAS , the Company and Employee are parties to that
certain Employment Agreement dated as of March 13, 2006 (the
“Original Agreement”); and
WHEREAS , the Company and Employee desire to amend
certain provisions of the Original Agreement and to restate the
Original Agreement in its entirety.
NOW, THEREFORE , in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and
for other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Parties agree as follows:
1. Employment . The Company
continues to employ Employee, and Employee hereby agrees to
continued employment by the Company, on the terms and conditions
set forth in this Agreement.
2. Term of Employment . Subject to
the provisions for earlier termination provided in Section 7
of this Agreement, the term of this Agreement (the “
Term ”) shall be two years, commencing on the
Effective Date, and shall be automatically renewed on each day
following the Effective Date so that on any given day the unexpired
portion of the Term shall be two years. Notwithstanding the
foregoing provision, at any time after the Effective Date the
Company or Employee may give written notice to the other Party that
the Term shall not be further renewed from and after a subsequent
date specified in such notice (the “ fixed term date
”), in which event the Term shall become fixed, and this
Agreement shall terminate on the second anniversary of such fixed
term date.
3. Employee’s Duties
.
(a) During the Term, Employee shall to
serve as the President of the Nuclear Division of the Power Group
of the Company, or such other similar position, with such duties
and responsibilities as may from time to time be assigned to him by
the Board of Directors (the “ Board ”), the
Chief Executive Officer or the President of Power Group of the
Company, as the case may be, provided that such duties are
consistent with the customary duties of such
position(s).
(b) Employee agrees to devote
Employee’s full attention and time during normal business
hours to the business and affairs of the Company and to use
reasonable best efforts to perform faithfully and efficiently
Employee’s duties and responsibilities. Employee shall not,
either directly or indirectly, enter into any business or
employment with or for any Person (as defined below) other than the
Company during the Term; provided, however, that Employee shall not
be prohibited from making financial investments in any other
company or business or from serving on the board of directors of
any other company, subject in each case to the provisions set forth
in the Company’s Code of Conduct or similar guidelines. For
the purposes of this Agreement, the term “Person” shall
mean any individual, corporation, limited or general partnership,
limited liability company, joint venture, association, trust or
other entity or organization, whether or not a legal entity.
Employee shall at all times observe and comply with all lawful
directions and instructions of the Board.
4. Compensation .
(a) Base Compensation . For
services rendered by Employee under this Agreement, the Company
shall pay to Employee Employee’s current base salary as of
the Effective Date (“ Base Compensation ”), per
annum, payable in accordance with the Company’s customary pay
periods and subject to tax and other customary withholdings.
Employee’s Base Compensation may be reviewed by the Board on
an annual basis as of the close of each fiscal year of the Company
and may be increased as the Board may deem appropriate. In the
event the Board deems it appropriate to increase Employee’s
Base Compensation, that increased amount shall thereafter be the
Base Compensation for the purposes of this Agreement.
Employee’s Base Compensation, as increased from time to time,
may not thereafter be decreased unless agreed to by Employee in
writing. Nothing contained herein shall prevent the Board from
paying additional compensation to Employee in the form of bonuses
or otherwise during the Term.
(b) Annual Bonus . During the Term,
Employee will be eligible to participate in Company’s
discretionary management incentive program as established by the
Board (as the same may be amended from time to time), with an
annual performance bonus range of 25-200% of Employee’s bonus
target (the “ Bonus Target ”), which Bonus
Target shall initially be an amount equal to 70% of
Employee’s Base Compensation. The Bonus Target may be
adjusted annually. Notwithstanding the foregoing, Employee’s
annual performance bonus shall be not less than 25% of
Employee’s Base Compensation each contract year. Annual bonus
payments will be subject to tax and other customary
withholdings.
(c) Signing Bonus . Employee was
paid a signing bonus of $1,000,000 on or after the Effective Date.
Signing bonus is subject to applicable tax withholdings. In the
event Employee voluntarily terminates employment (but not in the
event of Death or Disability) or is terminated for Misconduct (as
defined below) prior to the completion of 60 months of
employment, Employee will be required to repay to the Company a
pro-rata portion of the signing bonus as computed on a monthly
basis. For avoidance of doubt, for every month less than 60,
Employee would be required to return $16,666.67 to the Company.
