Exhibit 10.11
Employment
Agreement
This Employment Agreement (this
“ Agreement ”) is dated as of May 8, 2006,
and is made by and between InfrastruX Group, Inc., a Washington
corporation (“ Employer ”) and Michael T. Lennon
(“ Employee ”).
W I T N E S
S E T H :
WHEREAS, Employer and Employee have
entered into an Employment Agreement dated May 6, 2002
(“Prior Agreement”) pursuant to which Employer employs
the Employee; and
WHEREAS, Employer and Employee each
have determined that it is desirable to terminate the Prior
Agreement and enter into this Agreement pursuant to which Employer
agrees to continue to employ the Employee and Employee agrees to
continue providing services to the Employer upon the terms and
conditions set forth herein; and
A G R E E M
E N T S :
NOW, THEREFORE, for and in
consideration of the foregoing premises and for other good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Employer and Employee hereby agree as
follows:
This agreement shall be effective as
of May 8, 2006.
Employer will continue employing
Employee and Employee agrees to continue employment with Employer
as its President and Chief Executive Officer. Employee will have
the authority and will perform the duties customarily performed by
the President and Chief Executive Officer of a corporation which is
similar to Employer and such other duties as may be assigned from
time to time by the Board of Directors of Employer (the
“Board”), which relate to the business of Employer, its
subsidiaries, or any business ventures in which Employer or its
subsidiaries may participate. Employee shall report directly to the
Board.
So long as Employee is employed by
Employer, Employer shall nominate Employee to serve on the
Board.
Employee will devote his full
business time, ability, attention and effort to Employer’s
business and will skillfully serve its interests during the term of
this Agreement; provided , however , that Employee
may devote reasonable periods of time to (a) engaging in
personal
investment activities, (b) serving on the
board of directors of other corporations, and (c) engaging in
charitable or community service activities, so long as none of the
foregoing additional activities in (a) through
(c) materially interfere with Employee’s duties under
this Agreement.
Unless otherwise terminated pursuant
to Section 7, Employee’s term of employment under this
Agreement shall expire on the second anniversary of the date of
this Agreement (“ Expiration Date ”). This
Agreement shall automatically be renewed for successive one-year
terms unless the party wishing to terminate this Agreement does so
by providing written notice to the other party no less than six
(6) months prior to the Expiration Date. Upon renewal of this
Agreement, the term “Expiration Date” will refer to the
end of the one-year renewal period.
During the term of this Agreement,
Employer agrees to pay or cause to be paid to Employee, and
Employee agrees to accept in exchange for the services rendered
hereunder by him, the following compensation:
Employee’s compensation shall
consist, in part, of an annual base salary of $400,400 (the “
Base Salary ”) before all customary payroll
deductions. Such annual base salary shall be paid in substantially
equal installments and at the same intervals as other officers of
Employer are paid. The Board (or a committee thereof shall
determine any increases in the amount of the annual base salary in
future years.
Employee shall be eligible to
receive, in addition to the Base Salary, an annual cash bonus in an
amount to be determined by the Board, which bonus shall be based
upon the financial performance of Employer as follows:
(a) In the event Employer achieves a
level of financial performance characterized as
“in-the-money” by the Board, Employee shall receive a
bonus payment equal to 20% of the Base Salary.
(b) in the event Employer achieves a
level of financial performance characterized as
“target” by the Board, Employee shall receive a bonus
payment equal to 50% of the Base Salary.
(c) In the event Employer achieves a
level of financial performance characterized as
“outstanding” by the Board, Employee shall receive a
bonus payment equal to 80% of the Base Salary.
2
(a) The Board shall grant Employee a
combination of restricted stock units and stock appreciation rights
equal to 1.8% of the equity of the Employer on a fully diluted
basis on the date of this Agreement under the terms of
Employer’s 2006 Equity Compensation Plan Such grants shall be
subject to the vesting and exercise provisions set forth on Exhibit
A hereto.
(b) Employee, along with such other
senior management team of the Employer as selected by the Board
shall be allowed to purchase in the aggregate up to four percent
(4%) of the fully diluted membership interest in InfrastruX
Holdings, LLC, the immediate parent company of Employer, upon the
same valuation as TPF InfrastruX Holdings, LLC. The Board in
consultation with Employee shall determine the amount Employee and
each other senior management employee will be allowed to purchase,
any minimum purchase amount and any other terms of such purchase.
Such determination and investment by Employee must be made within
ninety (90) days of the date of this Agreement. As part of
such investment Employee and each other senior management employee
who exercises their right to purchase will be required to become a
party to a stockholders agreement outlining the rights and
responsibilities of the Employer’s stockholders, including
drag along and tag along rights in the event of a sale of all or a
portion, of InfrastruX Holdings LLC’s ownership interest in
Employer, as well as rights of first refusal and call rights upon
termination of employment.
During the term of this Agreement,
Employee will be entitled to participate in all benefit programs as
shall be provided or offered from time to time to senior
executive-level employees of Employer, subject to and in accordance
with applicable eligibility requirements.
Employment of Employee pursuant to
this Agreement may be terminated as follows:
With or without Cause (as defined
below), Employer may terminate the employment of Employee at any
time during the term of employment by giving written notice to
Employee. The notice shall be effective immediately if termination
is for Cause and sixty (60) days later if termination is not
for Cause.
