EXHIBIT 10.3
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement"), effective this 27th day of
June, 2005 ("Effective Date"), is entered into by and between Xxxxxxx X. Xxxxxx
("Executive"), and InfraSource Services, Inc. (the "Company").
WHEREAS, Executive desires to provide the Company and certain of its
subsidiaries with her services, and the Company desires to employ Executive on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment. Subject to the terms and conditions of this
Agreement, the Company agrees to employ Executive, and Executive agrees to be
employed by the Company beginning on June 27, 2005.
2. Position. During the period of her employment hereunder,
Executive agrees to serve the Company, and the Company shall employ Executive,
as Senior Vice President and General Counsel or in such other executive capacity
or capacities, at the same level of seniority, as may be determined from time to
time by the Chief Executive Officer of InfraSource Services, Inc. (the "CEO").
3. At-Will Employment and Duties.
(a) Executive and the Company agree that Executive's
employment hereunder will be at-will (as defined under applicable law), and may
be terminated at any time, for any reason, at the option of either party,
subject to the provisions of Section 5 below.
(b) Duties. During the period of her employment hereunder and
except for illness, reasonable vacation periods, and reasonable leaves of
absence, Executive shall in good faith (i) devote all of her business time,
attention, skill and efforts to the business and affairs of the Company and its
affiliated companies and (ii) report to the CEO.
4. Salary; Incentive Bonus; Reimbursement of Expenses; Other
Benefits.
(a) Salary. During the period of employment under this
Agreement, Executive shall be paid a salary at the rate of Two Hundred Twenty
Five Thousand dollars ($225,000.00) per year ("Base Salary"). The Base Salary
shall be reviewed annually and may be adjusted as determined by the CEO, but
shall not be adjusted downward without Executive's consent.
(b) Annual Incentive Compensation Program. Executive shall be
entitled to participate in the Annual Incentive Compensation Program ("AICP")
pursuant to the terms and conditions of such program as it may exist
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from time to time. Executive's target bonus opportunity level shall be forty
(40%) percent. This bonus will be based principally upon the financial
performance of the Company and achievement of individual performance goals
established in conjunction with the CEO of the Company.
(c) Stock Options. Executive will be eligible for a grant of
42,000 option shares (the "Option") on her date of commencement of employment in
accordance with the InfraSource Long Term Incentive Plan and form of stock
option agreement as InfraSource in its sole discretion may amend from time to
time. If, during a Change in Control Period (as defined in the Stock Option
Grant form), Executive's employment is terminated by the Company other than for
Cause, or by Executive for Good Reason (as defined in the Stock Option Grant
form), then immediately upon such termination the Option shall be vested and
exercisable with respect to the greater of (i) that portion of the Option that
has vested as of the Termination Date, or (ii) 50% of the total Option shares.
(d) Sign-On Bonus. Executive shall receive a sign-on bonus in
the amount of $10,000.00, less applicable tax withholdings, within thirty days
of commencement of her employment. In the event that Executive voluntarily
terminates her employment prior to the first anniversary of the employment date,
Executive shall repay to the Company fifty percent of the gross amount of the
Sign-On Bonus.
(e) Reimbursement of Expenses. The Company shall pay or
reimburse Executive, in accordance with its normal policies and practices, for
all reasonable travel and other expenses incurred by Executive in performing her
obligations under this Agreement.
(f) Other Benefits. During the period of employment under this
Agreement, Executive shall be entitled to participate in all other benefits of
employment generally available to other executives of the Company and those
benefits for which such persons are or shall become eligible, when and as she
becomes eligible therefore (including but not limited to any deferred
compensation plan and 401(k) plan).
