EXHIBIT 10.9
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the 1st day of January, 1997, by and among
Willbros Engineers, Inc. ("Employer"), a Delaware, U.S.A.,
corporation; Xxxxx X. Xxxxxxx ("Employee"); and Willbros Group,
Inc. ("WGI"), a Republic of Panama corporation.
R E C I T A L S
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A. Employee is currently President of Employer.
B. Employer is, indirectly, a wholly owned subsidiary of
WGI.
C. Employee is one of the senior executives of a group of
companies comprised of WGI and its subsidiaries, including
Employer (collectively, "Willbros").
D. Employer and Employee wish to establish conditions and
incentives for the continuation of Employee's employment with
Employer.
E. WGI expects to derive, indirectly, substantial benefit
from the continuation of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the above recitals and
the mutual covenants herein contained, the parties hereto,
intending to be legally bound, agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and
Employee hereby accepts employment with Employer, upon the terms
and conditions hereinafter set forth.
2. TERM. This Agreement, except as otherwise provided in
Paragraph 9, 10, 12, 14 or 15 below, shall be effective for the
period beginning on January 1, 1997, and ending on December 31,
1998. If a Change of Control (as defined in Paragraph 14(b)
below) occurs prior to December 31, 1998, Employee shall be
entitled to the severance payments specified in Paragraph 14
unless Employee and Employer enter into a mutually acceptable
employment agreement providing for the employment of Employee
(including appropriate incentive compensation arrangements on
terms not less favorable to Employee than those which apply to
calendar year 1998 pursuant to Paragraph 5 below) during the
three (3) year period commencing on January 1, 1999.
3. DUTIES. Employee shall serve as President of Employer,
subject at all times to the direction of Employer's Board of
Directors, and shall fulfill the duties customarily incident to
such position in the pipeline and related facility construction
and engineering industry. Employee shall devote substantially
all of his business time and attention and his best efforts to
the performance of his duties hereunder. The foregoing
notwithstanding, Employer and Employee recognize and agree that
Employee may engage in passive personal investments, the
performance of business or managerial duties generally consistent
with those currently being performed by Employee in connection
with such investments and such other business activities as do
not conflict with the business and affairs of Employer or
interfere with Employee's performance of his duties hereunder.
4. COMPENSATION. As compensation for the performance by
Employee of the duties specified herein, Employee shall be paid
as follows during the term of this Agreement:
(a) Employee shall receive an annual base salary equal
to Employee's total annual base salary currently in effect
with his present Willbros employer ("Base Salary"), payable
in equal semi-monthly installments. Employer's Board of
Directors shall review such Base Salary at least annually
and may increase, but not decrease, such Base Salary at any
time, taking into account performance, experience, economic
circumstances and other relevant factors. Employee's Base
Salary shall not at any time be less than Employee's total
annual Base Salary currently in effect with his present
Willbros employer, adjusted for cost of living increases.
(b) Subject to Paragraph 5 below, Employee may receive
bonuses at the discretion of the Board of Directors of
Employer at any time.
(c) All salary and bonus payments to Employee shall be
subject to normal payroll withholding tax deductions.
5. INCENTIVE PLAN. Employee shall be eligible to
participate in that certain Willbros Engineers, Inc. Management
Incentive Plan dated January 1, 1996 (as the same may be amended
from time to time, the "Incentive Plan") during calendar years
1997 and 1998.
6. OTHER EMPLOYMENT BENEFITS. Employee shall be entitled
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to participate in any group insurance or other employee benefit plan
generally available to other executives of Employer, upon
terms generally applicable to other executives of Employer
or upon such other terms as Employert such different terms
are not less favorable to Employee.
7. EXPENSES. In addition to the compensation described in
Paragraphs 4 and 5 above, Employee shall be entitled to
reimbursement of Employee's actual out-of-pocket expenses
incurred in the conduct of Employer's business, all of which
expenses shall be limited to ordinary and necessary items and
shall be supported by vouchers, receipts or similar documentation
to the extent practicable and required by law.
