UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Effective April 6, 2022, Mark R. Stauffer, the President, Chief Executive Officer, and Interim Chief Financial Officer, of Orion Group Holdings, Inc. (the “Company”), and a member of its Board of Directors separated from the Company in all capacities.
Effective April 6, 2022, the Board appointed Austin J. Shanfelter, age 64, as the Company’s Interim Chief Executive Officer and Interim Chief Financial Officer. Mr. Shanfelter is currently the Chairman of the Company’s Board of Directors, and he will also continue to serve in that capacity. In connection with Mr. Shanfelter’s appointment, the Board has designated Richard L. Daerr, Jr., a current member of the Board, as Lead Independent Director. Other than as described herein, there are no understandings or arrangements between Mr. Shanfelter and any other person pursuant to which Mr. Shanfelter was chosen to serve as Interim Chief Executive Officer and Interim Chief Financial Officer. Except as described herein, there are no existing relationships between Mr. Shanfelter and any person that would require disclosure pursuant to Item 404(a) of Regulation S-K or any familial relationships that would require disclosure under Item 401(d) of Regulation S-K.
Mr. Shanfelter has been a member of the Board and a Class III director since May 22, 2007 and effective January 1, 2021 was elected by the Board to serve as its Chairman. He served as Chairman of the Board’s Compensation Committee from May 2007 until March 2019, when he was appointed the Company’s interim Chief Operating Officer, a position he held until February 2020. In March 2020, following the end of his service as an interim officer, Mr. Shanfelter was once again appointed to serve as Chairman of the Board’s Compensation Committee, a position that he held until June 1, 2021. Mr. Shanfelter also served as a member of the Nominating and Governance Committee from May 2010 until March 2019. Mr. Shanfelter stepped down as a member of the Compensation Committee effective March 24, 2022. Mr. Shanfelter served as a member of the Board of Directors of MasTec, Inc. (NYSE: MTZ), a publicly traded specialty contractor, and as a special consultant from 2007 to 2008. Mr. Shanfelter served as Chief Executive Officer and President of MasTec from 2001 to 2007. From 2000 to 2001, Mr. Shanfelter was MasTec’s Chief Operating Officer and prior thereto, he was its divisional president from 1997 to 2000.
Mr. Shanfelter has been involved in the telecommunication, power, and specialty construction industries since 1981. Mr. Shanfelter became a member of the Society of Cable Television Engineers in 1982, the National Cable Television Association in 1991, and the Power and Communications Contractors Association (“PCAA”) in 1991, where he served as its President in 2007. Mr. Shanfelter was the majority owner and Chairman of Global HR Research LLC, a pre-employment screening company, from 2008 through 2016. Mr. Shanfelter previously served as a member of the Board of Directors of Sabre Industries, a leading manufacturer of cell and power delivery structures. Mr. Shanfelter is currently serving on the Board of Governors of the National Wrestling Hall of Fame. Mr. Shanfelter is the current Chairman of Champions4Children, a non-profit organization supporting children in the Fort Meyers, Florida area.
In connection with Mr. Stauffer’s separation from the Company, he and the Company entered into a consulting agreement effective April 6, 2022 (the “Consulting Agreement”). Pursuant to the terms of the Consulting Agreement, Mr. Stauffer has agreed to provide transition assistance to Mr. Shanfelter in his role as Interim Chief Executive Officer and Interim Chief Executive Officer through June 30, 2022, for a weekly fee of $13,900.
Mr. Stauffer and the Company also entered into a Separation and General Release Agreement, effective April 6, 2022 (the “Separation Agreement”). Pursuant to the terms of the Separation Agreement, in consideration for signing a customary general release and waiver of claims, Mr. Stauffer will receive (i) the cash severance payments due him under the terms of his Employment Agreement with the Company, dated January 1, 2015, as amended by the First through Fourth Amendments, as previously disclosed by the Company,
(ii) accelerated vesting of certain outstanding equity awards which were scheduled to vest on or prior to August 31, 2022, and (iii) the unmodified right to exercise any previously vested stock options.
The foregoing descriptions of the Consulting Agreement and the Separation Agreement do not purport to be complete and are qualified in their entirety by the full text of the respective agreements, which are filed herewith as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K (the “Current Report”), respectively, and are incorporated herein by reference.
Item 7.01. | Regulation FD Disclosure. |
On April 7, 2022, the Company issued a press release announcing the events described above. A copy of the press release is furnished as Exhibit 99.1 to this Current Report.
The information in this Item 7.01 of this Current Report, including corresponding Exhibit 99.1, is being “furnished” and not “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section, and is not incorporated by reference into any registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, unless specifically identified therein as being incorporated by reference.
