Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “
Agreement ”) is made and entered into this 2
nd day of April, 2007 (the “
Effective Date ”), by and between Willdan Group, Inc.,
a Delaware corporation (“ Company ”), and Thomas
D. Brisbin, an individual (“ Executive
”).
RECITALS
THE PARTIES ENTER THIS
AGREEMENT on the basis of
the following facts, understandings and intentions:
A. Company desires to employ Executive to carry out
the duties and responsibilities described below on the terms and
conditions hereinafter set forth.
B. Executive desires to accept such employment on
such terms and conditions.
C. This Agreement shall govern the
employment relationship between Executive and Company from and
after the Effective Date and supersedes all previous agreements
with respect to such relationship.
NOW, THEREFORE
, in consideration of the above
recitals incorporated herein and the mutual covenants and promises
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
Retention and Duties .
1.1
Retention .
Company hereby hires, engages and employs Executive for the
Employment Period, as defined in Section 2), on the terms and
conditions set forth in this Agreement. Executive hereby
accepts and agrees to such hiring, engagement and employment, on
the terms and conditions so set forth.
1.2
Duties .
During the Employment Period, Executive shall serve Company as its
President and Chief Executive Officer and shall have the powers,
duties and obligations of management usually vested in the office
of the chief executive officer of a corporation, subject to the
directives of Company’s Board of Directors (the “
Board ”) and the corporate policies of Company as they
are in effect from time to time throughout the Employment Period,
including, without limitation, Company’s business conduct and
ethics policies, as they may change from time to time. During
the Employment Period, Executive shall report solely to the
Board.
1.3
No Other Employment; Minimum Time Commitment
. During the Employment
Period, Executive shall both (i) devote substantially all of
Executive’s business time, energy and skill to the
performance of Executive’s duties for Company, and (ii) hold
no other employment. Executive’s service on the boards
of directors (or similar body) of other business entities, or the
provision of other services thereto, is subject to the prior
written approval of the Board, which may not be unreasonably
withheld. Company shall have the right to require Executive
to resign from any board or similar body on which he may then serve
if the
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Board reasonably determines that
Executive’s service on such board or body interferes with the
effective discharge of Executive’s duties and
responsibilities to Company or that any business related to such
service is then in competition with any business of Company or any
of its affiliates, successors or assigns. Nothing in this
Section 1.3 shall be construed as preventing Executive from
engaging in the investment of his personal assets.
Notwithstanding the foregoing, Executive may provide outside
consulting services with the prior consent of Company’s
Board.
1.4
No Breach of Contract . Executive represents to Company that:
(i) the execution and delivery of this Agreement by Executive and
Company and the performance by Executive of Executive’s
duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any other agreement or policy to which
Executive is a party or otherwise bound; (ii) Executive has no
information (including, without limitation, confidential
information and trade secrets) relating to any other person or
entity which would prevent, or be violated by, Executive entering
into this Agreement or carrying out his duties hereunder; and (iii)
Executive is not bound by any confidentiality, trade secret or
similar agreement with any other person or entity.
1.5
Location .
Executive’s principal place of employment shall be
Company’s principal executive offices located in Anaheim,
California. Executive agrees that he will be regularly
present at Company’s principal executive offices.
Executive acknowledges that he may be required to travel from time
to time in the course of performing his duties for
Company.
2.
Employment Period . The “ Employment Period
” shall be a period of three (3) years commencing on the
Effective Date and ending on the third anniversary of the Effective
Date (the “ Termination Date ”); provided,
however, that this Agreement shall be automatically renewed, and
the Employment Period shall be automatically extended for one (1)
additional year on the Termination Date and each anniversary of the
Termination Date thereafter, unless either party gives notice, in
writing, at least sixty (60) days prior to the expiration of the
Employment Period (including any renewal thereof) of such
party’s desire to terminate the Employment Period. The
term “Employment Period” shall include any extension
thereof pursuant to the preceding sentence. Provision of
notice that the Employment Period shall not be extended or further
extended, as the case may be, shall not constitute a breach of this
Agreement and shall not constitute “Good Reason” for
purposes of this Agreement. Notwithstanding the foregoing,
the Employment Period is subject to earlier termination as provided
below in this Agreement.
3.
Compensation .
3.1
Base Salary . Executive’s base salary (the
“ Base Salary ”) shall be paid in accordance
with Company’s regular payroll practices in effect from time
to time (presently bi-weekly), but not less frequently than in
monthly installments. Executive’s Base Salary for the
first twelve (12) months of the Employment Period shall be at an
annualized rate of Two Hundred and Fifty Thousand Dollars
($250,000). Company will review Executive’s Base Salary
at least annually and may increase (but not decrease)
Executive’s Base Salary from the rate then in effect based on
such review.
