|
E XHIBIT
10.5
SEPARATION AGREEMENT
AND RELEASE
THIS SEPARATION AGREEMENT AND
RELEASE (this “Agreement”) is made by and between
Willbros USA, Inc., a Delaware corporation
(“Willbros”), and Warren L. Williams
(“Executive”) and shall become effective on the eighth
day following its execution by Executive and return to Willbros
(“Effective Date”).
PURPOSE
Willbros and Executive have
reached a mutual agreement that Executive’s employment will
terminate on August 9, 2006 (the “Termination
Date”), pursuant to the terms of this Agreement.
TERMS
To achieve a final and
amicable resolution of the employment relationship in all its
aspects and in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Severance Payment.
Executive is a participant in the Willbros Group, Inc. Severance
Plan, as amended and restated effective September 25, 2003
(the “Severance Plan”). In accordance with the terms of
the Severance Plan, Willbros shall pay Executive an amount equal to
Executive’s annual base salary or Three Hundred Fifty
Thousand Dollars ($350,000) (the “Severance Payment”).
As a result of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), the Severance Payment,
less applicable withholding taxes, shall be paid to Executive
within 60 business days following the date that Executive ceases to
provide consulting services to Willbros pursuant to the Consulting
Agreement attached hereto as Exhibit A.
2. Vesting of Restricted
Stock. Executive has been granted 26,250 shares of restricted
stock under the Willbros Group, Inc. 1996 Stock Plan, as amended
(the “1996 Stock Plan”), the ownership of which has not
yet vested in Executive pursuant to the terms of the Restricted
Stock Award Agreements evidencing such grants. Willbros agrees that
all of such shares of restricted stock granted to Executive shall
vest in full as of the Termination Date. Executive acknowledges
that withholding taxes will be due on such shares when vested on
the Termination Date. The Compensation Committee of the Board of
Directors of Willbros Group, Inc. (“WGI”), has approved
allowing Executive to satisfy the withholding requirement, in whole
or in part, by having WGI
withhold shares of restricted stock
having a Fair Market Value (as defined in the 1996 Stock Plan) on
the date the tax is to be determined equal to the minimum statutory
total tax which could be withheld on the transaction.
3. Stock Options. As a
participant in the 1996 Stock Plan, Executive has vested options to
purchase 82,150 shares of common stock of WGI at various prices.
Under the terms of the option agreements evidencing such options,
such options must be exercised within three months from the
Termination Date (but not beyond the expiration date of such
options). As of the Effective Date, the Compensation Committee of
the Board of Directors of WGI has extended the period in which
Executive may exercise each of such options to December 31,
2006, as permitted by Section 409A of the Code. Executive
acknowledges, however, that such extension of the exercise period
may cause Executive’s incentive stock options, if any, to be
treated as non-qualified stock options for federal income tax
purposes. Executive further acknowledges that any of
Executive’s incentive stock options which are exercised more
than three months after the Termination Date will be treated as
non-qualified stock options for federal income tax
purposes.
4. Consulting
Agreement. On the Effective Date, Willbros and Executive shall
enter into the Consulting Agreement attached hereto as Exhibit A,
effective as of August 10, 2006.
5. Executive’s 2005
Bonus. Executive has been awarded a bonus payable over time in
the amount of Three Hundred Fifty Thousand Dollars ($350,000) for
calendar year 2005, pursuant to the terms of that certain Key
Employee Special Bonus Agreement dated as of March 14, 2006,
between Willbros and Executive, with Two Hundred Thirty Three
Thousand Three Hundred Thirty-Four Dollars ($233,334), in the
aggregate, payable in two future installments (March 14, 2007
and March 14, 2008) subject to various conditions including
continued employment. Executive, at the sole discretion of the
President of WGI, shall be entitled to receive the remaining
installments, without interest, as compensation for providing
consulting services as set forth in the Consulting Agreement
attached hereto as Exhibit A.
6. Outstanding Loans.
Pursuant to the Employee Stock Purchase Program, Executive has two
outstanding loans from Willbros in the aggregate principal amount
of Two Hundred Fifty Thousand Dollars ($250,000), which become due
and payable 30 days following the Termination Date. Such loans are
full recourse and secured by an aggregate of 18,475 shares of
common stock of WGI (the “Shares”). Willbros and
Executive agree that the loans shall be paid in full on the
Effective
2
Date, by Executive surrendering and
transferring to Willbros Shares having a Fair Market Value (as
defined in the 1996 Stock Plan) on the Termination Date equal to
Two Hundred Fifty Thousand Dollars ($250,000). The remaining
Shares, if any, not so transferred to Willbros shall be returned to
Executive.
7. Group Health
Coverage. Executive may be eligible to continue coverage for
himself and his covered dependents in the group health plan
sponsored by Willbros pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 as amended (“COBRA”). During
the period that Executive is providing consulting services to
Willbros pursuant to the Consulting Agreement, Willbros will
reimburse the COBRA premium cost of any such continued health care
coverage for the Executive and his covered dependents under the
applicable Willbros group health plan. Executive must comply with
all eligibility requirements for COBRA continuation. Except as
specifically set forth herein, life insurance, disability and other
employee benefits made available to Executive by Willbros ended on
the Termination Date.
8. Other Benefits .
Neither this Agreement nor the release contained herein shall waive
Executive’s right to any accrued benefit under a company plan
in which he is a qualified participant, including but not limited
to any benefits under a pension or retirement plan.
9. Waiver of Reinstatement
and Future Employment . Executive forever waives and
relinquishes any right or claim to reinstatement to active
employment with Willbros, its affiliates, subsidiaries, divisions,
and successors.
10. Release by Executive
of Willbros. Except for the obligations specifically set forth
in this Agreement, Executive fully and forever relieves, releases,
and discharges Willbros, its predecessors, successors,
subsidiaries, operating units, affiliates, divisions, and the
agents, representatives, officers, directors, shareholders,
employees and attorneys of each of the foregoing, from all claims,
debts, liabilities, demands, obligations, promises, acts,
agreements, costs, expenses, damages, actions, and causes of action
whether in law or in equity, whether known or unknown, suspected or
unsuspected, arising from Executive’s employment with and
termination from Willbros, including but not limited to any and all
claims pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. , as amended by the Civil
Rights Act of 1991, which prohibits discrimination in employment
based on race, color, national origin, religion or sex; the Civil
Rights Act of 1866, 42 U.S.C.§§1981, 1983 and 1985, which
prohibits violations of civil rights; the Equal
3
Pay Act of 1963, 29 U.S.C. §
206(d)(1), which prohibits unequal pay based upon gender; the Age
Discrimination in Employment Act of 1967, as amended, and as
further amended by the Older Workers Benefit Protection Act, 29
U.S.C. § 621, et seq., which prohibits age
discrimination in employment; the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. §1001, et
seq. , which protects certain employee benefits; the Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101,
et seq. , which prohibits discrimination against the
disabled; the Family and Medical Leave Act of 1993, 29 U.S.C.
§ 2601, et seq ., which provides medical and family
leave; the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq ., including the Wage and Hour
|