Item 9.01 | Financial Statements and Exhibits. |
The Exhibits to this Current Report are listed in the Exhibit Index, which appears at the end of, and is incorporated by reference into, this Current Report.
Exhibit Index
Exhibit No. |
| Description |
10.1† | Consulting Agreement, dated April 6, 2022, by and between Mark R. Stauffer and Orion Group Holdings, Inc. | |
10.2† | Separation and General Release Agreement, dated April 6, 2022, by and between Mark R. Stauffer and Orion Group Holdings, Inc. | |
Press release issued April 7, 2022. | ||
104.1 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
† Compensatory plan or arrangement
Exhibit 10.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this “Agreement”) is entered into effective as of April 6, 2022 (the “Effective Date”), by and between Orion Group Holding, Inc., a Delaware corporation (“Company”) and Mark R. Stauffer (“Consultant”).
The parties agree as follows:
The term of this Agreement shall commence on the Effective Date and shall continue until June 30, 2022 unless extended or terminated earlier by either party as provided in this Section 1 (Consulting Period) (the “Consulting Period”). Either party may terminate this Agreement prior to June 30, 2022 for any reason or no reason upon thirty (30) calendar days’ written notice. Company may terminate this Agreement immediately upon Consultant’s material breach of this Agreement, as determined by Company in its sole discretion. Upon termination of this Agreement for any reason, Consultant shall be paid only for work that has been, up to and including the termination date, completed in accordance with the requirements of this Agreement, as determined by Company in its sole discretion. The provisions of Sections 7 (Confidentiality), 8 (Return of Records), and 10 (Limitation of Liability) shall survive any termination or expiration of this Agreement.
During the Consulting Period, Consultant agrees to provide transition assistance and other advisory services to the Company’s Interim Chief Executive Officer and Interim Chief Financial Officer the services (the “Services”). Consultant warrants that all Services shall be performed in a timely, legal, professional, ethical, and competent manner, in accordance with the standards of practice, quality, care, prudence, skill and diligence customary for the provider of services similar to the Services, and in accordance with all applicable law. Consultant shall otherwise determine the manner in which the Services are to be performed and the specific hours to be worked. Company will rely on Consultant to work as many hours as may be reasonably necessary to fulfill Consultant’s obligations under this Agreement. Consultant shall provide the Services from Consultant’s offices and from Company’s Houston corporate office and shall travel to work at other locations as designated by and approved in advance by Company. Consultant shall provide all tools and materials necessary for the completion of the Services. Consultant shall be responsible for obtaining all necessary licenses, permits and visas for performing the Services and in all other ways necessary in order to comply with the requirements of applicable laws.
During the Consulting Period, Company will pay Consultant a fee of $13,900 per week for the Services (the “Fee”). Company will also reimburse Consultant for all actual and documented business expenses of Consultant reasonably and properly incurred during the Consulting Period for travel, accommodation and the like outside of the Houston metropolitan area, that arise from Consultant’s performance of the Services (the “Reimbursable Expenses”), which reimbursement shall be in accordance with Company’s normal policies and procedures and subject to the
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Mark R. Stauffer
Consulting Agreement
April 6, 2022
submission of appropriate receipts and other documentation by Consultant to Company; provided that any expense or series of related expenses equal to or in excess of $ 200.00 must be approved in advance by Company. Consultant shall invoice Company on a monthly basis, with such invoice to include the Fee and Reimbursable Expenses for such month.
The parties hereto agree that Consultant shall at all times during the Consulting Period be an independent contractor with respect to Company and there shall not be implied any relationship of employer-employee, partnership, joint venture, principal and agent or the like by this Agreement. It is understood and agreed that Consultant shall have no power or authority to supervise, direct, or manage any employee of Company, or to enter into contracts on behalf of Company or to borrow or incur debts or liabilities, of any kind or nature whatsoever, on behalf of Company. Consultant shall not be entitled to participate in or otherwise accrue benefits or receive contributions under any employee benefit plans, policies, or other arrangements that might be available to the employees of Company or its affiliates, and waives any right Consultant may have to participate in such plans, policies, or other arrangements.
Company shall not, and shall have no obligation to, withhold or deduct from any amount paid to Consultant under this Agreement any amount or amounts in respect of income, employment, or other taxes on behalf of Consultant. Consultant shall be solely responsible for the payment of, and shall pay, all federal, state, local, and other income, self-employment, and other taxes in respect of amounts paid pursuant to this Agreement and shall hold Company and its affiliates and their respective officers, directors, and employees harmless from any liability arising from Consultant’s failure to pay such taxes.