Employee may terminate his
employment at any time, for any reason, upon giving sixty
(60) days’ prior written notice.
3
|
|
7.3
|
Automatic
Termination
|
Employee’s employment
hereunder shall terminate automatically upon the death or total
disability of Employee. The term “ total disability
” as used herein shall mean a long-term disability that
entitles Employee to receive long-term disability benefits under
the Employer’s long-term disability plan or policy applicable
to Employee, or in the absence of such a plan or policy, the
Employee’s inability to perform the duties set forth in
Section 2 hereof for a period or periods constituting ninety
(90) consecutive calendar days as a result of physical or
mental illness, loss of legal capacity or any other cause beyond
Employee’s control, unless Employee is granted a leave of
absence by the Board. Termination hereunder shall be deemed to be
effective (a) at the end of the calendar month in which
Employee’s death occurs or (b) immediately upon a
determination by the Board of Employee’s total disability, as
defined herein.
In the event of termination of the
employment of Employee, all compensation and benefits set forth in
this Agreement shall terminate except as specifically provided in
this Section 8:
|
|
8.1
|
Termination
by Employer
|
If Employer terminates
Employee’s employment without Cause prior to the Expiration
Date, Employee shall be entitled to receive (a) termination
payments equal to one year of Base Salary, and (b) any unpaid
Base Salary which has accrued for services already performed as of
the date of termination (“Termination Date”). If
Employee is terminated by Employer for Cause (as defined in
Section 8.4 below), Employee shall not be entitled to receive
any of the foregoing benefits, other than those set forth in clause
(b) above.
|
|
8.2
|
Termination
by Employee
|
(a) If Employee resigns for Good
Reason prior to the Expiration Date, Employee shall be entitled to
receive the same termination payments and unpaid annual base salary
as provided for in Section 8.1 for a termination without Cause.
“ Good Reason ” means only any one or more of
the following: (1) material breach by Employer of this
Agreement, and its failure to cure such breach within thirty
(30) days after written notice from Employee to Employer
specifying in reasonable detail the alleged breach;
(2) reduction, without Employee’s consent, of
Employee’s salary or reduction or elimination of any
compensation or benefit plan benefiting Employee, unless the
reduction or elimination of such benefit plan is generally
applicable to all senior executive-level employees (or employees of
a successor or controlling entity of Employer) and unless Employer
reinstates the compensation or benefit within thirty (30) days
after written notice from Employee; (3) assignment to
Employee, without his consent, of duties materially inconsistent
with Employee’s position, authority, duties or
responsibilities as contemplated by Sections 2 and 3 hereof (or
such higher level of position, authority, duties or
responsibilities as are subsequently assigned to Employee), which
results in a material diminution in such position, authority,
duties or responsibilities; or (4) involuntary relocation
of
4
Employee’s Primary Work Location by more
than forty-five (45) miles from Employee’s current work
location. For this purpose “Primary Work Location”
means as of any time the Employee’s primary work location in
either Bellevue, Washington or Pittsburgh, Pennsylvania as elected
by the Employee in his discretion.
(b) In the case of the termination
of Employee’s employment by Employee for other than Good
Reason, Employee shall not be entitled to any payments hereunder,
other than those set forth in clause (b) of Section 8.1
hereof.
All payments under this
Section 8 shall be made to Employee at the same interval as
payments of salary were made to Employee immediately prior to
termination.
Wherever reference is made in this
Agreement to termination being with or without Cause, “
Cause ” shall mean:
(a) willful misconduct on the part
of Employee that has a material adverse effect on Employer and its
subsidiaries, taken as a whole;
(b) Employee’s engaging in
(i) conduct which could reasonably result in his conviction of
a felony or a crime against Employer, (ii) conduct involving
fraud or moral turpitude, or (iii) substance abuse or other
misconduct which would materially compromise Employer’s
reputation or Employee’s ability to perform his
duties;
(c) unreasonable refusal by Employee
to perform the duties and responsibilities of his position in any
material respect, unless Employee cures the refusal within thirty
(30) days after receipt of written notice specifying in
reasonable detail the duties and responsibilities not being
performed; or
(d) violation of the covenants set
forth in Section 10 hereof.
No action, or failure to act, shall
be considered willful or unreasonable if the Employee did it in
good faith and with the reasonable belief that his action or
omission was in the best interests of Employer.
|
9.
|
RECORDS AND
CONFIDENTIAL DATA
|
The Employee acknowledges that, in
connection with the performance of his duties for the Employer as
an employee under the terms of this Agreement, that the Employer
has made and will make available to the Employee, or the Employee
will have access to, certain Confidential Information of the
Employer and its affiliates. The Employee acknowledges
and
5
agrees that any and all Confidential Information
learned or obtained by the Employee during the course of the
Employee’s employment by the Employer or otherwise
(including, without limitation, information that the Employee
obtained through or in connection with the Employee’s
employment with the Employer prior to the date hereof) whether
developed by the Employee alone or in conjunction with others or
otherwise, shall be and is the property of the Employer and its
affiliates.
|
|
9.2
|
Confidentiality Obligations.
|
The Employee shall at all times keep
all Confidential Information confidential and will not use such
Confidential Information other than in connection with the
Employee’s discharge of the Employee’s duties
hereunder, and will use reasonable efforts to safeguard the
Confidential Information from unauthorized disclosure. This
covenant is not