Employment Transition Agreement dated January 17, 2023, by and between Limbach Facility Services LLC, Limbach Holdings, Inc. and Charles A. Bacon, III

Exhibit 10.4

EMPLOYMENT TRANSITION AGREEMENT

THIS EMPLOYMENT TRANSITION AGREEMENT (including the Exhibits and Schedules hereto, this “Agreement”), dated as of January 17, 2023, is by and between Limbach Facility Services, LLC, a Delaware limited liability company (“Limbach Services” and the successor to 1347 Capital Corp., a Delaware corporation) (“1347”), Limbach Holdings, Inc. a Delaware corporation (the “Company”) and the parent of Limbach Services and Charles A. Bacon, III (the “Executive”).

WHEREAS, reference is made to the Employment Agreement by and between Limbach Services as successor to 1347 and Executive, dated as of March 23, 2016 (the “Employment Agreement”);

WHEREAS, capitalized terms used in this Agreement that are not defined shall have the meanings ascribed to them as are set forth in the Employment Agreement;

WHEREAS, reference is also made to the Limbach Holdings, Inc. Amended and Restated Omnibus Incentive Plan, as then amended or earlier similar plans (collectively, the “Omnibus Plan”);

WHEREAS, Executive is currently employed as the President and Chief Executive Officer of Limbach Services and serves in the same capacities for the Company and currently serves on the Board of Directors of the Company (the “Board”);

WHEREAS, the Board believes that succession planning is in the best interests of the Company and its stockholders and succession planning is a very high priority for the Board;

WHEREAS, as part of its succession planning process, the Board, Executive and certain members of the Company’s senior management team (in conjunction with Board direction, oversight and input) formulated a process to evaluate and select as successor for Executive in his roles as President and Chief Executive Officer;

WHEREAS, in conjunction with this Agreement, the Company is also announcing that as of March 29, 2023 Michael M. McCann, the Company’s current Executive Vice President and Chief Operating Officer will be named, promoted and elevated to the role of the Company’s President and Chief Executive Officer (the “Transition”);

WHEREAS, the Company believes this Agreement is in the best interests of the Company and its stockholders, insofar as it is establishing an orderly transition of the responsibilities of the Company’s President and Chief Executive Officer and, thereafter, providing an amicable, coordinated and planned Transition, and providing Executive with certain benefits in exchange for Executive releasing the Company and related persons or entities from any claims as it is customary in separation agreements for the departing employee to release the employer from any possible claims, even if the employer believes, as is the case here, that no such claims exist;

WHEREAS, subject to the other provisions of this Agreement, in order to facilitate the Board’s succession planning, Executive has agreed to continue to serve in his current roles with the Company and its affiliates until March 28, 2023;

WHEREAS, subject to the other provisions of this Agreement, in order to facilitate the Board’s succession planning, Executive has agreed, beginning on March 29, 2023, to continue to serve the Company as a Special Advisor to the Company until the Termination Date. The Senior Advisor role will be the sole capacity under which Executive would serve the Company (other than as a member of the Company’s Board) as more fully set forth in this Agreement;

WHEREAS, in order to facilitate the Board’s succession planning, Executive has agreed to continue to serve with the Company and its affiliates until the earliest of (i) April 30, 2023, (ii) Executive’s death or Disability, (iii) the date of Executive’s termination of employment for Good Reason (as defined below), (iv) the date the Executive’s termination is for Cause and (v) the date the Company terminates Executive’s employment for any reason (the last day of Executive’s employment with the Company, the “Termination Date”); and

WHEREAS, the Company, Limbach Services and Executive desire to set forth each of their respective rights and obligations in respect of Executive’s departure and Transition from the Company and its affiliates.

NOW, THEREFORE, in consideration of the covenants and conditions set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

The parties agree that the entitlements set forth in this Section 4 shall supersede those entitlements set forth in the Employment Agreement. Executive acknowledges and agrees that Executive’s rights and benefits under this Section 4 are subject to the satisfaction of the Release Conditions and Executive’s compliance in all material respects with the Employment Agreement (as modified herein) and this Agreement, subject to notice from the Company of any such noncompliance and not less than 10 days to cure if capable of cure, and Executive shall forfeit all rights and benefits under this Section 4 if the Release Conditions are not satisfied, if Executive does not comply with the terms of the Release or if Executive materially breaches any provision of the Employment Agreement (including, but not limited to, the post-employment covenants in the Employment Agreement that survive and are modified herein) and/or this Agreement. Any outstanding amount payable to Executive hereunder shall be paid by the Company to the legal representative of his estate in the event of his death prior to such payment being made by the Company.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year above written.