Consultant is required to provide advance written notice to Company of any other clients or business activities or other interests that conflict or may conflict with the Services provided under this Agreement.
Consultant acknowledges its relationship with Company is one of high trust and confidence and that Consultant will have access to and contact with Confidential Information (as defined below). Consultant agrees it shall not, at any time, disclose to others or use for any purpose any Confidential Information in any form without Company’s express written prior approval. Upon request by Company, Consultant agrees to promptly deliver to Company the original and any copies of all such Confidential Information. A violation of this Section 7 (Confidentiality) shall be a material violation of this Agreement and may result in serious and irreparable injury to Company for which Company cannot be adequately compensated by monetary damages alone. Consultant agrees, therefore that, in addition to any other remedy it may have upon breach of this Section 7 (Confidentiality), Company shall be entitled to suspend any payments due under the Agreement, and Company shall be entitled to enforce the specific performance of this Agreement and seek
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Mark R. Stauffer
Consulting Agreement
April 6, 2022
both temporary and permanent injunctive relief without necessity of proving actual damages. “Confidential Information” shall mean all confidential or proprietary information of Company and its affiliates in any form or media, including without limitation: (a) information related to the business of Company or any of its affiliates and existing and proposed products and services, research and development activities, finances, marketing plans, and other affairs (including, without limitation, any list or record of persons or entities with which the Company or any of its subsidiaries or affiliates has any dealings); (b) any information which is received in confidence by or for Company or any of its affiliates from any other person; and (c) any information which by the nature or type of information should reasonably be regarded as confidential or proprietary; provided, however, that information or portions of information that is or becomes generally available to the public shall not constitute Confidential Information (other than as a result of a direct or indirect disclosure by Consultant in violation of this Agreement).
Upon termination of this Agreement, Consultant shall deliver all records, notes, data, memoranda, models, reports, lists, other documents, and equipment of any nature, and copies thereof, that are in Consultant’s possession or under Consultant’s control and that are Company’s property or relate to Company’s business.
All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, first-class postage prepaid, addressed as follows:
If for Company: Orion Group Holdings, Inc. Attn: Interim CEO 12000 Aerospace Ave. Suite 300 Houston, TX 77034 With copy to: Orion Group Holdings, Inc. Attn: General Counsel 12000 Aerospace Ave. Suite 300 Houston, TX 77034 | If for Consultant, to the address provided below Consultant’s signature. |
Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above.
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Mark R. Stauffer
Consulting Agreement
April 6, 2022
To the fullest extent permitted by applicable law, the total aggregate liability of Company to Consultant shall be limited to the amounts owed to Consultant for the Services provided in accordance with this Agreement. In no event shall Company be liable to Consultant for any consequential, incidental, indirect, punitive, or special damages (including loss of profits, data, business, or goodwill). Consultant shall have no recourse and bring no claim against Company or any of its directors, officers, employees, or agents, with respect to the Services under this Agreement, or otherwise. The Company shall indemnify Consultant, to the extent provided for, as an agent of the Company, in ARTICLE 7 of the Company’s Bylaws.
This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
This Agreement may be amended only if the amendment is made in writing and is signed by both parties.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the validity of the remaining provisions shall not be affected. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
This Agreement shall be interpreted to ensure that the payments contemplated hereby to be made by Company to Consultant are exempt from, or comply with, Section 409A. Nothing in this Agreement shall be interpreted to change the time or form of any payment, whether provided for under this Agreement or otherwise, that is subject to Section 409A.
This Agreement (and any amendment, modification and waiver in respect hereof) may be executed by facsimile or other electronic transmission and in counterparts, each of which shall be
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Mark R. Stauffer
Consulting Agreement
April 6, 2022
deemed to be an original, and all of which taken together shall constitute one agreement binding on the parties.
This Agreement is governed by and will be construed in accordance with the laws of the State of Texas, without regard to the conflicts of law principles of such State.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Consultant shall not assign this Agreement or any of its rights or obligations hereunder, nor subcontract the whole or any part of the Services, without Company’s prior written consent.
The undersigned have executed this Agreement effective as of this 6th day of April 2022.
ORION GROUP HOLDINGS, INC.
By: _/s/ Austin J. Shanfelter________
Name: Austin J. Shanfelter
Title: Interim Chief Executive Officer
MARK R. STAUFFER
By: _/s/ Mark R. Stauffer__________
Name: Mark R. Stauffer
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Exhibit 10.2
Separation and General Release Agreement
This Separation and General Release Agreement (“Agreement”), is entered into on the date this Agreement becomes effective, between Mark R. Stauffer (“You” or “Your”) and Orion Group Holdings, Inc. (the “Company”). The Parties agree that this Agreement represents the full and complete agreement concerning all matters between them (except as otherwise provided herein) and the Parties intend to be legally bound by its terms.
