Exhibit 10.10
STOCKHOLDERS
AGREEMENT
OF
INFRASTRUX GROUP,
INC.
This Stockholders Agreement (“
Agreement ”) is entered into as of this 12th day of
December, 2007, by and among InfrastruX Group, Inc., a Washington
corporation (the “ Company ”), InfrastruX
Holdings, LLC, a Delaware limited liability company (together with
any Affiliate transferee(s) of such company, the “ Tenaska
Stockholder ”), and the Persons listed on the signature
pages attached hereto (each individually, a “Management
Stockholder ,” and collectively, the “
Management Stockholders ”). These parties are
sometimes referred to herein individually by name or as a “
Party ” and collectively as the “
Parties. ” The Tenaska Stockholder, together with
(i) any Affiliate (as defined below) of the Tenaska
Stockholder to which any Tenaska Stockholder may hereafter sell,
assign, transfer, convey, pledge or otherwise dispose of
(collectively, “ Transfer ”) any equity
securities of the Company (the “Equity
Securities” ), including any shares of Common Stock of
the Company, par value $0.01 per share (the “ Common
Stock ”) and (ii) any Affiliates (as defined below)
of the Tenaska Stockholder to which the Company may hereafter issue
Equity Securities are sometimes collectively referred to herein as
the “ Tenaska Stockholders. ” For purposes of
this Agreement, “ Affiliate ” shall mean, with
respect to any individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority
or other entity of whatever nature (each, a “ Person
”), any other Person directly or indirectly controlling,
controlled by, or under common control with, such Person where
“control” shall have the meaning given such term under
Rule 405 of the Securities Act of 1933, as amended (the “
Act ”).
RECITALS
:
WHEREAS, each of the Management
Stockholders is an employee, executive officer or director of or
consultant to the Company or one or more subsidiaries of the
Company;
WHEREAS, the Company may hereafter
issue to each Management Stockholder shares of Common Stock as a
result of the settlement of stock appreciation rights (“
SARs ”) and restricted stock units (“
RSUs ”) granted pursuant to the InfrastruX Group, Inc.
2007 Equity Incentive Plan (the “ Equity Plan ”)
or any other employee benefit plan or stock purchase plan hereafter
adopted by the board of directors of the Company (the “
Board of Directors ”) (each, a “ Purchase
Plan ”);
WHEREAS, the Company may sell and a
Management Stockholder may purchase shares of Common Stock not
under any Purchase Plan or the Equity Plan (the “
Purchased Shares ”); and
WHEREAS, the Company, the Tenaska
Stockholder and the Management Stockholders desire to enter into
this Agreement to provide for certain matters with respect to the
ownership and transfer by the Management Stockholders of the shares
of Common Stock acquired upon settlement of SARs and RSUs (“
Equity Plan Shares ”), Purchased Shares and
any
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other shares now or hereafter issued or sold to
any Management Stockholders (collectively, the “
Restricted Securities ”).
AGREEMENT
:
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements set forth herein, and other
good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1.
Restrictions on Transfers .
(a) Except as
otherwise expressly permitted by Section 1(b) or otherwise
under this Agreement, the Management Stockholders shall not
Transfer any Restricted Securities. Any purported Transfer in
violation of the provisions of this Section 1 shall be null
and void and shall have no force or effect.
(b) Nothing
in Section 1(a) shall prevent the Transfer of any Restricted
Securities by any Management Stockholder to (i) the Company,
the Tenaska Stockholder or any Affiliate of either; (ii) such
Management Stockholder’s spouse, children or trusts for their
benefit provided the Management Stockholder retains the sole and
exclusive right to vote and dispose of any Restricted Securities
transferred to the family member or trust; and (iii) upon a
Management Stockholder’s death, the Management
Stockholder’s executors, administrators, testamentary
trustees, legatees and beneficiaries.