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3.2
Incentive Bonus . During the Employment Period, Executive
shall be eligible to receive an annual incentive bonus (“
Incentive Bonus ”). For the first twelve (12)
months of the Employment Period, Executive’s Incentive Bonus
amount shall be Two Hundred and Fifty Thousand Dollars
($250,000). Thereafter, Executive’s Incentive Bonus
shall be in an amount to be determined by the Board in its sole
discretion, based on the performance objectives established by the
Board for the particular 12-month period covered by the
bonus. In each case, payment of Executive’s Incentive
Bonus is contingent on Executive’s continued employment with
Company through the last day of the 12-month period covered by the
bonus.
3.3
Stock Option Grant . Company has approved the grant to
Executive, as of the Effective Date, of an option to purchase
100,000 shares of Company’s common stock (“ Common
Stock ”) at an exercise price per share equal to the
closing price of a share of the Common Stock on the Effective Date
(the “ Option ”). The Option is intended
to qualify as an “incentive stock option” within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the “ Code ”), to the maximum extent
possible within the limitations of the Code. The Option will
vest in substantially equal annual installments over the three-year
period following the date of grant. The vesting of each
installment of the Option will occur only if Executive remains
continuously employed with Company through the respective vesting
dates. The maximum term of the Option is ten (10) years from
the date of grant of the Option, subject to earlier termination
upon the termination of Executive’s employment with Company,
a change in control of Company and similar events. In the
event there is a change in control of Company during
Executive’s employment, all Options that have not already
vested shall immediately vest. The Option has been granted
under the Willdan Group, Inc. 2006 Stock Incentive Plan (the
“ Plan ”), a copy of which has been provided to
Executive, is subject to the approval by the Company’s
shareholders of the Plan, and is subject to such further terms and
conditions as set forth in a written stock option agreement to be
entered into by Company and Executive to evidence the Option (the
“ Option Agreement ”). Such Option
Agreement shall be in substantially the form attached hereto as
Exhibit A . Notwithstanding the foregoing provisions
of this Section 3.3, the grant of the Option is subject to approval
of the Plan by Company’s stockholders at Company’s next
annual meeting.
4.
Benefits .
4.1
Retirement, Welfare and Fringe Benefits
. During the Employment
Period, Executive shall be entitled to participate in all employee
pension and welfare benefit plans and programs, and fringe benefit
plans and programs, made available by Company to Company’s
employees generally, in accordance with the eligibility and
participation provisions of such plans and as such plans or
programs may be in effect from time to time.
4.2
Reimbursement of Business Expenses . During the Employment Period, Executive
is authorized to incur and shall be reimbursed for all reasonable
business expenses in carrying out Executive’s duties for
Company under this Agreement, subject to Company’s expense
reimbursement policies (including, without limitation, any policies
concerning proper documentation of such expenses) in effect from
time to time.
4.3
Vacation and Other Leave . During the Employment Period, Executive
shall accrue and be entitled to take paid vacation in accordance
with Company’s vacation policies in effect from time to
time. Executive shall also be entitled to all holiday and
leave pay generally available to other executives of
Company.
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4.4
Automobile Expenses . During the Employment Period, the
Corporation shall provide Executive with an automobile allowance of
$900 per month.
5.
Termination .
5.1
Termination by Company . Executive’s employment by Company,
and the Employment Period, may be terminated at any time by
Company: (i) with Cause (as defined in Section 5.5), or (ii) with
no less than sixty (60) days advance notice to Executive, without
Cause, or (iii) in the event of Executive’s death, or (iv) in
the event that the Board determines in good faith that Executive
has a Disability (as defined in Section 5.5).
5.2
Termination by Executive . Executive’s employment by Company,
and the Employment Period, may be terminated by Executive with no
less than sixty (60) days advance notice to Company; provided,
however, that in the case of a termination for Good Reason,
Executive may provide immediate written notice if Company fails to,
or cannot, reasonably cure the event that constitutes Good
Reason.