WHEREAS, Your employment separation with the Company will be effective April 6, 2022 (“Separation Date”), and will be an involuntary termination Without Cause (the term “Without Cause” as used herein is as defined in Section 1.1(k) of the below referenced Employment Agreement); and
WHEREAS, You are entitled to certain benefits related to Your separation under the terms and conditions set forth in the Employment Agreement entered into between You and the Company dated January 1, 2015, and as amended by the First through Fourth Amendments (the “Employment Agreement”), and such additional benefits as set forth herein provided the terms of the Agreement are met; and
WHEREAS, You and the Company have entered into a separate Consulting Agreement dated April 6, 2022, pursuant to which You will provide certain consulting services to the Company following the Separation Date through August 31, 2022, unless terminated earlier (the “Consulting Agreement”).
NOW, THEREFORE, You and the Company agree as follows:
1. | General: Conditioned on the enforceable determination that You are terminated by the Company Without Cause, You agree to relinquish any right You may have to be employed by the Company or any of the Released Parties as of Your Separation Date, and agree to resign from all representative positions with the Company as of the Separation Date (including but not limited to Your position as a member of the Company’s Board of Directors). Your separation from employment with the Company will not impact Your rights to the following: |
a) | Salary: You will be paid Your current salary, as applicable, through Your Separation Date. |
b) | Medical, Vision, and Dental Insurance via COBRA: The Company will terminate Your medical, vision, and dental insurance benefits as an active employee as of the last day of the month in which Your Separation Date occurs. You will be eligible to enroll in COBRA continuation coverage, generally for up to 18 months, or until You otherwise lose eligibility for COBRA coverage, whichever occurs first. The COBRA administrator will send You a COBRA election notice with more information on how to elect COBRA and the cost of such continued coverage. |
c) | Vacation Pay: You will be paid for Your earned, unused vacation through Your Separation Date. |
d) | Vested Benefits: Your rights to other Company benefits will continue to be determined by the terms of any applicable plans. |
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e) | Non-Conditional: You will receive the above wages and benefits regardless of whether You sign this Agreement. |
2. | Consideration: In consideration for Your signing and not revoking this Agreement and performing the promises contained herein, You will be entitled to the following payments and benefits (in each case, less applicable taxes and withholdings): |
a) | The following separation benefits, in accordance with, and in full satisfaction of, clauses (b) through (e) of Section 3.4 of the Employment Agreement: |
i)continued payment of Your base salary as of the Separation Date ($725,000) for a period of twelve months, in accordance with the Company’s standard payroll practices;
ii)monthly payment for a period of twelve months of $2,500 to cover transitional expenses; and
iii)monthly payment for a period of twelve months of an amount equal to Your monthly car allowance ($1,250).
The time and form of the payments set forth in this Paragraph 2(a) will be made in accordance with the time and form of payment rules (including, for the avoidance of doubt, the Section 409A limitations) outlined in the applicable sections of the Employment Agreement.
b) | The Compensation Committee will take action, to the extent necessary, to provide for the following additional separation benefits related to Your outstanding equity-based awards previously granted by the Company: |
i)Restricted Stock: The restrictions scheduled to be lifted on or before August 31, 2022, on 61,833 previously granted shares of Restricted Stock shall be lifted on the Effective Date (as defined in Paragraph 18). All other previously granted shares of Restricted Stock shall be forfeited to the Company as of Your Separation Date.
ii)Stock Options: Any and all previously granted Stock Options that are already exercisable in accordance with their terms as of the Separation Date will remain outstanding and must be exercised in accordance with their terms and within any post-termination exercise period as specified in the applicable award agreement or they will be forfeited to the Company.
iii)Performance Units: With regard to any and all previously granted performance-based restricted stock units for which the applicable performance period has ended and the level of achievement of the performance metrics has been determined by the Compensation Committee of the Company’s Board of Directors as of Your Separation Date, You will retain the right to receive any and all “earned” shares of common stock (or cash payments, if the applicable award is settled in cash) under such awards that are scheduled to be distributed on or before August 31, 2022, which shares (or, as applicable, cash payment) shall be distributed to You at the same time You would
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have received such distribution had You remained employed by the Company. For the avoidance of doubt, the number of shares and amount of the cash payment subject to the acceleration of vesting described in this Paragraph 2(b)(iii) is 126,122 shares and $44,156, respectively. All other previously granted performance-based restricted stock units shall be forfeited to the Company.
