Exhibit 10.6
INFRASTRUX GROUP,
INC.
2007 EQUITY INCENTIVE
PLAN
ARTICLE 1.
PURPOSE
The purpose of the InfrastruX Group
Inc. 2007 Equity Incentive Plan (the “ Plan ”)
is to promote the success and enhance the value of InfrastruX Group
Inc. (the “ Company ”) by linking the personal
interests of its Employees to those of Company stockholders and by
providing such individuals with an incentive for outstanding
performance to generate superior returns to Company stockholders.
The Plan is further intended to provide flexibility to the Company
in its ability to motivate, attract, and retain the services of
Employees upon whose judgment, interest, and special effort the
successful conduct of the Company’s operation is largely
dependent.
ARTICLE 2.
DEFINITIONS AND
CONSTRUCTION
Wherever the following terms are
used in the Plan they shall have the meanings specified below,
unless the context clearly indicates otherwise. The singular
pronoun shall include the plural where the context so
indicates.
2.1 “
Award ” means a Stock Appreciation Right award, a
Restricted Stock Unit or Bonus award granted to a Participant
pursuant to the Plan.
2.2 “
Award Agreement ” means any written agreement,
contract, or other instrument or document evidencing an Award,
including through electronic medium.
2.3 “
Board ” means the Board of Directors of the
Company.
2.4 “
Bonus ” means a cash or Stock award based on such
performance criteria as the Committee may establish, including
Cumulative Proceeds or a Transaction.
2.5 “
Cause ” shall mean a Participant’s
(i) willful misconduct, (ii) willfully engaging in
conduct which could reasonably result in a conviction of a felony
or a crime against the Company or conduct involving substance
abuse, fraud or moral turpitude, or which would materially
compromise the Company’s reputation or Participant’s
ability to perform his duties, as determined by the Company, or
(iii) unreasonable refusal to perform Participant’s
duties and responsibilities in any material respect, after receipt
of written notice specifying in reasonable detail the duties and
responsibilities not being performed. Cause as defined above shall
be determined in good faith by the Committee (or such officer as
the Committee shall delegate such duties) in its sole and exclusive
discretion. Notwithstanding the foregoing, if a Participant is a
party to an employment agreement with the Company or any Affiliates
(or other agreement with the Company or any Affiliate defining
“cause” for this purpose), then “Cause”
shall have the meaning defined in such applicable
agreement.
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2.6 “
Change in Control ” means the occurrence of
(a) any transaction or series of transactions which within a
12-month period constitute a change in control where (i) more
than 50% of the then outstanding shares of the Company’s
common stock are (for cash, property (including, without
limitation, stock in any corporation), or indebtedness, or any
combination thereof) redeemed by the Company or purchased by any
person(s), firm(s) or entity(ies), or exchanged for shares in any
other corporation not affiliated with the Company, or any
combination of such redemption, purchase or exchange, or
(ii) more than 50% of the Company’s assets are purchased
by any person(s), firm(s) or entity(ies) not affiliated with the
Company for cash, property (including, without limitation, stock in
any corporation) or indebtedness or any combination thereof, or
(iii) the Company is merged or consolidated with another
corporation regardless of whether the Company is the survivor
(except any such transaction solely for the purpose of changing the
Company’s domicile or which does not change the ultimate
beneficial ownership of the equity interests in the Company), or
(b) any substantial equivalent of any such redemption,
purchase, exchange, change, transaction or series of transactions,
acquisition, merger or consolidation constituting such a change in
control; in each case where following such transactions the Parent
or affiliates thereof do not own 50% or more of the outstanding
equity of the Company, any purchaser of assets or Stock or the
successor or surviving entity. For purposes hereof, the term
“control” shall have the meaning ascribed thereto under
the Securities Exchange Act of 1934, as amended and the regulations
thereunder. For purposes of clause (a)(ii) above or as appropriate
for purposes of clause (b) above, the Company shall be deemed
to include on a consolidated basis all subsidiaries and other
affiliated corporations or other entities with the same effect as
if they were divisions. Notwithstanding anything to the contrary,
no Change in Control shall occur by reason of the Company’s
contribution of assets to a JV, but a Change in Control will be
deemed to occur if Participant becomes employed by a JV in the
event of (A) a sale of 50% or more of the interests to a party
other than the Company, Parent, or the JV Partners or any
affiliates thereof, or (B) a sale of substantially all of the
assets of a JV to a person, group or entity other than a JV
Partners or their affiliates. The Committee shall have full and
final authority, which shall be exercised in its discretion, to
determine conclusively whether a Change in Control has occurred
pursuant to the above definition, and the date of the occurrence of
such Change in Control and any incidental matters relating
thereto.
2.7 “
Code ” means the Internal Revenue Code of 1986, as
amended.
