Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is made and entered into this 23
rd day
of July, 2007 (the “ Effective Date ”), by and
between Willdan Group, Inc ., a Delaware corporation
(“ Company ”), and Mallory McCamant , an
individual (“ Executive ”).
RECITALS
THE PARTIES
ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. Company and Executive
previously entered into an Employment Agreement (Restated), dated
August 1, 2006, and desire to amend and restate such agreement with
this Agreement.
B.
Company desires to employ Executive to carry out the duties
and responsibilities described below on the terms and conditions
hereinafter set forth.
C. Executive desires to accept
such employment on such terms and conditions.
D.
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 to
amend and restate in its entirety the Employment Agreement
(restated), dated August 1, 2006, between the Company and Executive
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 . Executive shall be employed in the capacity
of Chief Operations Officer of the Company. Executive shall
have all of the powers, duties and obligations as prescribed under
the Company’s amended and restated bylaws and of the type
usually vested in the office, together with such other duties as
may be assigned by the Board of Directors or by the President.
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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
Executive may then serve if the 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 Executive’s 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 Executive’s
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 in Orange County, California. Executive
further acknowledges that Executive will be required to travel from
time to time in the course of performing Executive’s duties
for Company.
2.
Employment Period . The “ Employment
Period ” shall commence on the Effective Date and end
December 31, 2008 (the “ Termination Date ”);
provided, however, that this Agreement shall be automatically
renewed, and the Employment Period shall be automatically extended
on an at-will basis thereafter until terminated pursuant to Section
5 of this Agreement. Notwithstanding the foregoing, the
Employment Period is subject to earlier termination as provided
below in this Agreement. Termination of employment shall not
be considered a breach of 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 through
December 31, 2008, shall be at an annualized rate of Two Hundred
Five Thousand Dollars ($205,000). Thereafter, Company will
review Executive’s Base Salary at least annually and may
adjust Executive’s Base Salary from the rate then in effect,
based on such review. Such adjustment shall be subject to the
approval of the Company’s Compensation Committee.
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3.2
Incentive Bonus . During the Employment Period,
Executive shall be eligible to receive an annual incentive bonus
(“ Incentive Bonus ”), determined annually by
Company on the basis of individual and Company performance
objectives mutually agreed upon by Company and Executive, subject
to approval of the Company’s Compensation Committee.
The Incentive Bonus amount may range from no bonus up to a maximum
of fifty percent (50%) of Executive’s base salary. 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.
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 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
Paid and Other Leave . During the Employment Period,
Executive shall accrue and be entitled to take paid leave in
accordance with Company’s leave policies in effect from time
to time. Executive shall also be entitled to all holiday and
leave pay generally available to other highly compensated employees
of Company. Executive shall accrue 25 days per year towards the
paid leave bank.
4.4
Automobile Expenses . During the Employment Period,
the Company shall provide Executive with an automobile allowance of
$940 per month. This is provided in lieu of any and all other
reimbursements for automobile expenses, except for automobile
rental for out-of-town business related travel.
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 thirty (30) 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 fourteen (14) 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.
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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 Executive’s
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, and the provisions of Section
22, severance pay in an amount equal to Executive’s Base
Salary at the annual rate in effect on the Severance Date for the
period (the “ Severance Period ”) commencing on
the Severance Date and ending on the later of (i) the date that is
six months after the Severance Date and (ii) the Termination Date
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 Executive’s
obligations under Section 6, 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).
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)
or similar plan. 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.
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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 Executive’s last day of employment with Company,
provide Company with a valid, executed general release agreement in
a form reasonably 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 Executive’s 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.
5.5
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.
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(b)
As used herein, “ Cause ” shall mean, as
reasonably determined by the Board (excluding Executive, if
Executive is then a member of the Board), (i) any act of personal
dishonesty taken by Executive in connection with Executive’s
responsibilities as an employee of Company which is intended to
result in substantial personal enrichment of Executive and is
reasonably likely to result in material harm to Company, (ii)
Executive’s commission of a felony, (iii) a willful act by
Executive which constitut