3. | Vested Benefits and Eligibility for Other Severance Plans: Your rights to any other Company benefits will be determined by the terms of the applicable plan(s). You agree that the consideration set forth above in Paragraph 2 supersedes any other severance benefits which You may be entitled to receive from the Company and that You are not entitled to any severance payments beyond those contained in said Paragraph. |
4. | General Release of Claims Against the Company: In consideration for the mutual promises set forth in this Agreement, You, on behalf of Yourself and Your assigns, heirs, executors and administrators (and Your and their legal representatives of every kind) hereby release and discharge forever the Company, both as Your employer and as sponsor and administrator of any of the employee benefit plans established for the benefit of its employees, and its predecessors, successors, assigns, divisions, subsidiaries, corporate parents, related or affiliated companies, and each of their respective current and former officers, directors, shareholders, members, employees, benefit plans, assigns, insurers, plan administrators and other plan fiduciaries, heirs, agents, counsel and representatives, including without limitation any and all management and/or supervisory employees thereof, and the successors and assigns of the foregoing (hereinafter collectively referred to as the “Released Parties”) from all claims, arbitrations, suits, proceedings, demands, costs, attorneys’ fees, monies of any kind, expenses, damages, suits, proceedings and/or causes of action of any kind and every description, which You now have or may have, whether known or unknown, suspected or unsuspected, related in any way to Your employment, the termination of Your employment and/or otherwise based on events that occurred from the beginning of time through the date You sign this Agreement. The Parties intend that this general release of claims be construed as broadly as possible and include any and all claims that may be waived by private agreement. |
By way of example only and without limiting any provision of this general release of claims, You agree that You are releasing, waiving and discharging any and all claims against the Released Parties based upon, relating to or arising out of the following:
| a) | any claims of retaliation, harassment or discrimination on any basis, including race, color, national origin or ancestry, religion, sex, age, veteran's status, disability, whistleblower status, and any other protected status arising under any federal, state, or local statute, regulatory ordinance, order, law, or other measure, including but not limited to the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act (“ADA”), the ADA Amendments Act of 2008, The False Claims Act, Executive Order No. 11246, 42 U.S.C. 1981, and the Genetic Information and Nondiscrimination Act, all as amended to the date You sign this Agreement; |
| b) | any claims based on Civil Rights Law, Texas employment discrimination laws, or any federal, state, or local law or regulation prohibiting workplace discrimination and that may apply, any applicable state human rights statutes and all other federal, state and local statues, ordinances and common law, to the fullest extent permitted by law; and |
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| c) | any claims under any other federal, state or local laws pertaining to and/or applicable to Your employment or the separation of Your employment. |
You acknowledge and agree that, absent the Compensation Committee’s approval of the partial vesting of the Restricted Stock and Performance Units, as described in Paragraphs 2(b)(i) and 2(b)(iii), respectively, all of the unvested shares of Restricted Stock and unsettled Performance Units as of Your Separation Date would have been forfeited in accordance with the terms of the applicable award agreement.
You agree that the releases in this Paragraph are intended to cover all possible legal and/or equitable relief, including but not limited to wages, back pay, front pay, benefits, compensatory damages, punitive damages, liquidated damages, damages for pain and suffering, damages for emotional distress and attorneys’ fees and costs.