[Signature Page to Employment Transition Agreement]

EXHIBIT A
(Release)

Exhibit A—Employee Transition Agreement

FORM OF AGREEMENT AND GENERAL RELEASE

THIS AGREEMENT AND GENERAL RELEASE (the “Agreement and General Release”) is made and entered into on [●], 2023 by and between Charles A. Bacon, III (“Executive”) and Limbach Facility Services, LLC, a Delaware limited liability company (“Limbach Services” and the successor to 1347 Capital Corp., a Delaware corporation) (“1347”)(“Employer”).

WHEREAS, Executive has been employed by Employer pursuant to that certain employment agreement between Executive and Employer dated March 23, 2016 (the “Employment Agreement;” capitalized terms used without being capitalized herein shall have the meanings ascribed to them in the Employment Agreement);

WHEREAS, Executive, the Employer and Limbach Holdings, Inc., a Delaware Corporation (“LHI”), have entered into an Employment Transition Agreement that in part supersedes the Employment Agreement (the “Transition Agreement”);

WHEREAS, the parties wish to resolve all outstanding claims and disputes between them relating to such employment;

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in this Agreement and General Release, the sufficiency of which the parties acknowledge, it is agreed as follows:

1.            In consideration for Executive’s promises, covenants and agreements in this Agreement and General Release, Employer agrees to make the payments and provide the other benefits to and on behalf of Executive under Sections 4 and 5 of the Transition Agreement, in accordance with the terms and subject to the conditions of such Transition Agreement.

2.            For the avoidance of doubt, Executive shall not be eligible for any benefits under Employer’s severance plan, if any, or any other agreement or arrangement providing for benefits upon a separation from service other than as set forth in the Transition Agreement; provided, however, that nothing herein shall affect Executive’s rights pursuant to Sections 4 and 5 of the Transition Agreement or Employer’s obligations and liabilities pursuant to Sections 4 and 5 of the Transition Agreement.

3.            The parties agree that the payments described in Section 1 of this Agreement and General Release are in full, final and complete settlement of all claims Executive may have against Employer, LHI, their subsidiaries, their respective past and present affiliates, and the respective officers, directors, owners, members, employees, agents, advisors, consultants, insurers, attorneys, successors and/or assigns of each of the foregoing, each in their capacity as such (collectively, the “Releasees”).

4.            Nothing in this Agreement and General Release shall be construed as an admission of liability by Employer or any other Releasee.

5.            To the extent permitted by applicable law and/or subject to any actions permitted under Section 8 hereof, Executive agrees that he will not encourage or assist any person to litigate

6.            claims or file administrative charges against Employer or any other Releasee, unless required to provide testimony or documents pursuant to a lawful subpoena or other compulsory legal process, in which case he agrees to notify Employer immediately of his receipt of such subpoena so that Employer has the opportunity to contest the same. If any court has or assumes jurisdiction of any action against Employer or any of its affiliates on behalf of Executive, Executive will request that court to withdraw from or dismiss the matter with prejudice. Executive further represents that he has reported to Employer in writing any and all known work-related injuries that he has suffered or sustained during his employment with Employer or its affiliates.

7.            Executive represents that he has not filed any complaints or charges against Employer or any of its affiliates with the Equal Employment Opportunity Commission, or with any other federal, state or local agency or court.