5.3
Benefits Upon Termination . If Executive’s employment by
Company is terminated during the Employment Period for any reason
by Company or by Executive (in any case, the date that
Executive’s employment by Company terminates is referred to
as the “ Severance Date ”), Company shall have
no further obligation to make or provide to Executive, and
Executive shall have no further right to receive or obtain from
Company, any payments or benefits except as follows:
(a)
Company shall pay Executive (or, in the event of his death,
Executive’s estate) any Accrued Obligations (as defined in
Section 5.5);
(b)
If, during the Employment Period (but not upon the expiration of
the Employment Period or at any time thereafter), Executive’s
employment with Company terminates as a result of an Involuntary
Termination (as defined in Section 5.5), Company shall continue to
pay Executive (in addition to the Accrued Obligations), subject to
tax withholding and other authorized deductions and subject to the
release requirement of Section 5.4, an amount equal to his Base
Salary at the annual rate in effect on the Severance Date for the
period commencing on the Severance Date and ending on the
Termination Date (or, if the Employment Period has been
automatically extended pursuant to Section 2, the next succeeding
anniversary of the Termination Date) (the “ Severance
Period ”), such payments to be made in equal installments
on a bi-weekly basis. In addition, Company shall pay the cost
of Executive’s premiums charged to continue medical coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act
(“ COBRA ”), at the same or reasonably
equivalent medical coverage for Executive (and, if applicable,
Executive’s eligible dependents) as in effect immediately
prior to the Severance Date, provided that Company’s
obligation to make any payment pursuant to this sentence shall
cease upon the first to occur of the date Executive becomes
eligible for medical coverage with another employer or the last day
of the Severance Period .
Notwithstanding the foregoing
provisions of this Section 5.3, if Executive breaches his
obligations under Section 7 or 8 of this Agreement at any time,
from and after the date of such breach, Executive will no longer be
entitled to, and Company will no longer be obligated to pay, any
remaining unpaid portion of any benefits provided in Section
5.3(b).
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The foregoing provisions of this
Section 5.3 shall not affect: (i) Executive’s receipt of
benefits otherwise due terminated employees under group insurance
coverage consistent with the terms of the applicable Company
welfare benefit plan; (ii) Executive’s rights under COBRA to
continue participation in medical, dental, hospitalization and life
insurance coverage; or (iii) Executive’s receipt of benefits
otherwise due in accordance with the terms of Company’s
401(k) plan (if any). In no event shall Company’s
obligations to Executive exceed the sum of the Accrued Obligations,
the benefits provided in Section 5.3(b) and the benefits
contemplated by this paragraph, regardless of the manner of
Executive’s termination.
5.4
Release; Exclusive Remedy .
(a)
This Section 5.4 shall apply notwithstanding anything else
contained in this Agreement or any stock option, restricted stock
or other equity-based award agreement to the contrary. As a
condition precedent to any Company obligation to Executive pursuant
to Section 5.3(b) or any obligation to accelerate vesting of any
equity-based award in connection with the termination of
Executive’s employment, Executive shall, upon or promptly
following his last day of employment with Company, provide Company
with a valid, executed general release agreement in a form
acceptable to Company, and such release agreement shall have not
been revoked by Executive pursuant to any revocation rights
afforded by applicable law. Company shall have no obligation
to make any payment to Executive pursuant to Section 5.3(b) (or
otherwise accelerate the vesting of any equity-based award in the
circumstances as otherwise contemplated by the applicable award
agreement) unless and until the release agreement contemplated by
this Section 5.4 becomes irrevocable by Executive in accordance
with all applicable laws, rules and regulations.
(b)
Executive agrees that the general release agreement described in
Section 5.4(a) will require that Executive acknowledge, as a
condition to the payment of any benefits under Section 5.3(b), that
the payments contemplated by Section 5.3(b) (and any applicable
acceleration of vesting of an equity-based award in accordance with
the terms of such award in connection with the termination of
Executive’s employment) shall constitute the exclusive and
sole remedy for any termination of his employment, and Executive
will be required to covenant, as a condition to receiving any such
payment (and any such accelerated vesting), not to assert or pursue
any other remedies, at law or in equity, with respect to any
termination of employment. Company and Executive acknowledge
and agree that there is no duty of Executive to mitigate damages
under this Agreement. All amounts paid to Executive pursuant
to Section 5.3 shall be paid without regard to whether Executive
has taken or takes actions to mitigate damages.
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5.5
Certain Defined Terms .
(a)
As used herein, “ Accrued Obligations ”
means:
(i)
any Base Salary that had accrued but had not been paid (including
accrued and unpaid vacation time) on or before the Severance Date;
and
(ii)
any Incentive Bonus payable pursuant to Section 3.2 earned by
Executive with respect to any bonus period ending prior to the
Severance Date, to the extent such bonus has not been paid as of
the Severance Date; and
(iii)
any reimbursement due to Executive pursuant to Section 4.2 for
expenses incurred by Executive on or before the Severance
Date.
(b)
As used herein, “ Cause ” shall mean, as
reasonably determined by the Board (excluding Executive, if he is
then a member of the Board), (i) any act of personal dishonesty
taken by Executive in connection with his responsibilities as an
employee of Company which is intended to result in substantial
personal enrichment of Executive and is