8. VACATIONS. Employee shall be entitled to an annual
vacation with pay, in accordance with Employer's policies
generally applicable to its executives, at such times as will not
unduly interfere with or hamper the operation of Employer's
business.
9. CONFIDENTIALITY. Employee covenants and agrees that,
during and for a period of two (2) years after termination of
Employee's employment with Employer, Employee shall not furnish,
disclose or make accessible to any person, entity or governmental
authority, any knowledge or information, trade secrets, customer
information or lists, supplier information or lists, plans,
devices, material or financial or other information with respect
to the business of Willbros or any secret, confidential or
sensitive research or development work, promotions, ideas,
opportunities, business plans or designs relating to the business
of Willbros, except as may be necessary in the furtherance and
conduct of Willbros' business and except as may otherwise be
required by law. The prohibitions of this Paragraph 9 shall not
apply, however, to information in the public domain (but only if
the same becomes part of the public domain through a means other
than a disclosure prohibited hereunder). The provisions of this
Paragraph 9 shall survive expiration or termination of this
Agreement.
10. NON-COMPETITION. In the event Employee voluntarily
terminates his employment hereunder or retires during the term of
this Agreement, Employer may, by written notice provided to
Employee on or before the effective date of Employee's
termination, elect to require Employee to comply with the
non-competition provisions of this Paragraph 10. If Employer
provides such notice, Employee, for a period of two (2) years
from the date of his termination or retirement, will not compete,
directly or indirectly, with the businesses being conducted by
Willbros on the date of such termination or retirement in the
countries where Willbros is then conducting business, and
Employer will pay Employee on the first business day of each
month during such two (2) year non-compete period an amount equal
to one twenty-fourth (1/24) of Employee's annual Base Salary in
effect on Employee's date of termination or retirement. Such
payments shall be
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regarded solely as consideration for Employee's compliance with
the requirements of this Paragraph 10 and shall not constitute
salary or severance pay. Notwithstanding the foregoing, if
Employer requires Employee to comply with the non-competition
provisions hereof, Employee shall not be prohibited from owning
(other than in a managerial capacity) up to ten percent (10%) of
the publicly traded stock of a corporation trading on a
recognized securities exchange or in an over-the-counter market,
which corporation is in competition with Willbros. It is
expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Paragraph 10 to be
reasonable and necessary for the purposes of preserving and
protecting the goodwill and proprietary information of Employer.
The provisions of this Paragraph 10 shall survive expiration or
termination of this Agreement.
11. BENEFITS AND REMEDIES.
(a) The benefits of Paragraphs 9 and 10 above shall
flow to and be enforceable by Employer and any of its
Affiliates (as defined in Paragraph 11(d) below) and their
respective successors and assigns. The parties hereto
recognize that, because of the nature of the subject matter
of Paragraphs 9 and 10 above, it would be impractical and
extremely difficult to determine Employer's or its
Affiliates' actual damages in the event of a breach of any
of such provisions. Accordingly, if Employee commits a
breach, or threatens to commit a breach, of Paragraph 9 or
10 above, Employer shall give Employee written notice of
such violation and, if Employee does not cure such violation
or otherwise cease to act in violation of the applicable
Paragraph within ten (10) days of the giving of such notice
(provided that the curing of such violation shall not
prevent Employer or any of its Affiliates or any of their
successors or assigns from seeking recovery of their
respective actual damages resulting from such violation),
Employer or any of its Affiliates or any of their successors
or assigns shall have the right to have the provisions of
said Paragraph 9 or 10, as applicable, specifically
enforced, by injunctive or other equitable relief, by any
court having equity jurisdiction, it being acknowledged and
agreed by Employee that any such breach or threatened breach
will cause irreparable injury to Employer or its Affiliates
and that an injunction may be issued against Employee to
stop or prevent any such breach or threatened breach. In
the event that an action shall be instituted to specifically
enforce Employee's obligations hereunder, Employee shall, to
the fullest extent permitted by applicable law, waive the
defense that Employer and its Affiliates have an adequate
remedy at law and shall interpose no opposition, legal or
otherwise, as to the propriety of pursuing specific
performance as a remedy and shall not request any bonding
for the issuance of the relief sought.