8.            Executive fully and forever releases and discharges Employer and all other Releasees from any and all legally waivable claims, liabilities, damages, demands, and causes of action or liabilities of any nature or kind, whether now known or unknown, arising out of or in any way connected with Executive’s employment with Employer or any of its affiliates or the termination of such employment; provided, however, that nothing in this Agreement and General Release shall either waive any rights or claims of Executive (i) that arise after Executive signs this Agreement and General Release; (ii) to enforce the terms of this Agreement and General Release the Transition Agreement or the terms of the Employment Agreement that survive the termination of Executive’s employment; (iii) for the provision of accrued benefits conferred to Executive or his beneficiaries under the terms of Employer’s medical, dental, life insurance or defined contribution retirement benefit plans or any equity plan to which Executive participated in connection with his employment with Employer (including any rights Executive has a shareholder under such plans); (iv) based on Executive’s existing rights to indemnification, by the Employer or its affiliates pursuant to the Employment Agreement, Employer’s or affiliate’s governing documents or other written arrangements for acts committed during the course of Executive’s employment or existing rights to coverage under any; and (v) based on Executive’s existing coverage under any directors and officers insurance policy in accordance with the terms of such policy (collectively, the “Surviving Claims”). This release includes but is not limited to claims arising under federal, state or local laws concerning employment discrimination, termination, retaliation and equal opportunity, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, as amended, the Worker Adjustment and Retraining Notification Act of 1988, as amended, the Employee Retirement Income Security Act of 1974, as amended (ERISA) (including but not limited to fiduciary claims), claims for attorneys’ fees or costs, any and all statutory or common law provisions relating to or affecting Executive’s employment by Employer or its affiliates, and any and all claims in contract, tort, or premised on any other legal theory. Executive acknowledges that he is releasing claims based on age, race, color, sex, sexual orientation or preference, marital status, religion, national origin, citizenship, veteran status, disability and other legally protected categories. This provision is intended to constitute a general release of all of Executive’s presently existing covered claims against the Releasees, to the maximum extent permitted by law. Notwithstanding anything herein to the contrary, this Agreement and General Release does not purport to waive any claim for worker's compensation or unemployment benefits, and does not purport to waive or affect any claim that cannot be released by an agreement voluntarily entered into between private parties or waive the ability to report violations of any law administered by the Securities and Exchange Commission or Occupational Safety and Health Administration, or make other disclosures protected under the whistleblower provisions of state or federal law.

9.            Nothing in this Agreement and General Release shall be construed to prevent Executive from filing a charge or complaint, including a challenge to the validity of this Agreement and General Release, with any governmental agency or from participating in or cooperating with any investigation conducted by any governmental agency. Nevertheless, Executive agrees and understands that this Agreement and General Release waives all claims and rights to monetary or other recovery for any legal claims (other than the Surviving Claims) to the fullest extent permitted by law; and any claims based upon any other theory, whether legal or equitable, arising from or related to any matter or fact arising out the events giving rise to this Agreement and General Release; provided, however, that nothing in this Agreement and General Release shall either waive any rights or claims of Executive with respect to the Surviving Claims. Notwithstanding the foregoing, this Agreement does not waive Executive’s rights to collect a “whistleblower” or similar award (including in accordance with the provisions of and rules promulgated under Section 21f of the Securities and Exchange Act or Section 806 of the Sarbanes-Oxley Act), to the extent the right to collect such an award may not be waived by private agreement.

10.            Executive acknowledges that all confidential information regarding Employer’s or any of its affiliates’ businesses compiled, created or obtained by, or furnished to, Executive during the course of or in connection with his employment with Employer or any of its affiliates is the exclusive property of Employer or such affiliate. Upon or before execution of this Agreement and General Release, Executive will endeavor to return to Employer all originals and copies of any material containing confidential information in his possession, custody or control, and Executive further agrees that he will not, directly or indirectly, use or disclose such information. For purposes of this Section 9, “confidential information” does not include information that is or becomes known publicly other than as a result (i) of Executive's acts, (ii) of Executive's omissions or (iii) Executive breaching obligations to Employer. Executive will also return to Employer upon or before execution of this Agreement and General Release any other items in his possession, custody or control that are the property of Employer, including, but not limited to, his files, credit cards, identification card, data storage devices, passwords and office keys. Notwithstanding any provision in this Section 9 or any other agreement between Executive and Employer or any policy of Employer to the contrary, Executive may retain copies of his contact list, calendar and documents relating to the terms and conditions of his employment.

Executive acknowledges that (i) he has been given at least twenty-one (21) calendar days to consider this Agreement and General Release and that modifications hereof which are mutually agreed upon by the parties hereto, whether material or immaterial, do not restart the twenty-one day period; (ii) he has seven (7) calendar days from the date he executes this Agreement and General Release in which to revoke it; and (iii) this Agreement and General Release will not be effective or enforceable nor the amounts set forth in Section 1 paid unless the seven-day revocation period ends without revocation by Executive. Revocation can be made by delivery and receipt of a written notice of revocation to Melissa DiMuro, Chief People & Culture Officer, Limbach,5102 W Laurel Street, Ste 400, Tampa, FL 33607, by midnight on or before the seventh calendar day after Executive signs the Agreement and General Release.

11.            Executive acknowledges that he has been advised to consult with an attorney of his choice with regard to this Agreement and General Release. Executive hereby acknowledges that he understands the significance of this Agreement and General Release, and represents that the terms of this Agreement and General Release are fully understood and voluntarily accepted by him.

12.            Any non-disclosure provision in this Agreement and General Release does not prohibit or restrict Executive (or Executive’s attorney) from responding to any inquiry about this Agreement and General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or governmental entity, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive understands and acknowledges that he does not need the prior authorization of the Employer to make any such reports or disclosures and that he is not required to notify the Employer that he has made such reports or disclosures.

