This Employment
Agreement (“ Agreement ”) is entered into as of
December 31, 2008, but is effective as of September 1,
2007 (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 Dorsey Ron McCall (“
Employee ”). The Company and Employee may hereinafter
be referred to, individually, as a “ Party ”
and, collectively, as the “ Parties
”.
WHEREAS ,
the Company currently employs Employee and desires to continue such
employment relationship, and Employee desires to continue such
employment relationship, in each case on the terms and conditions
set forth herein.
NOW,
THEREFORE , in consideration of the mutual covenants,
representations, warranties and agreements set forth herein, and
for other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Parties hereby agree as
follows:
1.
Employment . The Company hereby 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 set forth in this Agreement, the initial term of this
Agreement (the “ Initial Term ”) shall be two
years, commencing on the Effective Date; provided that, at
the end of the Initial Term, this Agreement shall be automatically
renewed for an additional two year period unless, not less than 90
days prior to expiration of the Initial Term, the Company or
Employee gives written notice to the other
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Party that the
Initial Term shall not be renewed. The Initial Term, together with
the renewal term (if any), shall hereinafter be referred to as the
“ Term .” For the avoidance of doubt, an
election not to renew the Initial Term shall not constitute a
termination of this Agreement for the purposes of
Section 7(a).
(a) During
the Term, Employee shall serve as the President of the Maintenance
Division of the Power Group of the Company, or such other similar
position(s) as the Parties may mutually agree, reporting directly
to the President of the Power Group and 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
”) or the Chief Executive Officer of the Company, provided
that such duties are comparable to the customary duties and
responsibilities 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 of which Employee is notified in writing. For
the purposes of this Agreement, the term “Person” shall
mean any individual, corporation, limited or general
partnership,
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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 of which Employee is notified in
writing.
(a)
Base Compensation . For services rendered by Employee under
this Agreement, the Company shall pay to Employee a base salary
(“ Base Compensation ”) of $600,000 per contract
year, payable in accordance with the Company’s customary pay
periods and subject to tax and other customary withholdings.
Employee’s 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 that 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 be decreased unless agreed to by Employee.
Nothing contained herein shall prevent the Board from paying
additional compensation to Employee in the form of bonuses or
otherwise during the Term.
(b)
Minimum Annual Bonus . During the Term, Employee shall
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 Employee’s Base Compensation. The Bonus
Target may be adjusted annually.
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Notwithstanding
the foregoing, Employee’s annual performance bonus shall be
not less than $725,000 each contract year. Annual bonus payments
will be subject to tax and other customary withholdings.
(c)
Retention Amount . As additional consideration for this
Agreement, as well as the Nonsolicitation and Noncompete Agreement,
the Company agrees to pay to Employee, not later than 15 days after
the second anniversary of the Effective Date, in cash and subject
to tax and other customary withholdings, an amount (such amount,
the “ Retention Amount ”) equal to (i) $300,000;
provided , however , that, in the event that Employee
voluntarily terminates employment with the Company or is terminated
for Misconduct (as defined below) prior to the expiration of the
Initial Term, Employee shall forfeit all rights to any portion of
the Retention Amount. In the event that Employee is terminated by
the Company for any reason other than Misconduct prior to the
expiration of the Initial Term, Employee shall receive the
Retention Amount on the first day occurring after the date that is
six months after the Date of Termination (defined
below).
(d)
Long Term Incentive Awards . 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). All stock-based awards
that are to be settled by the delivery of shares are subject to
shareholder 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.
Notwithstanding any provision to the contrary in the
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plan(s)
governing such Long Term Incentives, in the event that any options
or similar awards become vested pursuant to Section 7 of this
Agreement, Employee shall have not less than one year from the date
of such vesting in which to exercise such options or other
awards.
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. Request for reimbursement for
such expenses must be accompanied by appropriate
documentation.