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(b) Each of the rights and remedies enumerated in
Paragraph 11(a) above shall be independent of the others,
and shall be severally enforceable, and all such rights and
remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to Employer and its
Affiliates and their respective successors and assigns under
law or in equity or pursuant to any other agreement binding
upon the parties.
(c) In any action at law or equity to enforce any of
the provisions or rights under Paragraph 9 or 10 above, the
unsuccessful party to such litigation, as determined by the
court in a final judgment or decree, shall pay the
successful party or parties all costs, expenses and
reasonable attorneys' fees and disbursements incurred
therein by such party or parties (including without
limitation such costs, expenses and fees on any appeals),
and if such successful party or parties shall obtain a
judgment in any such action or proceeding, such costs,
expenses and attorneys' fees shall be included as part of
such judgment.
(d) For purposes of this Paragraph 11, the term
"Affiliate" with respect to Employer, shall mean any other
person or entity directly or indirectly controlling,
controlled by or under direct or indirect common control
with Employer.
12. TERMINATION. This Agreement may be terminated prior to
December 31, 1998 as follows:
(a) Upon Employee's death, in which case the Base
Salary and, except as provided in the Incentive Plan, all
other rights and benefits to which Employee is entitled
hereunder shall be prorated through the end of the month in
which Employee's death occurs.
(b) By Employer, at its sole option, immediately upon
written notice to Employee, for cause. "Cause" for
termination shall be limited to one or more of the
following:
(i) Proven or admitted theft, embezzlement
or the perpetration of any criminal fraud by Employee
against Willbros in connection with his employment with
Willbros;
(ii) The intentional misappropriation by
Employee, for his own personal benefit, of any material
corporate opportunity, without having first offered
such corporate opportunity to Willbros or obtained
other authorization by Willbros; or
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(iii) The intentional commission of any
felonious act by Employee in connection with his
employment with Willbros, which act is known to
Employee to be a felonious act and has not been
specifically authorized by Willbros.
Except as otherwise provided in Paragraph 14 below, in the
event of termination of this Agreement for any of the causes
enumerated in this Paragraph 12(b), Employer's obligation,
if any, to pay Employee shall cease immediately.
(c) By Employer, at its sole option, upon the
Disability of Employee. "Disability" for this purpose shall
mean total and permanent incapacity of Employee to perform
the usual duties of his employment, which shall be deemed to
exist when certified by a physician who is mutually
acceptable to Employee and Employer. Except as otherwise
provided in Paragraph 14 below, in the event of a
termination pursuant to this Paragraph 12(c), (i) the Base
Salary and, except as provided in the Incentive Plan, all
other rights to which Employee is entitled hereunder shall
be prorated through the end of the month in which the
effective date of such termination occurs, and (ii) Employee
shall be entitled to such compensation and benefits as are
provided in any long-term disability insurance policy or
certificate covering Employee, if any.
(d) By Employee, at his sole option, upon written
notice to Employer at least five (5) days prior to the
effective date of termination set forth in such notice if a
Change of Control (as defined in Paragraph 14(b) below) has
occurred and Employee gives notice of termination within
twelve (12) months after the occurrence of such Change of
Control. In the event of termination of this Agreement
pursuant to this Paragraph 12(d), the Base Salary and,
except as provided in the Incentive Plan, all other rights
to which Employee is entitled hereunder shall be prorated
through the end of the month in which the effective date of
such termination occurs. In addition, if applicable,
Employee shall be entitled to the payments due under
Paragraph 14 below.