5. Termination of Employment.
(a) Termination by the Company for Cause. The Company may
terminate Executive's employment under this Agreement for "Cause" (as
hereinafter defined) or otherwise at will at any time immediately upon written
notice, or where applicable, upon Executive's failure to cure the breach as
provided below, whereupon the Company shall have no further obligation hereunder
to Executive, except for payment of amounts of Base Salary accrued through the
termination date. For purposes of this agreement, "Cause" shall mean: (i) the
continued willful failure by Executive to substantially perform her duties with
the Company, (ii) the willful engaging by Executive in gross misconduct
materially and demonstrably injurious to the Company or (iii) Executive's
material breach of Sections 3, 6 or 7 of this Agreement; provided, that with
respect to any breach that is curable by Executive, as determined by the Board
in good faith, the Company has provided Executive written notice of the material
breach and Executive has not cured such breach, as determined by the Board in
good faith, within fifteen (15) days following the date the Company provides
such notice.
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(b) Termination as a Result of Executive's Death or
Disability. If Executive's employment hereunder is terminated by reason of
Executive's Disability (as hereinafter defined) or death, Executive's (or
Executive's estate's) right to benefits under this Agreement will terminate as
of the date of such termination and all of the Company's obligations hereunder
shall immediately cease and terminate, except that Executive or Executive's
estate, as the case may be, will be entitled to receive accrued Base Salary and
benefits through the date of termination as well as any pro-rated share (based
on the period of actual employment) of any bonus under the AICP that Executive
would have been entitled to had she worked the full year during which the
termination occurred, provided that where Executive's bonus is subject to
individual criteria the allocation shall be made by Executive's immediate
supervisor taking into account historical bonus amounts, such payment to be made
in full within forty-five (45) days following the determination of the amount
thereof (but in no case later than ninety (90) days after the close of the
termination year) and in accordance with the Company's normal payroll practices
and procedures (and no part shall be contributed to a retirement or deferred
compensation mechanism). As used herein, Executive's Disability shall have the
meaning set forth in any long-term disability plan in which Executive
participates, and in the absence thereof shall mean that, due to physical or
mental illness, Executive shall have failed to perform her duties on a full-time
basis hereunder for one hundred eighty (180) consecutive days and shall not have
returned to the performance of her duties hereunder on a full-time basis before
the end of such period, and if Disability has occurred termination shall occur
within thirty (30) days after written notice of termination is given (which
notice may be given before the end of the one hundred eighty (180) day period
described above so as to cause termination of employment to occur as early as
the last day of such period).
(c) Termination by the Company other than as a Result of
Executive's Death or Disability or other than for Cause. If Executive's
employment is terminated by the Company for any reason other than Executive's
death or Disability or other than for Cause, subject to Executive entering into
and not revoking a release of claims in favor of the Company and abiding by the
provisions set forth in Section 6, Executive shall be entitled to the following
benefits:
(i) Cash severance payments equal in the aggregate to
twelve (12) months of Executive's annual Base Salary at the time of termination,
payable in twelve (12) equal monthly installments beginning at the end of the
first full month following termination of employment. If Executive's employment
is terminated during the period beginning ninety (90) days before the execution
of a binding agreement with respect to a transaction that, if completed, would
constitute or result in a Change of Control (as defined below) or twelve (12)
months following a Change in Control, cash severance payments equal in the
aggregate to eighteen (18) months of Executive's annual Base Salary at the time
of termination, payable in eighteen (18) equal monthly installments beginning at
the end of the first full month following termination of employment. The payment
provisions of this agreement shall be accelerated in the event that such
payments are treated as deferred compensation and subject Executive to an excise
tax.
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(ii) Continuation of Executive's medical and health
insurance benefits for a period equal to the lesser of (i) twelve (12) months,
or (ii) the period ending on the date Executive first becomes entitled to
medical and health insurance benefits under any plan maintained by any person
for whom Executive provides services as an employee or otherwise. If Executive's
employment is terminated within one year of a Change of Control, continuation of
Executive's medical and health insurance benefits for a period equal to the
lesser of (i) eighteen (18) months, or (ii) the period ending on the date
Executive first becomes entitled to medical and health insurance benefits under
any plan maintained by any person for whom Executive provides services as an
employee or otherwise.