(c) Each
Management Stockholder agrees that, as a condition precedent to any
transfer described in Section 1(b), each transferee described
in Section 1(b) (other than the Company, the Tenaska
Stockholders or any Affiliate of any of them) shall deliver to the
Company a copy of this Agreement signed by such transferee together
with such other documentation as may be reasonably requested by the
Company.
Section 2.
Rights
to Repurchase Shares .
(a) For a
period of nine (9) months following the later of (i) the
Termination of Directorship (as defined below) of any Management
Stockholder who is a Director, the Termination of Consultancy (as
defined below) of any Management Stockholder who is a consultant to
the Company or its Subsidiaries (as defined below) or the
Termination of Employment (as defined below) of any Management
Stockholder who is an employee of the Company or its Subsidiaries
(as defined below), (ii) the exercise, in accordance with the
terms of the Equity Plan or the applicable SAR agreement issued
thereunder, of all vested SARs (the “Vested
SARs” ) held by such Management Stockholder as of the
time of such Management Stockholder’s Termination of
Employment, Termination of Consultancy or Termination of
Directorship, or (iii) the payment, in accordance with the
terms of the Equity Plan or the applicable RSU agreement issued
thereunder, of any vested RSUs (the “Vested
RSUs,” and together with Vested SARS, the
“Vested Awards” ) held by such Management
Stockholder as of the time of such Management Stockholder’s
Termination of Employment, Termination of Consultancy or
Termination of Directorship, the Company may elect, but shall not
be required
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(other than in the event of death as described
below), to repurchase or to designate one or more Persons to
purchase Restricted Securities held by such Management Stockholder
or his or her successor in interest thereunder (“ Call
Right ”). If the Termination of Employment, Termination
of Consultancy or Termination of Directorship is by reason of
death, the Management Stockholder by written notice to the Company
given by the Management Stockholder’s executor or beneficiary
in accordance with Section 8(g) of this Agreement not less
than five (5) days prior to the last date on which the Call
Right may be exercised by the Company, may cause at his/her
election the Company to exercise its Call Right, and such exercise
shall be mandatory and not discretionary. The Call Right shall be
exercised by written notice (“ Call Notice ”) to
the Management Stockholder given in accordance with
Section 8(g) of this Agreement on or prior to the last date on
which the Call Right may be exercised by the Company.
Notwithstanding the foregoing, there shall be no right to
repurchase a Management Stockholder’s Restricted Securities
if there occurs a Termination of Directorship but such holder
continues to be employed by the Company or one of its Subsidiaries.
For purposes of this Agreement, “Subsidiary” means any
“subsidiary corporation” as defined in
Section 424(f) of the Code and any applicable regulations
promulgated thereunder.
(b) The
repurchase price for Restricted Securities payable by the Company
or its designee upon exercise of the Call Right (collectively
referred to as the “ Repurchase Price ”) shall
be as follows:
(i) in the
event of any Termination of Employment, Termination of Consultancy
or Termination of Directorship by the Company or any of its
Subsidiaries, as applicable, other than (A) for Cause (as
defined below), or (B) by reason of the Management
Stockholder’s resignation without Good Reason (as defined
below), the Fair Market Value (as such term is defined in
Section 2(f) below) of the Restricted Securities subject to
the Call Right on the date of the Call Notice;
(ii) in the
event of any Termination of Employment, Termination of Consultancy
or Termination of Directorship by the Company or any of its
Subsidiaries, as applicable, for Cause, the lesser of (A) the
Fair Market Value (as such term is defined in Section 2(f)
below) of the Restricted Securities subject to the Call Right on
the date of the Call Notice and (B) with respect to Purchased
Shares, the aggregate price paid for any Purchased Shares by the
Management Stockholder or, with respect to Equity Plan Shares, the
Fair Market Value (as such term is defined in Section 2(f)
below) of the Equity Plan Shares on the date such shares were
delivered in settlement of the SAR or RSU applicable thereto;
and
(iii) in the
event of any Termination of Employment, Termination of Consultancy
or Termination of Directorship by the Company or any of its
Subsidiaries, as applicable, by reason of resignation without Good
Reason, ninety-five percent (95%) of the Fair Market Value (as
such term is defined in Section 2(f) below) of the Restricted
Securities subject to the Call Right on the date of the Call
Notice.