(e) By Employee, in the case of Employer's substantial
breach of this Agreement (including without limitation
termination by Employer other than as allowed hereby). If
Employee terminates this Agreement because of Employer's
substantial breach of this Agreement, Employee shall be
entitled to receive Employee's Base Salary (as in effect at
the time of the breach) for the remainder of the term of
this Agreement (in which case such sum shall be paid monthly
over such period); however, if Paragraph 14 hereof is
applicable at the time of the breach and the payments under
such Paragraph 14 are greater than payments
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due under this Paragraph 12(e), Employee may elect to
receive the Paragraph 14 payments. To effect termination by
reason of a substantial breach of this Agreement by
Employer, Employee must have given written notice of such
breach to Employer and Employer must have failed to cure
such breach within fifteen (15) days of the date such notice
is deemed to have been delivered.
(f) By Employee, for any reason other than those set
forth in Paragraphs 12(a), 12(d) and 12(e) above, upon
written notice to Employer at least thirty (30) days prior
to the effective date of termination set forth in such
notice. In the event of a termination of this Agreement
pursuant to this Paragraph 12(f), Employer's obligations to
pay Employee, except as provided in the Incentive Plan,
shall cease on the effective date of such termination.
The termination of this Agreement under this Paragraph 12 shall
not affect the provisions of Paragraph 9, 10, 14 or 15 (to the
extent applicable) hereof or this Paragraph 12, which shall
remain in full force and effect for the applicable time period;
provided, however, if Employee rightfully terminates this
Agreement under Paragraph 12(e) above, only the prohibition of
Paragraph 9 above shall apply in accordance with its terms and
Paragraph 10 above shall not apply.
13. MISCELLANEOUS.
(a) Each party bound by this Agreement agrees to
perform any further acts and to execute and deliver any
additional documents which may reasonably be necessary to
carry out the provisions of this Agreement.
(b) This Agreement may not be assigned by either of
the parties hereto without the prior written consent of the
other. Subject to the foregoing, this Agreement shall be
binding upon, and shall inure to the benefit of, the parties
hereto and their respective heirs, legal representatives,
successors and assigns, each of which shall execute such
instruments and take such actions as are necessary or
appropriate to carry out the purposes of this Agreement.
Except as provided herein, nothing in this Agreement,
express or implied, is intended or shall be construed to
give to any person other than the parties hereto any right,
remedy or claim under or by reason of this Agreement.
(c) This Agreement, together with the Incentive Plan
and the other employee benefit plans referenced in Paragraph
6 above as the same may be amended from time to time,
constitutes the entire agreement and understanding
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between the parties hereto, and supersedes any prior
agreement or correspondence, relating to the subject matter
hereof. This Agreement may be modified or amended only by a
written instrument executed by the parties hereto.
(d) The use of headings and captions herein is solely
for the convenience of the parties hereto and shall not
limit or otherwise affect the construction of any of the
terms or provisions hereof.
(e) This Agreement shall be governed by the laws of
the State of New York, U.S.A., without regard to the
principles of conflict of laws.
(f) No waiver of any term, provision or condition of
this Agreement shall be effective unless in writing signed
by the party granting the waiver, and no such waiver shall
be deemed to be or construed as a further or continuing
waiver of such term, provision or condition or as a waiver
of any other term, provision or condition of this Agreement,
unless specifically so stated in such waiver.
(g) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one
and the same instrument.
(h) If any covenant or agreement contained herein, or
any part hereof, is held to be unenforceable for any reason,
the remainder of this Agreement shall be construed as if
such provision or part thereof was not included herein;
provided, that if the unenforceability of any such covenant
or agreement is because of the breadth of its scope, the
duration of such provision or the geographical area covered
thereby, the parties agree that such provision shall be
amended, as determined by the court, so as to reduce the
breadth of the scope or the duration and/or geographical
area of such provision such that, in its reduced form, said
provision shall then be enforceable.