5. | Release Exclusions: You further understand that nothing in this release generally prevents You from filing a charge or complaint with or from participating in an investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state, or local agency charged with the enforcement of any laws. You agree that by signing this Agreement, You are waiving Your right to individual, monetary and/or other relief from the Company or any other Released Party based on claims asserted in such a charge or complaint. Finally, You understand this does not include government awards that may be given for providing information to a government agency, nor does it limit your ability to communicate with any government agency or otherwise participate in any investigation or proceeding that may be conducted by any government agency, including providing documents or other information, without notice to the Company. Nothing in this release of claims shall be construed to waive any right that is not subject to waiver by private agreement or that may not be waived by law such as claims for workers’ compensation and unemployment benefits. |
6. | Covenant Not to Sue: Except as otherwise provided in Paragraph 5, and except for any claims based on this Agreement, You agree and covenant not to file any suit, complaint, claim, grievance or demand for arbitration, either individually or a member of a class in any class or collective action, against the Released Parties in any court, administrative agency or other forum with regard to any claim, demand, liability or obligation arising directly or indirectly out of Your employment with the Company and/or separation from employment. You further represent that no claims, complaints, or other proceedings are pending in any court, administrative agency or other forum relating directly or indirectly to Your employment with the Company and/or separation from employment. |
7. | No Admission of Liability: You acknowledge that nothing in this Agreement constitutes an admission by the Released Parties of any liability or acts of wrongdoing or acts of discrimination, nor shall it be considered evidence of such liability, wrongdoing, or unlawful discrimination. The Released Parties expressly deny any liability or alleged violation and state that payment has been made solely for the purpose of compromising any and all potential claims. |
8. | Compliance with the Older Workers Benefit Protection Act and Applicable State Laws, Advice of Counsel, Consideration, Revocation Period, Other Information: It is the express intention of the Company that this Agreement comply in all respects with the terms of the Older Workers Benefit Protection Act and all applicable federal, state, and local laws for release agreements. Accordingly, the Company is specifically advising You as follows: |
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| A. | a)This Agreement constitutes an enforceable contract, and by signing this Agreement, You are waiving certain rights that You may have against the Released Parties under the Age Discrimination in Employment Act (“ADEA”); the Older Workers Benefit Protection Act; and all federal, state, and local laws as set forth in Paragraph 4 above, based upon Your employment with the Company and/or the termination of Your employment with the Company, except any such rights or claims that may arise after the date You sign this Agreement; |
| B. | b)The consideration required to be paid and provided to You under this Agreement constitutes value to which You would not be entitled unless You sign this Agreement; |
| C. | c)You agree that You are voluntarily entering into this Agreement, that You have read and understand its legal and binding effect, that You have not been coerced in any way to sign and not revoke this Agreement, and that no promises or agreements have been made to You except those contained in this Agreement; |
d) | The Company advises You to consult with an attorney prior to signing this Agreement. You are responsible for paying that attorney’s fees and costs, if any; |
| D. | e)You have a period of twenty-one (21) calendar days after receipt of this Agreement to consider this Agreement (the “Consideration Period”), to consult with an attorney regarding its terms if You choose to do so, and to sign a copy of this Agreement, if You choose to accept it. To accept, the original of this Agreement with Your signature must be returned by overnight mail or by e-mail copy (with the original sent by regular mail) to: |
| H. | before the end of the Consideration Period. If You do not return the executed Agreement before the end of the Consideration Period, this offer shall be deemed to be withdrawn and shall be null and void; |
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| I. | f)You may revoke this Agreement at any time within seven (7) calendar days following the date on which You sign this Agreement (the “Revocation Period”), and You agree that this Agreement shall not become effective or enforceable until the Revocation Period has expired. To revoke Your signature, You must e-mail a copy to: |
| M. | no later than the seventh (7th) calendar day after You sign this Agreement; |
| O. | h)Any modification or alteration of any of the terms of this Agreement by You voids this Agreement in its entirety. |
| Q. | 10.Non-Disparagement: You agree that, except in the event that You are enforcing the terms of this Agreement, You will not publicly comment on the nature of this resignation nor will You otherwise disparage the Company and its affiliates or their respective directors, officers, and employees, regardless of whether it would rise to the level of defamation. |
11. | Remedies for Breach: You agree that the Company would be irreparably harmed if You do not fully perform all of Your obligations under this Agreement and Your performance is not specifically enforced and that, although the Company may seek and obtain damages in excess of the amounts paid hereunder, any such remedy at law would not be adequate in the event of an actual or threatened violation of Your obligations under Paragraphs 9 or 10 above. You agree that the Company, upon bringing a lawsuit to enforce its rights under this Agreement, shall be entitled to an injunction or any appropriate decree of specific performance from the court for any actual or threatened violations, regardless of whether the Company seeks or obtains any damages. You further agree that the Company will be entitled to all attorney’s fees, expert fees and costs associated with any successful court action related to Your breach. |
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| R. | 12.Applicable Law: This Agreement shall, in all respects, be interpreted, construed and governed exclusively by and under the domestic laws of the State of Texas, except to the extent that Federal law governs. |