(iii) For purposes of this agreement "Change of Control"
is defined as: (1) a complete liquidation or dissolution of the Company; (2) a
sale, exchange or other disposition of substantially all of the Company's
business or assets, (3) consummation of a merger, consolidation or
reorganization involving the Company, unless such merger, consolidation or
reorganization results in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or parent thereof) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity or
parent thereof outstanding immediately after such merger, consolidation or
reorganization; or (4) a change in the constituency of the Board with the result
that individuals (the "Incumbent Directors") who are members of the Board as of
the Effective Date cease for any reason to constitute at least a majority of the
Board; provided that any individual who is elected to the Board after the
Effective Date and whose nomination for election was unanimously approved by the
Incumbent Directors shall be considered an Incumbent Director beginning on the
date of his or her election to the Board.
(d) Termination by Executive. Executive may terminate her
employment with the Company upon thirty (30) days written notice to the Company,
after which the Company shall have no further obligation hereunder to Executive,
except for payment of amounts of Base Salary and other benefits accrued through
the termination date.
6. Confidential Information; Non Competition; Non-Solicitation.
(a) Confidential Information. Executive acknowledges that in
her employment hereunder she will occupy a position of trust and confidence.
Executive shall not, except in the course of the good faith performance of her
duties hereunder or as required by applicable law, without limitation in time or
until such information shall have become public other than by Executive's
unauthorized disclosure, disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company, its subsidiaries
and affiliates. "Confidential Information" shall mean information about the
Company, its subsidiaries or affiliates, or their respective clients or
customers that was learned by Executive in the course of her employment by the
Company, its subsidiaries or affiliates, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information and client and
customer lists and all
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papers, resumes, and records (including computer records) of the documents
containing such Confidential Information, but excludes information (i) which is
in the public domain through no unauthorized act or omission of Executive; or
(ii) which becomes available to Executive on a non-confidential basis from a
source other than the Company or its affiliates without breach of such source's
confidentiality or non-disclosure obligations to the Company or any affiliate.
Executive agrees to deliver or return to the Company, at the Company's request
at any time or upon termination or expiration of her employment or as soon
thereafter as possible, (A) all documents, computer tapes and disks, records,
lists, data, drawings, prints, notes and written information (and all copies
thereof) furnished by the Company, its subsidiaries or affiliates, or prepared
by Executive during the term of her employment by the Company, its subsidiaries
or affiliates, and (B) all notebooks and other data relating to research or
experiments or other work conducted by Executive in the scope of employment.
(b) Non-Competition. During the period of Executive's
employment by the Company and for a period equal to the period of her
eligibility for cash severance payments, Executive shall not, directly or
indirectly, without the prior written consent of the Company, provide
consultative services or otherwise provide services to (whether as an employee
or a consultant, with or without pay) or, own, manage, operate, join, control,
participate in, or be connected with (as a stockholder, partner, or otherwise),
any business, individual, partner, firm, corporation, or other entity that is a
competitor of the Company at the time of termination or, if following a Change
in Control, is a competitor to the business of the Company as conducted
immediately preceding the occurrence of a Change in Control, provided, however,
that the "beneficial ownership" by Executive, either individually or as a member
of a "group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of not more than five percent (5%) of the voting stock of any publicly
held corporation shall not alone constitute a violation of this Agreement.
(c) Non-Solicitation of Customers and Suppliers. During the
period of Executive's employment by the Company and, if Executive's employment
is terminated under Sections 5 above (and provided the Company fulfills its
obligations there under) until the twelfth month of the date of Executive's
employment termination Executive shall not, directly or indirectly, influence or
attempt to influence customers or suppliers of the Company to divert any of
their business to any Competitor of the Company.
(d) Non-Solicitation of Employees. Executive recognizes that
she possesses and will possess Confidential Information about other employees of
the Company, its subsidiaries or affiliates, relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with customers of the Company, its subsidiaries or affiliates.