Company and Employee acknowledge that any such repayment will be
reduced for any taxes Employee has previously payed in connection
with such bonus. However, Employee shall use Employee’s best
efforts to obtain a refund of all such taxes, in which case, any
refund shall be payable to the Company.
(c) Long Term Incentives
.
(i) Employee will be eligible to
participate in the Company’s discretionary Long Term
Incentive (defined below) plan(s) as established by the Board (as
the same may be amended from time to time), subject to the terms
and conditions of the applicable plan(s). The overall target value
of the annual Long Term Incentive grants to Employee on the date of
grant will be not less than 120% of Employee’s Base
Compensation.
(ii) All Long Term Incentive awards that
are to be settled by the delivery of shares are subject to
shareholders’ approval of shares to be allocated to the
Company’s Long Term Incentive plan(s) and are granted under
the strict purview of the Compensation Committee of the
Board.
(iii) Long Term Incentive awards will be
determined utilizing the valuation methodology used for other
similarly situated executive officers of the Company.
(iv) Notwithstanding any provision to the
contrary in the plan(s) governing such Long Term Incentives, in the
event that this Agreement is terminated by Employee pursuant to
Section 7(a)(ii), (iv) or (v) or by the Company
pursuant to Section 7(a)(iii)(A) (other than for Misconduct)
or (iii)(D), Employee shall have not less than one year from the
Date of Termination in which to exercise all Long Term Incentives
granted to Employee by the Company on or before the Date of
Termination (including any Long Term Incentives that become vested
pursuant to Section 7 of this Agreement); provided that
in no event shall such one year period extend the exercise period
for any Long Term Incentives beyond the date that is 10 years
from the date of grant of such Long Term Incentives.
5. Additional Benefits . In
addition to the compensation provided for in Section 4,
Employee shall be entitled to the following:
(a) Expenses . The Company shall,
in accordance with any rules and policies that it may establish
from time to time for executive officers, reimburse Employee for
business expenses reasonably incurred in the performance of
Employee’s duties. It is understood that Employee is
authorized to incur reasonable business expenses for promoting the
business of the Company, including reasonable expenditures for
travel, lodging, meals and client or business associate
entertainment. Request for reimbursement for such expenses must be
accompanied by appropriate documentation.
(b) Vacation . Employee shall be
entitled to four (4) weeks of vacation per year, without any
loss of compensation or benefits. Upon termination of employment of
Employee for whatever reason, Employee shall be paid for any unused
vacation time based on Employee’s Base Compensation as in
effect immediately prior to the Date of Termination.
(c) General Benefits . Employee
shall be entitled to participate in (i) the various employee
benefit plans or programs provided to employees of the Company in
general, including but not limited to, health (including
ExecuCare), dental, disability, accident and life insurance plans
and 401k plans, and (ii) the Flexible Perquisites Plan, which
provides Employee an amount equal to 4% of Employee’s Base
Compensation in each calendar year in lieu of customary perquisite
benefits. Benefits are subject to the eligibility requirements with
respect to each of such benefit plans or programs. Nothing in this
Section 5(c) shall be deemed to prohibit the Company from making
any changes in any of the plans or programs described in this
Section 5(c), provided the change similarly affects all
executive officers of the Company that are similarly
situated.
6. Confidentiality .
(a) Employee hereby acknowledges that the
Company possesses certain Confidential Information (defined below)
that is peculiar to the businesses in which the Company is or may
be engaged. Employee hereby affirms that such Confidential
Information is the exclusive property of the Company and that the
Company has proprietary interests in such Confidential Information.