13.            Executive shall not make any oral or written statements, either directly or through other persons or entities, which are (i) disparaging to the Employer or any of the Employer’s affiliates, or the management, officers, directors, services, products or operations thereof, or (ii) likely to adversely affect the business relationship of the Employer or its affiliates with the public generally or with any of their respective customers, vendors, suppliers, licensors, lessors, joint venturers, associates, consultants, agents, partners, contractors or employees. Notwithstanding the foregoing, it shall not be a violation of this provision for Executive to make truthful statements when required by compulsory legal process or as otherwise may be required by law.

14.            This Agreement and General Release shall be binding on Employer and Executive and upon their respective heirs, representatives, successors and assigns, and shall run to the benefit of the Releasees and each of them and to their respective heirs, representatives, successors and assigns.

15.            This Agreement and General Release (and, to the extent explicitly provided herein, the Employment Agreement (as amended by the Transition Agreement) and the Transition Agreement) set forth the entire agreement between Executive and Employer, and fully supersedes any and all prior agreements or understandings between them regarding its subject matter; provided, however, that nothing in this Agreement and General Release is intended to or shall be construed to limit, impair or terminate (i) any obligation of Executive pursuant to any non-competition, non-solicitation, confidentiality or intellectual property agreements that have been signed by Executive where such agreements by their terms continue after Executive’s employment with Employer terminates, including, but not limited to, the provisions of Sections 6, 7 and 8 of the Employment Agreement (as such provisions are amended or modified by the Transition Agreement) or (ii) any obligation of Employer pursuant to the Transition Agreement. This Agreement and General Release may only be modified by written agreement signed by both parties.

16.            The Employer and Executive agree that in the event any provision of this Agreement and General Release is deemed to be invalid or unenforceable by any court or administrative agency of competent jurisdiction, or in the event that any provision cannot be modified so as to be valid and enforceable, then that provision shall be deemed severed from the Agreement and General Release and the remainder of the Agreement and General Release shall remain in full force and effect.

17.            This Agreement and General Release will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflicting provision or rule (whether of the State of New York or any other jurisdiction) that would cause the laws of any jurisdiction other than the State of New York to be applied. In furtherance of the foregoing, the internal law of the State of New York will control the interpretation and construction of this Agreement and General Release, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply.

18.            All judicial proceedings brought against any party arising out of or relating to this Agreement and General Release, or any obligations or liabilities hereunder, shall be brought in the United States District Court for the Southern District of New York, provided that if the judicial proceeding shall not satisfy applicable federal jurisdiction requirements, such dispute shall be brought in the state courts of the State of New York. By executing and delivering this Agreement and General Release, each party irrevocably: accepts generally and unconditionally the exclusive jurisdiction and venue of such courts and waives, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Notwithstanding the foregoing, the parties may seek injunctive or equitable relief to enforce the terms of this Agreement and General Release in any court of competent jurisdiction.

19.            Each of the parties hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement and General Release.

20.            The language of all parts of this Agreement and General Release in all cases shall be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties.

[Signatures on Following Page]

Exhibit A—Employee Transition Agreement

PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

EXHIBIT B
(RSU Schedule)
(as of January 15, 2023)

EXHIBIT C
(Illustration of such pro-ration based on a April 30, 2023 Termination Date)

Schedule 4a.v.
(Additional Benefits)

The Company will use reasonable commercial efforts to provide during the Benefit Continuation Period the following, but only to the extent that: (i) such benefits are legally permissible during a post-employment period (i.e., after the Termination Date); (ii) the plan documents and/or programs governing and related to such benefits permit under their current terms the ability for such benefits to continue post-employment (i.e., after the Termination Date); (iii) the implementation of such benefits post-employment (i.e., after the Termination Date) does not cause the Company or its subsidiaries to incur fees, expenses, charges or similar expenses or be subject to additional liabilities that would be outside those normally incurred by the Company or its subsidiaries in providing such benefits to other senior executives at the Company and/or (iv) such benefits would not violate any rule or regulation imposed by the Securities Exchange Commission and or any stock exchange that the Company is then listed on:

To the extent the conditions in the first paragraph of this Schedule are met, then the continuation of the benefits listed on this Schedule would continue through the Benefit Continuation Period. In such cases, the Company or its subsidiaries would be responsible during the Benefit Continuation Period to pay such amounts for these benefits as it is paying for them on the Termination Date.

Executive agrees to execute such documentation as may be reasonably required to effectuate the details in this Schedule.