(i) All notices and other communications required or
permitted hereunder shall be in writing, and shall be deemed
to have been delivered on the date delivered by hand,
telegram, facsimile, or by similar means, or on the third
(3rd) day following the day when sent by recognized courier
or overnight delivery service (fees prepaid), or on the
fifth (5th) day following the day when deposited in the
mail, registered or certified (postage prepaid), addressed
as follows:
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If to Employee: Xxxxx X. Xxxxxxx
0000 Xxxx 000xx Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
X.X.X.
If to Employer: Willbros Engineers, Inc.
Suite 700, 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
X.X.X.
If to WGI: Willbros Group, Inc.
Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 00 y 55 Este, Apartado 850048
Xxxxxx 0, Xxxxxxxx of Panama
With a copy to: Xxxx X. Xxxx, Esq.
Suite 200, 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
X.X.X.
Either party may change its address for receiving notices by
giving written notice of such change to the other party in
accordance with this Paragraph 13(i).
14. CHANGE OF CONTROL.
(a) If a Change of Control (as defined in Paragraph
14(b) below) occurs and Employee's employment is terminated
for any reason (whether voluntarily or involuntarily) within
twelve (12) months of such Change of Control, Employee shall
be entitled to elect to receive a severance payment equal to
the sum of: (i) three (3) times his Base Salary; (ii)
three (3) times the average incentive payment earned under
the Incentive Plan (or a similar predecessor incentive plan)
for the three (3) full calendar years preceding his
termination of employment; and (iii) the Special Retirement
Benefit (as defined in Paragraph 14(d) below).
(b) The term "Change of Control" means and will be
deemed to have occurred if (i) any person, other than WGI or
a Related Party, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of
WGI representing twenty percent (20%) or more of the total
voting power of all the then outstanding voting securities
of WGI ("Voting Securities"); or (ii) any person, other than
WGI or a
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Related Party, purchases or otherwise acquires, under a
tender offer, securities representing, when combined with
other securities of WGI owned by such person, twenty percent
(20%) or more of the total voting power of all the then
outstanding Voting Securities; or (iii) the individuals (A)
who as of the date hereof constitute the Board of Directors
of WGI (the "Board") or (B) who hereafter are elected to the
Board and whose election, or nomination for election, to the
Board was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors
as of the date hereof or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority of the members of the Board; or
(iv) the stockholders of WGI approve a merger,
consolidation, recapitalization or reorganization of WGI or
an acquisition of securities or assets by WGI, or
consummation of any such transaction if stockholder approval
is not obtained (other than any such transaction which would
result in the Voting Securities outstanding immediately
prior thereto continuing to represent, either by remaining
outstanding or by being converted into voting securities of
the surviving entity, at least eighty percent (80%) of the
total voting power represented by the voting securities of
the surviving entity outstanding immediately after such
transaction and in or as a result of which the voting rights
of each Voting Security relative to the voting rights of all
other Voting Securities are not altered); or (v) the
stockholders of WGI approve a plan of complete liquidation
of WGI, or an agreement for the sale or disposition by WGI
of all or substantially all of WGI's assets, other than any
such transaction which would result in a Related Party
owning or acquiring more than fifty percent (50%) of the
assets owned by WGI immediately prior to the transaction; or
(vi) the Board adopts a resolution to the effect that a
Change of Control has occurred and the transaction giving
rise to such resolution has been approved by the
stockholders of WGI or been consummated if such approval is
not sought.
(c) The term "Related Party" means (i) a majority
owned direct or indirect subsidiary of WGI; (ii) an
employee or group of employees of WGI or of any majority
owned direct or indirect subsidiary of WGI; (iii) a trustee
or other fiduciary holding securities under an employee
benefit plan of WGI or any majority owned direct or indirect
subsidiary of WGI; (iv) a corporation owned directly or
indirectly by the stockholders of WGI in substantially the
same proportion as their ownership of stock of WGI; or (v)
Yorktown Energy Partners, L.P.
