AMENDED & RESTATED EMPLOYMENT
AGREEMENT
This
Amended & Restated Employment Agreement (“
Agreement ”) is entered into effective as of
December 31, 2008 (the “ Effective Date ”),
by and between The Shaw Group Inc., a Louisiana corporation
(collectively with its affiliates and subsidiaries hereinafter
referred to as, the “ Company ”), and Dirk J.
Wild (“ Employee ”). The Company and Employee
shall hereinafter be referred to collectively as the “
Parties ”.
WHEREAS , the Company and Employee are parties to that
certain Employment Agreement dated as of October 10, 2007 (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 hereby
continues its employment of Employee, and Employee hereby accepts
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.
3. Employee’s Duties
.
(a) During the Term, Employee shall serve
as Senior Vice President, Administration, of the Company, or such
other similar position(s) as the Chief Executive Officer or the
Chief Operating Officer of the Company may determine from time to
time, with such duties and responsibilities as may from time to
time be assigned to him by the Board of Directors of the Company
(the “ Board ”), the Chief Executive Officer or
the Chief Operating Officer of the Company, 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 (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 Nonsolicitation and Noncompete
Agreement (defined below) and 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. Base
Compensation will be subject to review 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 annual base
salary, said 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 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 the 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 0% — 200% of
Employee’s bonus target (the “ Bonus Target
”), which Bonus Target shall initially be an amount equal to
50% of Employee’s Base Compensation. The Bonus Target may be
adjusted annually. Annual bonus payments will be subject to
customary withholdings.
(c) Long Term Incentive Awards .
Employee will be eligible to participate in the Company’s
discretionary Long Term Incentive (as defined in
Section 7(a)(i) below)plan(s) during the course of employment
with the Company, subject to the terms and conditions of the
applicable plan(s). 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 and granted under the
strict purview of the Compensation Committee of the
Board.
5. Additional Benefits . In
addition to the compensation provided for in Section 4,
Employee shall be entitled to the following:
(a) Business Expenses . The Company
shall, in accordance with any rules and policies that it may
establish from time to time for its 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. Requests for reimbursement for such
expenses must be accompanied by appropriate
documentation.
(b) Vacation . Employee shall be
entitled to four weeks of vacation per year, without any loss of
compensation or benefits. Employee shall be entitled to carry
forward any unused vacation time. 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 the various Employee benefit
plans or programs provided to the Employees of the Company in
general, including, without limitation, health (including
ExecuCare), dental, disability, 401k, accident and life insurance
plans. 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, programs or benefits described in
this Section 5(c), provided the change similarly affects all
executive officers of the Company that are similarly
situated.
6. Confidentiality; Nonsolicitation and
Noncompete .
(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; 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. Employee further acknowledges by signing this Agreement
that the Company has expended much time, cost and difficulty in
developing and maintaining the Company’s
customers.
(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 officers 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 consent 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 then or thereafter coming 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 in the course of such
employment.
(d) Employee agrees that, as part of the
consideration for this Agreement and as an integral part hereof,
Employee has executed, delivered and agreed to be bound by the
Nonsolicitation and Noncompete Agreement attached hereto as
Exhibit A , as well as any subsequent addenda thereto
executed by the Company and Employee.
7. Termination .
(a) This Agreement may be terminated prior
to the expiration of the Term only under the terms and conditions
set forth below:
(i) Resignation (other than for Good
Reason) . Employee may resign, including by reason of
retirement, Employee’s position at any time by providing
written notice of resignation to the Company. In the event of such
resignation (except in the case of resignation for Good Reason
(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 other
General Benefits (e.g., vacation, unreimbursed business expenses,
etc.) accrued and unpaid as of the Date of Termination and
(B) the retention 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 ”)of 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 plans 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 paid group
health and dental insurance benefits covering Employee’s
surviving spouse and minor children that are substantially similar to those that
Employee’s surviving spouse and minor children
were receiving immediately prior to
Employee’s death. Notwithstanding any provision to the
contrary in the plan(s) governing such Long Term Incentives,
Employee 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. 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 or
Employee’s legal representatives with respect to this
Agreement. This provision shall not be exclusive and shall be in
addition to death benefits payable by the Company or any insurer
under any insurance plan or program covering Employee.
(iii) Discharge .
(A) The Company may terminate
Employee’s employment for any reason at any time upon written
notice delivered to Employee.
(B) In the event that Employee’s
employment is terminated by the Company for any reason other than
Employee’s Misconduct or Disability (both as defined below),
the following shall occur:
(I) the Company shall pay to Employee,
subject to tax and other customary withholdings, not later than
15 days after the Date of Termination, (x) a lump sum
amount equal to the product of (1) the sum of
(a) Employee’s Base Compensation as in effect
immediately prior to the Date of Termination, plus
(b) Employee’s highest single bonus paid by the Company
to Employee in the two fiscal years prior to the Date of
Termination, multiplied by (2) 2.0, and (y) a lump
sum amount, in cash, equal to the cost for Employee to obtain, for
the period commencing on the Date of Termination and ending on the
date that is 18 months following the Date of
Termination,dental, disability, accident and life insurance, and
group health insurance benefits (including ExecuCare)
(collectively, “ Welfare Benefits ”) covering
Emp