2.8 “
Committee ” means the committee of the Board described
in Article 9.
2.9 “
Cumulative Proceeds ” shall mean the sum (without
duplication) of (a) Realized Cumulative Proceeds and (b) Unrealized
Proceeds. Realized Cumulative Proceeds shall mean the sum of (i)
the aggregate fair market value of the consideration actually
received by Tenaska in connection with one or more Transactions,
after taking into account all expenses, post closing adjustments,
and assuming exercise of all options and warrants to purchase
equity securities of the Company outstanding as of the effective
date of any such Transactions and (ii) the amount of cash dividends
or other distributions and any management or similar fees Tenaska
received from the Company from time to time. Unrealized Proceeds
shall mean, with respect to an initial public offering of the
Company’s, the JV’s, Parent’s or a
Subsidiary’s equity securities pursuant
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to a registration statement filed under the
Securities Act (“IPO”), the fair market value of
Tenaska’s Investment based on the market value of the Parent,
the Company, the JV and its Subsidiaries based on (i) the
offering price of the equity securities sold to the public in the
IPO, or (ii) after an IPO, an average closing price for such
equity securities for any consecutive 30 day period; provided
further, that the fair market value of any non-cash consideration
(including stock) received in a Transaction other than an IPO shall
be determined by the Board in good faith as of the date of such
Transaction.
2.10 “
Disability ” means that the Participant qualifies to
receive long-term disability payments under the Company’s
long-term disability insurance program, as it may be amended from
time to time.
2.11 “
Effective Date ” shall have the meaning set forth in
Section 11.1.
2.12 “
Employee ” means any officer or other employee (as
defined in accordance with Section 3401(c) of the Code) of the
Company or any Subsidiary.
2.13 “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
2.14 “
Fair Market Value ” means, as of any given date,
(a) if Stock is traded on an exchange, the closing price of a
share of Stock as reported in the Wall Street Journal for
the first trading date immediately prior to such date during which
a sale occurred; or (b) if Stock is not traded on an exchange
but is quoted on NASDAQ or a successor or other quotation system,
(i) the last sales price (if Stock is then listed as a
National Market Issue under the NASD National Market System) or
(ii) the mean between the closing representative bid and asked
prices (in all other cases) for the Stock on the date immediately
prior to such date on which sales prices or bid and asked prices,
as applicable, are reported by NASDAQ or such successor quotation
system; or (c) if Stock is not publicly traded, as determined
in good faith by the Committee; provided, however, Fair Market
Value shall never be less than as provided under Section 409A
of the Code and any regulations promulgated thereunder.
2.15 “
Investment ” means the total of all funds invested by
Tenaska in equity securities of the Company, whether directly or
through conversion of debt into equity securities.
2.16 “
JV ” means a joint venture, the management and control
of which is controlled by the Company or Parent.
2.17 “
JV Partners ” means the partners or other equity
holders in the JV, other than the Company or Parent.
2.18 “
Parent ” means InfrastruX Holdings, LLC, a Delaware
limited liability company.
2.19 “
Participant ” means any individual who, as a member of
the Board, Consultant or Employee, has been granted an Award
pursuant to the Plan.
2.20 “
Plan ” means this InfrastruX Group, Inc. 2007 Equity
Incentive Plan, as it may be amended from time to time.
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2.21 “
Public Trading Date ” means the first date upon which
Stock is listed (or approved for listing) upon notice of issuance
on any securities exchange or designated (or approved for
designation) upon notice of issuance as a national market security
on an interdealer quotation system.
2.22 “
Restricted Stock Unit ” means an Award granted
pursuant to Section 6.1.
2.23 “
Securities Act ” shall mean the Securities Act of
1933, as amended.
2.24 “
Stock ” means the common stock of the Company, par
value $0.01 per share, and such other securities of the Company
that may be substituted for Stock pursuant to
Article 8.
2.25 “
Stock Appreciation Right ” or “ SAR
” means a right granted pursuant to Article 5 to receive a
payment equal to the excess of the Fair Market Value of a specified
number of shares of Stock on the date the SAR is exercised over the
Fair Market Value of such shares on the date the SAR was granted as
set forth in the applicable Award Agreement.
2.26 “
Subsidiary ” means any “subsidiary
corporation” as defined in Section 424(f) of the Code
and any applicable regulations promulgated thereunder or any other
entity of which a majority of the outstanding voting stock or
voting power is beneficially owned directly or indirectly by the
Company.
2.27 “
Tenaska ” means Tenaska Power Fund, LP, a Delaware
limited partnership and any affiliate thereof.
