Get Started for Free Contexxia identifies hard-to-find pieces of information in SEC filings. No more highlighters, no more redlining, no more poring over huge documents. SHAW GROUP INC (914024) 10-K/A published on Dec 21, 2012 at 3:30 pm
Reporting Period: Aug 30, 2012
Mr. Mancuso was named vice president and chief financial officer of Computer Services Corporation (NYSE: CSC), a publicly-held leading provider of information technology and professional services to large corporations and governments, on December 1, 2008. He retired from that position in May 2012. In June 2006, after 13 years’ service, Mr. Mancuso retired from General Dynamics Corporation (NYSE: GD), a company engaged in the field of mission-critical information systems and technologies, land and expeditionary combat systems, armaments and munitions, shipbuilding and marine systems and business aviation. Mr. Mancuso had served as senior vice president and chief financial officer of General Dynamics from 1994 until his retirement from General Dynamics in 2006. Before joining General Dynamics, Mr. Mancuso spent seven years with United Technologies, where he served as vice president and chief financial officer for the Commercial Engine Business of the Pratt & Whitney Group. He joined United Technologies Defense and Space Systems Group in 1986 as group financial manager, moved to the aerospace and defense section in 1989 as director, financial planning and analysis, and spent three years as vice president, finance and administration for the Hamilton standard division. His background also includes 21 years with General Electric. Mr. Mancuso also serves on the board of directors for SPX Corporation (NYSE: SPW), a publicly-held industrial manufacturer headquartered in Charlotte, North Carolina. From 2007 until 2009, Mr. Mancuso also served on the board of directors for LSI Logic Corporation (NYSE: LSI), a publicly-held leading provider of silicon systems and software technologies, headquartered in Milpitas, California. From 2007 until 2008, Mr. Mancuso also served on the board of directors for CACI International Inc. (NYSE: CACI), a publicly-held provider of information technology and professional services to the U.S. federal government and commercial markets in North America and internationally, headquartered in Arlington, Virginia.
“Misconduct,” or “Cause,” per Mr. Bernhard’s employment agreement means: (1) the continued failure by Mr. Bernhard to substantially perform his duties with us (other than a failure resulting from his incapacity due to a Disability or any such actual or anticipated failure after the issuance of a notice of termination by Mr. Bernhard for Good Reason), after a written demand for substantial performance is delivered to Mr. Bernhard by our Board, allowing 30 days for him to effect a potential cure; (2) Mr. Bernhard’s engaging in conduct which is demonstrably and materially injurious to us, monetarily or otherwise (other than such conduct resulting from his incapacity due to physical or mental illness and other than any such actual or anticipated conduct after the issuance of a notice of termination by him for Good Reason); or (3) Mr. Bernhard’s conviction for the commission of a felony. The definition of Misconduct, or Cause, in Messrs. Ferraioli, Chapman and Bevan’s employment agreements is somewhat different, and means: (1) any willful breach or habitual neglect of duty or the executive’s material and continued failure to substantially perform his duties for us (other than a failure resulting from the executive’s incapacity due to Disability or any such actual or anticipated failure after the issuance of a notice of termination by the executive for Good Reason) in a professional manner and in a manner reasonably expected as appropriate for the position, which breach is not cured within 30 days of receipt of written notice from us specifying the alleged breach; (2) the intentional misappropriation or attempted misappropriation of a material business opportunity of ours, including an attempt to secure any personal profit in connection with entering into any transaction on behalf of us; (3) the intentional misappropriation or attempted misappropriation of any of our funds or property; (4) the violation of our Code of Corporate Conduct or Anti-Fraud Policy; or (5) the commission of a felony offense or a misdemeanor offense involving violent or dishonest behavior, or the engagement in any other conduct involving fraud or dishonesty.