Executive recognizes that the information she possesses and will possess about
these other employees is not generally known, is of substantial value to the
Company, its subsidiaries or affiliates in developing their business and in
securing and retaining customers, and has been and will be acquired by her
because of her business position with the Company, its subsidiaries or
affiliates. Executive agrees that, during the period of Executive's employment
by the Company and for a period of six (6) months thereafter, she will not,
directly or indirectly, solicit,
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recruit, induce, or encourage or attempt to solicit, recruit, induce, or
encourage any employee of the Company, its subsidiaries or affiliates (i) for
the purpose of being employed by her or by any Competitor of the Company on
whose behalf she is acting as an agent, representative or employee or (ii) to
terminate his or her employment or any other relationship with the Company, its
subsidiaries, or affiliates. Executive also agrees that Executive will not
convey any such Confidential Information or trade secrets about other employees
of the Company, its subsidiaries, or affiliates to any other person.
(e) Injunctive Relief. It is expressly agreed that the Company
will or would suffer irreparable injury if Executive were to violate any of the
provisions of this Section 6 and that the Company would by reason of such
violation be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of such
injunctive relief in such a court prohibiting Executive from so violating
Section 6 of this Agreement.
(f) Survival of Provisions. The obligations contained in this
Section 6 shall survive the termination or expiration of Executive's employment
with the Company and shall be fully enforceable thereafter.
7. No Conflict. Executive represents and warrants that Executive is
not subject to any agreement, instrument, order, judgment or decree of any kind,
or any other restrictive agreement of any character, which would prevent
Executive from entering into this Agreement or would conflict with the
performance of Executive's duties pursuant to this Agreement. Executive
represents and warrants that Executive will not engage in any activity, which
would conflict with the performance of Executive's duties pursuant to this
Agreement.
8. Notices. All notices and other communications under this
Agreement shall be in writing and shall be given by courier service or
first-class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given on the date receipt is recorded by the
appropriate delivery service, or may be delivered personally by hand to the
respective persons named below:
If to Company: InfraSource Services, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxxx
If to Executive:
000 Xxx Xxxx
Xxxxx, XX 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
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9. Dispute Resolution; Attorneys' Fees. The Company and Executive
agree that any dispute arising as to the parties' rights and obligations
hereunder, other than with respect to Section 6, shall, at the election and upon
written demand of either party, be submitted to arbitration before a single
arbitrator in Delaware County, PA under the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association.
10. Assignment; Successors. This Agreement is personal in its nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder;
provided that, in the event of the merger, consolidation, transfer, or sale of
all or substantially all of the assets of the Company with or to any other
individual or entity, this Agreement shall, subject to the provisions hereof, be
binding upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder.
11. Governing Law. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the Commonwealth of Pennsylvania.
12. Withholding. The Company shall make such deductions and withhold
such amounts from each payment made to Executive hereunder as may be required
from time to time by law, governmental regulation or order.
13. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
14. Waiver; Modification. Failure to insist upon strict compliance
with any of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
15. Severability. If for any reason any term or provision containing
a restriction set forth herein is held to be for a length of time which is
unreasonable or in other way is construed to be too broad or to any extent
invalid, such term or provision shall not be determined to be null, void and of
no effect, but to the extent the same is or would be valid or enforceable under
applicable law, any court shall construe and reform this Agreement to provide
for a restriction having the maximum time period and other provisions as shall
be valid and enforceable under applicable law. If, notwithstanding the previous
sentence, any term or provision of this Agreement is held to be invalid or
unenforceable, all other valid terms and provisions hereof shall remain in full
force and effect, and all of the terms and provisions of this Agreement shall be
deemed to be severable in nature.
16. Entire Agreement; Effect on Certain Prior Agreements. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any prior agreements between them with
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respect to the subject matter hereof, including all prior employment, retention,
severance or related agreements between Executive and the Company or any
successor, predecessor or affiliate. Without limiting the generality of the
foregoing, the obligations under this Agreement with respect to any termination
of employment of Executive, for whatever reason, supersede any severance or
related obligations of the Company or any of its successors, predecessors or
affiliates in any plan of the Company or any of its successors, predecessors or
affiliates or any agreement between Executive and the Company or any of its
successors, predecessors or affiliates.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Executive has hereunto signed this
Agreement, as of the date first above written.
INFRASOURCE SERVICES, INC.
/s/ Xxxxxxx Xxxxxxxx
By: Xxxxxxx Xxxxxxxx
Its: Vice President, Human Resources
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
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