2.28 “
Termination of Service ” shall mean the time when the
employee-employer relationship between Participant and the Company,
Parent, a Subsidiary or JV is terminated for any reason, with or
without cause, including, but not by way of limitation, a
termination by resignation, discharge, death, or disability; but
excluding (a) a termination where there is a simultaneous
reemployment or continuing employment of Participant by the
Company, Parent, a Subsidiary or JV; (b) at the sole
discretion of the Committee, a termination which results in a
temporary severance of the employee-employer relationship; and
(c) at the sole discretion of the Committee, a termination
which is followed by the simultaneous establishment of a consulting
relationship by the Company, Parent, a Subsidiary or JV with
Participant. The Committee, in its sole discretion, shall determine
the effect of all matters and questions relating to Termination of
Service, including, but not by way of limitation, the question of
whether a Termination of Service resulted from a discharge for
Cause, and all questions of whether a particular leave of absence
constitutes a Termination of Service.
2.29 “
Transaction ” means a Change in Control,
recapitalization of the Company or an IPO.
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ARTICLE 3.
SHARES SUBJECT TO THE
PLAN
3.1
Number of Shares . Subject to Article 8 and this
Section 3.1, the aggregate number of shares of Stock which may
be issued or transferred pursuant to Awards under the Plan is
5,400,000. To the extent that an Award terminates, expires, or
lapses for any reason, any shares of Stock subject to the Award
shall again be available for the grant of an Award pursuant to the
Plan. Additionally, any shares of Stock tendered or withheld to
satisfy any tax withholding obligation pursuant to any Award shall
again be available for the grant of an Award pursuant to the
Plan.
3.2 Stock
Distributed . Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock,
treasury Stock or Stock purchased on the open market.
ARTICLE 4.
ELIGIBILITY AND
PARTICIPATION
4.1
Eligibility . Each Employee selected to become a Participant
shall be eligible to be granted one or more Awards pursuant to the
Plan.
4.2
Participation . Subject to the provisions of the Plan, the
Committee may, from time to time, select Employees to whom Awards
shall be granted and shall determine the nature and amount of each
Award. No Employee shall have any right to be granted an Award
pursuant to this Plan.
ARTICLE 5.
STOCK APPRECIATION
RIGHTS
5.1 Grant
of Stock Appreciation Rights .
(a) A Stock
Appreciation Right may be granted to any Participant selected by
the Committee. A Stock Appreciation Right shall be subject to such
terms and conditions not inconsistent with the Plan as the
Committee shall impose and shall be evidenced by an Award
Agreement.
(b) A Stock
Appreciation Right shall entitle the Participant (or other person
entitled to exercise the Stock Appreciation Right pursuant to the
Plan) to exercise all or a specified portion of the Stock
Appreciation Right (to the extent then exercisable pursuant to its
terms) and to receive from the Company an amount equal to the
product of (i) the excess of (A) the Fair Market Value of
the Stock on the date the Stock Appreciation Right is exercised
over (B) the Fair Market Value of the Stock on the date the
Stock Appreciation Right was granted and (ii) the number of
shares of Stock with respect to which the Stock Appreciation Right
is exercised, subject to any limitations the Committee may
impose.
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5.2
Payment on Exercise . Payment of the amounts determined
under Sections 5.1(b) above shall be made in Stock (based on its
Fair Market Value as of the date the Stock Appreciation Right is
exercised) as determined by the Committee in the Award
Agreement.
ARTICLE 6.
RESTRICTED STOCK
UNITS
6.1
Restricted Stock Units . The Committee is authorized to make
Awards of Restricted Stock Units to any Participant selected by the
Committee in such amounts and subject to such terms and conditions
as determined by the Committee. At the time of grant, the Committee
shall specify the date or dates on which the Restricted Stock Units
shall become fully vested and nonforfeitable, and may specify such
conditions to vesting as it deems appropriate. At the time of
grant, the Committee shall specify when the shares of Stock are
deliverable with respect to vested Restricted Stock Units (the
“Delivery Date”). On the Delivery Date, the Company
shall, subject to Section 7.4(b), transfer to the Participant
one share of Stock for each Restricted Stock Unit scheduled to be
paid out on such date and not previously forfeited.
6.2
Term . Except as otherwise provided herein, the term of any
Restricted Stock Units shall be set by the Committee in its
discretion.
6.3 Form
of Payment . Payments with respect to any Awards of Restricted
Stock Units shall be made in Stock as determined by the
Committee.
6.4 Award
Agreement . All Awards of Restricted Stock Units shall be
subject to such additional terms and conditions as determined by
the Committee and shall be evidenced by an Award
Agreement.
ARTICLE 7.
PROVISIONS APPLICABLE TO
AWARDS
7.1 Award
Agreement . Awards under the Plan shall be evidenced by Award
Agreements that set forth the terms, conditions and limitations for
each Award, which may include the term of an Award, the provisions
applicable in the event the Participant’s employment or
service terminates, and the Company’s authority to
unilatera