(c) For
purposes of this Agreement, “ Termination of
Employment ” shall mean the time when the
employee-employer relationship between a Management Stockholder and
the
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Company, InfrastruX Holdings, LLC (“
Parent ”), a Subsidiary or a Joint Venture in which
the Company or Parent controls the management (“ Joint
Venture ”) is terminated for any reason, with or without
Cause, including, but not by way of limitation, a termination by
resignation, discharge, death, Disability or retirement, but
excluding a termination where there is a simultaneous reemployment
by the Company, Parent, a Subsidiary or a Joint Venture as an
employee or consultant. For purposes of this Agreement, “
Termination of Consultancy ” shall mean the time when
the engagement of a Management Stockholder as a consultant to the
Company, Parent, any Subsidiary or Joint Venture is terminated for
any reason, with or without Cause, including, but not by way of
limitation, by resignation, discharge, death, Disability or
retirement, but excluding terminations where there is simultaneous
reemployment by the Company or one of its Subsidiaries as an
employee or consultant. For purposes of this Agreement, “
Termination of Directorship ” shall mean the time when
a Management Stockholder ceases to be a member of the Board of
Directors of the Company or one of its Subsidiaries (“
Director ”) for any reason, including, but not by way
of limitation, a termination by resignation, failure to be elected,
death or retirement, but excluding terminations where there is
simultaneous employment by the Company or one of its Subsidiaries
as an employee or consultant. “ Cause ” shall
mean the Management Stockholder’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 the Management Stockholder’s ability to perform
his or her duties, as determined by the Company, or
(iii) unreasonable refusal to perform his or her 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 Board of Directors or
Compensation Committee in its sole and exclusive discretion.
Notwithstanding the foregoing, if a Management Stockholder is a
party to an employment agreement with the Company or any of its
affiliates (or other agreement with the Company or any affiliate
defining “cause” for this purpose), then “
Cause ” shall have the meaning defined in the
applicable agreement of the Management Stockholder. “
Disability ” shall have the meaning given such term in
Section 22(e) of the Internal Revenue Code of 1986, as
amended, or, if the Management Stockholder is a party to a written
employment agreement with the Company or any of its Subsidiaries,
then as such term is defined in the applicable agreement of the
Management Stockholder. “ Good Reason ” shall
mean, resignation or other voluntary termination of employment by a
Management Stockholder (i) within the two week period
immediately following a permanent material reduction of the
Management Stockholder’s duties and responsibilities or a
permanent change in the Management Stockholder’s duties and
responsibilities such that the Management Stockholder’s
duties and responsibilities are materially inconsistent with the
type of duties and responsibilities of the Management Stockholder
in effect immediately prior to such reduction or change,
(ii) following a material reduction in the Management
Stockholder’s compensation or employee benefits if such
reduction results in the Management Stockholder receiving
compensation and benefits which are, in the aggregate, materially
less than the compensation and benefits then currently received by
the Management Stockholder (other than reductions of compensation
or benefits applicable to management employees of the Company in
general), or (iii) in connection with a relocation by the
Company without Management Stockholder’s consent of
Management Stockholder’s principal location of employment by
more than fifty (50) miles, or if the
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Management Stockholder is a party to a written
employment agreement with the Company or any of its Subsidiaries,
then as such term is defined in the applicable agreement of such
Management Stockholder. The committee appointed to administer the
Equity Plan (the “ Compensation Committee ”) or
the Board of Directors shall determine the effect of all matters
and questions relating to Termination of Employment, Termination of
Consultancy or Termination of Directorship.