| S. | 13.Modifications: The provisions of this Agreement may not be modified by any subsequent agreement unless the modifying agreement: (i) is in writing; (ii) specifically references this Agreement; (iii) is signed by You; and (iv) is signed and approved by an authorized representative of the Company. |
| T. | 14.Integration: This Agreement constitutes the entire agreement between You and the Company with respect to the subject matter herein, except as otherwise provided in this Paragraph. You and the Company have signed this Agreement based upon the terms set forth herein. You and the Company have not relied on any prior agreement or representation, whether oral or written, which is not set forth in this Agreement. Except as otherwise provided in this Paragraph, no prior agreement, whether oral or written, shall have any effect on the terms and provisions of this Agreement. All other prior agreements, except for the Employment Agreement and the award agreements evidencing the equity grants described in Paragraph 2(b), by You and the Company, whether oral or written, are expressly superseded and/or revoked by this Agreement. |
| U. | 15.Severability and Waiver: Each provision of this Agreement shall be enforceable independently of every other provision. Furthermore, in the event that any provision is deemed to be unenforceable for any reason, the remaining provisions shall remain effective, binding and enforceable. The failure of any party to enforce any provision of this Agreement shall not constitute a waiver of that provision, or of any other provision of this Agreement. |
| V. | 16.Section 409A: All provisions of this Agreement are intended to comply with Section 409A of the Code and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, "Section 409A") or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, if applicable, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments that are not exempt from Section 409A and that are to be made under this Agreement upon a termination of Your employment shall only be made if such termination of employment constitutes a "separation from service" under Section 409A. Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Your receipt of such |
7
| payment or benefit is not delayed until the earlier of (x) the date of Your death or (y) the date that is six months after the termination of employment (such date, the "Section 409A Payment Date"), then such payment or benefit shall not be provided to You (or Your estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are exempt from, or compliant with, Section 409A and in no event shall the Company or any of its affiliates be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by You on account of non-compliance with Section 409A. Nothing in this Agreement shall be interpreted to change the time or form of any payment that is subject to Section 409A. |
17. | Counterparts: This Agreement (and any amendment, modification and waiver in respect hereof) may be executed by facsimile or other electronic transmission and in counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one agreement binding on the parties. |
| W. | 18.Effective Date: The effective date of this Agreement shall be the eighth (8th) calendar day after the date that You sign this Agreement (the “Effective Date”), provided that You do not revoke it within seven (7) days after signing it. The date that representatives of the Company sign this Agreement shall not affect the Effective Date for any purpose under this Agreement. |
19.Other: Nothing in this Agreement shall be construed or enforced in a manner that would prevent You from testifying truthfully under oath in any court, arbitration or administrative agency proceeding, or from providing truthful information in the course of a government investigation. Nothing in this Agreement shall be construed or enforced in a manner that would interfere with Your rights under section 7 of the National Labor Relations Act, if any, to discuss or comment on Your terms and conditions of employment.
| X. | 20.Full Understanding: By signing this Agreement, You agree that You have carefully read this Agreement; that You have had a reasonable time to consider the language and effect of this Agreement; that the Company has informed You, in writing, to talk with an attorney before signing this Agreement; that You know, understand and agree with the contents of this Agreement; and that You are signing this document voluntarily because You are satisfied with its terms and conditions. |
21. | Return of All Company Property: You warrant that upon the conclusion of Your consulting duties, or when requested by the Company, You will return all property of the Company, including but not limited to, passwords to password-protected files, all confidential information( including all records, notes, data, memoranda, models, reports, lists, other documents, and any copies thereof), computer hardware or software, computers, cell phones, smartphones, files, papers, |
8
memoranda, correspondence, customer lists, vendor lists, supplier lists, financial data, credit cards, keys, tape recordings, pictures, security access cards, Company identification, and any other items of any nature which were or are the property of the Company or relate to Company’s business and that are in Your possession or under Your control. (“Company Property”), irrespective of whether such Company Property was prepared by You or not. You also agree to immediately cease using any of the Company’s tradenames and to return to the Company all advertising matter and other materials. You further agree not to retain any copies of any such Company Property in Your possession or under Your control.
You have read and fully understand this Agreement and have voluntarily signed this Agreement with the full knowledge and understanding that You are waiving valuable rights, and You acknowledge that, unless properly revoked, this Agreement is final and binding.
Remainder of Page Intentionally Left Blank
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| Z. | Signature: _/s/ Mark R. Stauffer__ |
| AA. | Name:Mark R. Stauffer |
| BB. | Date:April 6, 2022 |
Received by Company:
ORION GROUP HOLDINGS, INC.
By: /s/ Austin J. Shanfelter_______
Name: Austin J. Shanfelter
Title: Interim Chief Executive Officer
Date: April 6, 2022
10
Exhibit 99.1
Orion Group Holdings Names Austin J. Shanfelter Interim Chief Executive Officer
Mark R. Stauffer to Step Down as President and CEO
Company Reaffirms Previously Stated Financial Guidance
HOUSTON – April 7, 2022 – Orion Group Holdings, Inc. (NYSE: ORN) (the “Company”), a leading specialty construction company, today announced that Austin J. Shanfelter, Chairman of the Board of Directors, has been named interim Chief Executive Officer. Mark R. Stauffer has stepped down as President and CEO, and as a member of the Board, and will serve as an advisor to the Company. Richard L. Daerr, Jr., a current Board member, has been appointed Lead Independent Director, and will not retire at the Company’s 2022 annual meeting of stockholders as previously announced. All appointments are effective immediately.