(b)
Vacation . During the Term, 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. At the end of the Term, Employee shall be paid for
any unused vacation time based on his Base Compensation in effect
for the last contract year of the Term.
(c) General
Benefits . Employee shall be entitled to participate in
(i) the various employee benefit plans or programs provided to
the employees of the Company in general, including, but not limited
to, health (including
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ExecuCare),
dental, disability, 401k, accident and life insurance 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 flexible perquisite benefits.
Benefits are subject to the eligibility requirements with respect
to each of such benefit plans or programs and such other benefits
or perquisites as may be approved by the Board during the Term.
Nothing in this Section 5(c) shall be deemed to prohibit the
Company from making any changes in, or elimination of, any of the
benefit 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; 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,
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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 strategy; 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 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
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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.
(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.
(a) This
Agreement may be terminated prior to expiration of the 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
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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 Section 7(c) below),
and Employee shall not be entitled to further compensation pursuant
to this Agreement other than 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 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, not later than 30 days after
Employee’s death, the Company shall pay to Employee’s
surviving spouse or estate any Base Compensation and General
Benefits accrued and unpaid as of the date of Employee’s
death, subject to tax and other customary withholdings. In
addition, (A) from the date of Employee’s death until the
earlier to occur of (x) the last day of the Initial Term (or,
if the Initial Term was renewed prior to Employee’s death,
the Term) and (y) the date of death of Employee’s
surviving spouse, the Company shall pay to Employee’s
surviving spouse Employee’s Base Compensation (as in effect
as of the date of Employee’s
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death), in
accordance with the Company’s customary pay periods and
subject to tax and other customary withholdings, and shall provide
paid group health and dental insurance benefits to Employee’s
surviving spouse, and (B) from the last day of the Initial
Term (or, if the Initial Term was renewed prior to Employee’s
death, the Term) until the earlier to occur of (x) the last
day of the Consulting Period (assuming for the purposes of this
clause that the Parties had executed a Consulting Agreement for the
full five years contemplated by Section 7(f)) and (y) the
date of death of Employee’s surviving spouse, the Company
shall pay to Employee’s surviving spouse $300,000 per annum,
in accordance with the Company’s customary pay periods and
subject to tax and other customary withholdings. Notwithstanding
any provision to the contrary in the plan(s) governing such Long
Term Incentives, Employee, as of the date of his 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, Employee’s spouse and dependents or
Employee’s legal representatives with respect to this
Agreement.
(A)
The Company may terminate Employee’s employment for any
reason at any time upon written notice delivered to Employee in
accordance with Section 7(b).
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(B)
In the event that Employee’s employment is terminated during
the Term by the Company for any reason other than Employee’s
Misconduct or Disability (both as defined below), the following
shall occur:
(1)
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, in cash, equal to the
sum of (a) the product of (i) Employee’s Base
Compensation as in effect immediately prior to the Date of
Termination, multiplied by (ii) the remaining portion
of the Initial Term (or, if the Initial Term was renewed prior to
the Date of Termination, the Term), plus (b) the most
recent annual bonus paid to Employee by the Company, plus
(c) $1,500,000 (in respect of foregone consulting fees), and
(y) a lump amount, in cash, equal to the cost for Employee to
obtain, for the period commencing on the Date of Termination and
ending on the earlier to occur of (1) the date that is
18 months following the Date of Termination and (2) the
last day of the Initial Term (or, if the Initial Term was renewed
prior to the Date of Termination, the Term), disability, accident,
dental and group health insurance benefits (“ Welfare
Benefits ”) covering Employee (and, as applicable,
Employee’s spouse and dependents) that are substantially
similar to those that
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Employee (and
Employee’s spouse and dependents) were receiving immediately
prior to the Date of Termination; and
(3)
Notwithstanding any provision to the contrary in the plan(s)
governing such Long Term Incentives, Employee shall become
immediately and totally vested in any and all Long Term Incentives
granted to Employee by Company prior to the Date of Termination
that have not previously vested in full.
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