For the purposes of this Agreement, the term “Confidential
Information” shall mean any and all information of any nature
and in any form that at the time or times concerned is not
generally known to Persons (other than the Company) that are
engaged in businesses similar to that conducted or contemplated by
the Company (other than by the act or acts of an employee not
authorized by the Company to disclose such information) which may
include, without limitation, the Company’s existing and
contemplated products and services; the Company’s purchasing,
accounting, marketing and merchandising methods or practices; the
Company’s development data, theories of application and/or
methodologies; the Company’s customer/client contact and/or
supplier information files; the Company’s existing and
contemplated policies and/or business strategies; any and all
samples and/or materials submitted to Employee by the Company of a
confidential nature; and any and all directly and indirectly
related records, documents, specifications, data and other
information with respect thereto. For the purposes of this
Agreement, “Confidential Information” shall not include
(i) information, knowledge or data that, through no fault of
Employee, becomes publicly available or (ii) information,
knowledge or data acquired from, or published by, third parties
that have no direct or indirect confidentiality obligation to the
Company.
(b) Employee shall (i) use the
Confidential Information solely for the purpose of performing
Employee’s duties on behalf of the Company and for no other
purpose whatsoever, (ii) not, directly or indirectly, at any
time during or after Employee’s employment by the Company,
disclose Confidential Information to any other Person (except to
the Company’s employees in connection with Employee’s
duties on behalf of the Company) or use or otherwise exploit
Confidential Information to the detriment of the Company, and
(iii) not lecture on or publish articles with respect to
Confidential Information without the prior written approval of the
General Counsel of the Company. In the event of a breach or
threatened breach of the provisions of this Section 6(b), the
Company shall be entitled, in addition to any other remedies
available to the Company, to an injunction restraining Employee
from disclosing such Confidential Information.
(c) Upon termination of employment of
Employee, for whatever reason, Employee shall surrender to the
Company any and all documents, manuals, correspondence, reports,
records and similar items that have or thereafter come into the
possession of Employee that contain any Confidential Information;
provided , however , that the Company will provide
Employee reasonable access to such Confidential Information to the
extent required by Employee in connection with the defense of any
cause of action, dispute, proceeding or investigation made or
initiated against Employee by any Person other than the Company
related to the employment of Employee by the Company or the
performance by Employee of its duties and responsibilities in the
course of such employment.
7. Termination.
(a) This Agreement may be terminated prior
to the expiration of its Term only under the terms and conditions
set forth below:
(i) Resignation (other than for Good
Reason) . Employee may resign Employee’s position at any
time, including by reason of retirement, by providing written
notice of resignation to the Company. In the event of such
resignation (except in the case of resignation for Good Reason (as
defined in Section 7(a)(iv) below)), this Agreement shall
terminate on the Date of Termination (defined in Section 7(c)
below), and Employee shall not be entitled to further compensation
pursuant to this Agreement other than (A) the payment of any
Base Compensation and General Benefits (e.g., unused vacation,
unreimbursed business expenses, etc.) accrued and unpaid as of the
Date of Termination and (B) the retention of any and all
option shares, restricted shares or units or other similar awards
granted to Employee by the Company under any long term incentive
plan(s) duly adopted by the Board (“ Long Term
Incentives ”) that have vested or become exercisable on
or before the Date of Termination in accordance with the plans
governing such Long Term Incentives (which Long Term Incentives
remain subject to, and must thereafter be exercised in accordance
with, the plan(s) governing such Long Term Incentives).
(ii) Death . If Employee’s
employment is terminated due to Employee’s death, the Company
shall pay to Employee’s surviving spouse or estate, subject
to tax and other customary withholdings, not later than
30 days after Employee’s death, (A) any Base
Compensation and General Benefits accrued and unpaid as of the date
of Employee’s death, and (B) a lump sum amount, in cash,
equal to to the cost for Employee to obtain one year of group
health and dental insurance benefits covering Employee’s
spouse and dependents that are substantially similar to those that
Employee’s surviving spouse and dependents were receiving
immediately prior to Employee’s death. Notwithstanding any
provision to the contrary in the plan(s) governing such Long Term
Incentives, Employee, as of the date of Employee’s death,
shall also become immediately and totally vested in any and all
Long Term Incentives granted to Employee by the Company prior to
the Date of Termination that have not previously vested in full.
After all payments, benefits and vesting of Long Term Incentives
specified under this Section 7(a)(ii) have been paid or
performed, this Agreement shall terminate, and the Company shall
have no obligations to Employee, Emp