Death. In the event of an executive’s death during the term of his employment agreement, Messrs. Bernhard, Ferraioli and Bevan will be considered immediately and totally vested in all long-term equity incentive awards previously granted to them. Mr. Chapman’s employment agreement does not include immediate and total vesting in the event of death. In the case of Mr. Bernhard’s death, his surviving spouse or estate is entitled to receive, within the 30-day period following his death: (1) a lump sum payment equal to one year’s base salary and a pro-rata MIP cash incentive compensation payment in the amount he would have otherwise been entitled to receive; (2) a lump sum payment equal to the cost to obtain health, dental and vision insurance benefits covering his spouse and dependents that are substantially similar to those that his spouse and dependents were receiving immediately prior to termination for a 30-month period; and (3) a lump sum payment related to his SERP (as discussed above under “COMPENSATION DISCUSSION AND ANALYSIS” and “Nonqualified Deferred Compensation”). In the event of Messrs. Ferraioli, Chapman and Bevan’s death, their surviving spouses or estate will be entitled to a lump sum payment within 30 days of their death equal to the cost to obtain health, dental and vision insurance benefits covering their spouse and dependents that are substantially similar to those that their spouse and dependents were receiving immediately prior to termination, for a one year period for Messrs. Ferraioli and Bevan and an 18 month period for Mr. Chapman.
Reimbursement of Excise Tax and Gross-up. As of August 31, 2012, Messrs. Ferraioli and Bevan were eligible to receive a payment in an amount necessary to offset any excise tax imposed under the Internal Revenue Code on payments received under the change in control termination scenario and any other excise or regular income taxes imposed on them as a result of this initial excise tax reimbursement. To the extent that any payment or benefit received or to be received by these NEOs under their employment agreements in connection with a change in control would constitute an “excess parachute payment” (as defined in Section 280G of the Internal Revenue Code) subject to the excise tax imposed by Section 4999 of the Internal Revenue Code, we must “gross-up” such payment and benefit by paying to the executive additional amounts (gross-up payments), which must include any excise taxes and income taxes imposed upon such gross-up payments, so that the executive is in the same “net” after-tax position he would have been if such payment, benefit and gross-up payments had not constituted excess parachute payments. Messrs. Bernhard and Chapman were not eligible to receive a reimbursement of excise tax or gross up payment under their agreements. Instead, if any payments or benefits received or to be received by Messrs. Bernhard or Chapman in connection with their terminations of employment would constitute an “excess parachute payment,” an independent tax advisor would determine whether (a) such payments should be reduced to the extent necessary so that no portion would be subject to the excise tax or (b) Messrs. Bernhard and Chapman would receive, in the aggregate, greater payments and benefits on an after tax basis if the payments were not reduced, in which case, no such reduction would be made.
Section 409A of the Code. Notwithstanding the timing of payments otherwise noted in this section, if the executive in question is a “specified employee” as defined in Section 409A of the Internal Revenue Code at the date of his termination, any amounts that are considered subject to the deferred compensation rules of such Internal Revenue Code section shall not be paid until a period of six months from the date of his separation of service with us has passed. We expect that each of our NEOs would be considered “specified employees” at the time of their termination from employment.
Our Board adopted a Related Persons Transaction Policy in August 2008 for the review, approval, or ratification of related person transactions. The policy applies to covered transactions exceeding or expected to exceed $25,000 in a calendar year in which the Company and a Related Person are participants. A Related Person is defined as: (1) a director or director nominee; (2) a senior officer of the Company or any of its controlled affiliates; (3) any shareholder owning more than 5% of our common stock (or any person owning more than 5% of the equity interests of any of our controlled affiliates); (4) a person who is an immediate family member of any of the foregoing; or (5) an entity that is owned or controlled by any of the persons noted in (1) through (4) of the policy. Our Related Persons Transaction Policy requires the approval of our Audit Committee for any transactions covered by the policy. This approval process is intended to be performed in advance of a covered transaction but may be subsequently ratified by our Audit Committee. Certain transactions qualify for standing pre-approval and need not be reported to our Audit Committee. These transactions include but are not limited to: (a) employment of executive officers; (b) director compensation; and (c) transactions with another company at which a Related Person’s only relationship is as an employee (other than an executive officer), director or beneficial owner of less than 10% of that company’s shares. They are pre-approved or ratified (as applicable) if the aggregate amount involved does not exceed the greater of $200,000 or 5% of that company’s total annual revenues. Any charitable contributions, grants or endowments by the Company to a charitable organization, foundation or university at which a Related Person’s only relationship is as an employee (other than an executive officer) or a director are pre-approved or ratified (as applicable) if the aggregate amount involved does not exceed the lesser of $200,000 or 5% of the charitable organization’s total annual receipts. Transactions involving a competitive bid process also qualify for standing preapproval. The policy also requires reporting and disclosures as required by law.