(d) The term "Special Retirement Benefit" means an
amount calculated such that, when added to any benefits
payable to the Employee under the Willbros Engineers, Inc.
Pension Plan (the "Pension Plan") and the Willbros USA, Inc.
Executive Benefit Restoration Plan (collectively, the "Other
Retirement Benefits"),
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the total retirement benefits the Employee receives from the
Employer will at least equal the amount which the aggregate
of the Other Retirement Benefits would have been if the
Employee retired on a date three (3) years following the
date of his employment termination and the Percentage of
Early Pension Payable (as described in the Pension Plan) was
calculated using a discount percent per year not exceeding
one and one-half percent (1 1/2%) from age sixty-five. For
purposes of calculating the Special Retirement Benefit and
the Other Retirement Benefits under this Agreement, the
following will apply:
(i) The Employee will be deemed to have
continued his employment for a three (3) year
period beginning on the date of his termination at
his Base Salary in effect on the date of
termination; and
(ii) The Employee will be deemed to have
received compensation under the Incentive Plan (or
a similar predecessor incentive plan) for each
year of such three (3) year period in an amount
equal to the average annual incentive payment
earned under the Incentive Plan for the three (3)
full calendar years preceding his termination of
employment.
(e) The provisions of this Paragraph 14 shall survive
expiration or termination of this Agreement.
15. TAX GROSS-UP PAYMENTS.
(a) The parties recognize that the payments under this
Agreement, including without limitation, payments under
Paragraph 14 above, and other compensation, benefits,
payments and distributions under the Incentive Plan or other
plans or compensation arrangements with respect to Employee
may be subject to the excise tax imposed under Section 4999
of the U.S. Internal Revenue Code of 1986 (as amended, the
"Code"). In such event, Employer will pay Employee one or
more cash payments ("Gross-up Payment") sufficient to pay
such excise tax, together with any interest or penalties
incurred by Employee relative thereto and any federal and
state excise or income taxes resulting from payments made
pursuant to this Paragraph 15 (collectively, the "Excise
Tax").
(b) Subject to the provisions of paragraph 15(c)
hereof, all determinations required to be made under this
Paragraph 15, including without limitation whether the
Gross-up Payment is required and the amount of the Gross-up
Payment, will be made by an accounting firm selected by
Employee and
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approved by Employer, which approval will not be
unreasonably withheld. Employee will provide the accounting
firm any information reasonably requested by it necessary to
make such determination, including without limitation copies
of Employee's tax returns for the periods affected, all of
which will be maintained in confidence by the accounting
firm. The accounting firm will provide detailed supporting
calculations together with its written opinion with respect
to the accuracy of such calculations to Employer and
Employee within fifteen (15) business days of the date of
termination of Employee's employment or such earlier time as
is requested by Employee or Employer and agreed to by the
accounting firm. All fees and expenses of the accounting
firm will be borne solely by Employer. The initial Gross-up
Payment, if any, as determined pursuant to this
Paragraph 15(b), will be paid to Employee within five (5)
days after Employee's receipt of the accounting firm's
determination. If the accounting firm determines that no
Excise Tax is payable by Employee, it will also furnish
Employee with an opinion that failure to report the Excise
Tax on Employee's applicable federal income tax return would
not result in the imposition of a negligence or similar
penalty. In the absence of such an opinion, a Gross-up
Payment in the amount which the accounting firm determines
to be payable will be due and payable to Employee. Except
as provided in the preceding sentence, any determination by
the accounting firm will be binding upon all of the parties
hereto. As a result of uncertainty in the application of
Section 4999 of the Code at the time of the initial
determination by the accounting firm hereunder, it is
possible that Gross-up Payments which will not have been
made by Employer should have been made, consistent with the
calculations required to be made hereunder (the
"Underpayment"). In the event that Employer exhausts the
remedies provided in Paragraph 15(c) hereof and Employee
thereafter is required to make a payment of any Excise Tax,
the accounting firm will determine the amount of the
Underpayment that has occurred and any such Underpayment
will be promptly paid by Employer to or for the benefit of
Employee.