The Company has retained a leading executive search firm and will initiate a search to identify a permanent CEO.
“On behalf of the entire Board, I want to thank Mark for his valuable contributions and years of service to Orion,” said Mr. Shanfelter. “Since joining the Company in 1999, Mark has been a driving force in positioning Orion for long-term success as the premier specialty contractor in the infrastructure, building and industrial sectors. We wish him all the best in his future endeavors.”
Mr. Shanfelter continued, “I am honored to take on the role of interim CEO and look forward to continuing to work with the talented Board and entire Orion team. Orion is well positioned for 2022 and we remain confident in our previously stated financial guidance for the year of adjusted EBTIDA in the mid-$30 million range. I have tremendous confidence in our business and am optimistic about the opportunities ahead.”
Mr. Stauffer said, “It has been a privilege to lead Orion and this exceptional team. I am proud of all that we have achieved together and confident that the Company is well positioned for the future. I look forward to working with Austin and the team as an advisor to ensure a smooth transition.”
About Orion Group Holdings, Inc.
Orion Group Holdings, Inc., a leading specialty construction company serving the infrastructure, industrial and building sectors, provides services both on and off the water in the continental United States, Alaska, Canada and the Caribbean Basin through its marine segment and its concrete segment. The Company’s marine segment provides construction and dredging services relating to marine transportation facility construction, marine pipeline construction, marine environmental structures, dredging of waterways, channels and ports, environmental dredging, design, and specialty services. Its concrete segment provides turnkey concrete construction services including pour and finish, dirt work, layout, forming, rebar, and mesh across the light commercial, structural and other associated business areas. The Company is headquartered in Houston, Texas with regional offices throughout its operating areas.
Forward-Looking Statements
Exhibit 99.1
The matters discussed in this press release may constitute or include projections or other forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, the provisions of which the Company is availing itself. Certain forward-looking statements can be identified by the use of forward-looking terminology, such as 'believes', 'expects', 'may', 'will', 'could', 'should', 'seeks', 'approximately', 'intends', 'plans', 'estimates', or 'anticipates', or the negative thereof or other comparable terminology, or by discussions of strategy, plans, objectives, intentions, estimates, forecasts, outlook, assumptions, or goals. In particular, statements regarding future operations or results, including those set forth in this press release and any other statement, express or implied, concerning future operating results or the future generation of or ability to generate revenues, income, net income, profit, EBITDA, EBITDA margin, or cash flow, including to service debt, and including any estimates, forecasts or assumptions regarding future revenues or revenue growth, are forward-looking statements. Forward looking statements also include estimated project start date, anticipated revenues, and contract options which may or may not be awarded in the future. Forward looking statements involve risks, including those associated with the Company's fixed price contracts that impacts profits, unforeseen productivity delays that may alter the final profitability of the contract, cancellation of the contract by the customer for unforeseen reasons, delays or decreases in funding by the customer, levels and predictability of government funding or other governmental budgetary constraints and any potential contract options which may or may not be awarded in the future, and are the sole discretion of award by the customer. Past performance is not necessarily an indicator of future results. In light of these and other uncertainties, the inclusion of forward-looking statements in this press release should not be regarded as a representation by the Company that the Company's plans, estimates, forecasts, goals, intentions, or objectives will be achieved or realized. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. The Company assumes no obligation to update information contained in this press release whether as a result of new developments or otherwise.
Contacts
Orion Group Holdings Inc.
Francis Okoniewski, Vice President Investor Relations
(346) 616-4138
fokoniewski@orn.net
www.oriongroupholdingsinc.com
Document and Entity Information |
Apr. 06, 2022 |
|---|---|
| Document and Entity Information [Abstract] | |
| Document Type | 8-K |
| Document Period End Date | Apr. 06, 2022 |
| Entity File Number | 1-33891 |
| Entity Registrant Name | ORION GROUP HOLDINGS, INC. |
| Entity Incorporation, State or Country Code | DE |
| Entity Tax Identification Number | 26-0097459 |
| Entity Address, Address Line One | 12000 Aerospace |
| Entity Address, Adress Line Two | Suite 300 |
| Entity Address, City or Town | Houston |
| Entity Address, State or Province | TX |
| Entity Address, Postal Zip Code | 77034 |
| City Area Code | 713 |
| Local Phone Number | 852-6500 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common stock, $0.01 par value per share |
| Trading Symbol | ORN |
| Security Exchange Name | NYSE |
| Entity Emerging Growth Company | false |
| Entity Central Index Key | 0001402829 |
| Amendment Flag | false |