(d) The
repurchase of Restricted Securities pursuant to the exercise of a
Call Right shall take place on the later of (i) the date
specified by the Company which shall in no event be later than
sixty (60) days following the date of the Call Notice and
(ii) the date falling not more than ten (10) days
following the receipt by the Company of all necessary governmental
approvals relating thereto. On such date, the Management
Stockholder shall transfer the Restricted Securities subject to the
Call Notice to the Company or its designee, free and clear of all
liens and encumbrances (other than those applied to the Company or
its affiliates), by delivering to the Company the certificates
representing the Restricted Securities to be purchased, duly
endorsed for transfer to the Company or its designee or accompanied
by a stock power duly executed in blank, and the Company or its
designee shall pay to the Management Stockholder the Repurchase
Price. The Company and the Management Stockholder each shall use
his, her or its reasonable efforts to expedite all proceedings
contemplated hereunder to obtain a determination of the Repurchase
Price of the Restricted Securities at the earliest practicable
date.
(e) (i) In
the case of any transfer of title or beneficial ownership of
Restricted Securities upon default, foreclosure, forfeit, divorce,
court order or otherwise, other than by a voluntary decision on the
part of a Management Stockholder including a transfer under a
testamentary instrument (each, an “ Involuntary
Transfer ”), the Management Stockholder shall promptly
(but in no event later than two (2) business days after the
Involuntary Transfer) furnish written notice (the “
Involuntary Transfer Notice ”) to the Company
indicating that the Involuntary Transfer has occurred, specifying
the name of the Person to whom the shares were transferred (the
“ Involuntary Transferee ”), giving a detailed
description of the circumstances giving rise to, and stating the
legal basis for, the Involuntary Transfer.
(ii) Upon the
receipt of the Involuntary Transfer Notice, and for sixty
(60) days thereafter, the Company shall have the right to
elect to repurchase or to cause its designee to purchase, and the
Involuntary Transferee shall have the obligation to sell, all (but
not less than all) of the Restricted Securities acquired by the
Involuntary Transferee for a repurchase price equal to the Fair
Market Value of such Restricted Securities as of the date of the
Involuntary Transfer (the “ Involuntary Transfer
Repurchase Price ” and such right, the “
Involuntary Transfer Repurchase Right ”). The
Involuntary Transfer Repurchase Right shall be exercised by written
notice (the “ Involuntary Transfer Repurchase Notice
”) to the Involuntary Transferee given in accordance with
Section 8(g) of this Agreement on or prior to the last date on
which the Involuntary Transfer Repurchase Right may be exercised by
the Company.
(iii) The
repurchase of Restricted Securities pursuant to the exercise of the
Involuntary Transfer Repurchase Right shall take place on the later
of (i) the date
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specified by the Company which shall in no event
be later than sixty (60) days following the date of the
Involuntary Transfer Repurchase Notice, and (ii) within ten
(10) days following the receipt by the Company of all
necessary governmental approvals. On such date, the Involuntary
Transferee shall transfer the Restricted Securities subject to the
Involuntary Transfer Repurchase Notice to the Company or its
designee, free and clear of all liens and encumbrances, by
delivering to the Company the certificates representing the
Restricted Securities to be purchased, duly endorsed for transfer
to the Company or its designee or accompanied by a stock power duly
executed in blank, and the Company or its designee shall pay to the
Involuntary Transferee the Involuntary Transfer Repurchase Price.
The Company and the Involuntary Transferee each shall use his, her
or its reasonable efforts to expedite all proceedings contemplated
hereunder to obtain a determination of the Involuntary Transfer
Repurchase Price of the Restricted Securities at the earliest
practicable date.
(f) The Fair
Market Value of the Restricted Securities shall be determined by
the Board of Directors as follows:
(i) if the
Common Stock is listed on one or more National Securities Exchanges
(within the meaning of the Securities Exchange Act of 1934, as
amended), each Restricted Security to be repurchased shall be
valued at the average closing price of a share of Common Stock on
the principal exchange on which shares of Common Stock are then
trading, on the twenty (20) trading days immediately preceding
such date;
(ii) if the
Common Stock is not traded on a National Securities Exchange but is
quoted on the NASDAQ Stock Market or a successor quotation system
and the Common Stock