(c) Employee will notify Employer in writing of any
claim by the U.S. Internal Revenue Service (the "IRS") that,
if successful, would require the payment by Employer of the
Gross-up Payment; provided, that failure by Employee to give
such notification will not affect any of Employee's rights
or the obligations of Employer under this Agreement. Such
notification will be given as soon as practicable but no
later than ten (10) business days after Employee knows of
such claim and will apprise Employer of the nature of such
claim and the date on which such claim is requested to be
paid. Employee will not pay such claim prior to the
expiration of the thirty (30) day period following the date
on which Employee gives such notice to Employer (or such
sooner period ending on the date that any
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payment of taxes with respect to such claim is due). If
Employer notifies Employee in writing prior to the
expiration of such period that it desires to contest such
claim, Employee will:
(i) give Employer any information
reasonably requested by Employer relating to such
claim;
(ii) take such action in connection with
contesting such claim as Employer may reasonably
request in writing from time to time, including
without limitation accepting legal representation
with respect to such claim by an attorney
reasonably selected by Employer;
(iii) cooperate with Employer in
good faith in order effectively to contest such
claim; and
(iv) permit Employer to participate in
any proceedings relating to such claim;
provided, however, that Employer will bear and pay
directly all costs and expenses (including without
limitation additional interest and penalties) incurred
in connection with such contest and will indemnify and
hold Employee harmless, on an after-tax basis, for any
Excise Tax or income tax, including without limitation
interest and penalties with respect thereto, imposed as
a result of such representation, and payment of costs
and expenses. Without limiting the foregoing, Employer
will control all proceedings taken in connection with
such contest and, at the sole option of Employer, may
pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct Employee to pay the tax claimed
and xxx for a refund or contest the claim in any
permissible manner, and Employee will prosecute such
contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as Employer may determine;
provided, however, that if Employer directs Employee to
pay such claim and xxx for a refund, Employer will
advance the amount of such payment to Employee, on an
interest-free basis, and will indemnify and hold
Employee harmless, on an after-tax basis, from any
Excise Tax, including without limitation interest or
penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and
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further provided that any extension of the statute
of limitations relating to payment of taxes for the
taxable year of Employee with respect to which such
contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, the control of
the contest by Employer will be limited to issues with
respect to which a Gross-up Payment would be payable
hereunder and Employee will be entitled to settle or
contest, as the case may be, any other issue raised by
the IRS or any other taxing authority.
(d) If, after the receipt by Employee of an amount
advanced by Employer pursuant to Paragraph 15(c) hereof,
Employee becomes entitled to receive any refund with respect
to such claim, Employee will (subject to compliance by
Employer with the requirements of Paragraph 15(c) hereof)
promptly pay to Employer the amount of such refund (together
with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Employee of an
amount advanced by Employer pursuant to Paragraph 15(c)
hereof, a determination is made that Employee will not be
entitled to any refund with respect to such claim and
Employer does not notify Employee in writing of its intent
to contest such denial of refund prior to the expiration of
thirty (30) calendar days after such determination, then
such advance will be forgiven and will not be required to be
repaid and the amount of such advance will offset, to the
extent thereof, the amount of Gross-up Payment required to
be paid. Any contest of a denial of refund will be
controlled by Paragraph 15(c) hereof.
(e) The provisions of this Paragraph 15 shall survive
expiration or termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed, or
have caused to be executed, this Employment Agreement on the day
and year first set forth above.
"Employer"
WILLBROS ENGINEERS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
-------------------------
"Employee"
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
WILLBROS GROUP, INC.
By: /s/ Xxxxx X. Bump
--------------------------
Name: Xxxxx X. Bump
--------------------------
Title: Chairman and CEO
--------------------------
15
