Exhibit 10.1


 


SEPARATION AGREEMENT WITH WAIVER AND RELEASE


 


This Separation Agreement
with Waiver and Release (“Agreement”) is executed this 20th day of October, 2021 by and between Willdan Group, Inc.,
a Delaware corporation (the “Company”) and Adam Procell, an individual (“Executive”).


 


WHEREAS, Executive and the
Company (collectively, the “Parties”) desire to amicably resolve and conclude any issues related to the termination
of Executive’s employment with the Company;


 


THEREFORE, the Parties agree
as follows:


 


1.             Separation
Date. The Parties acknowledge that Executive’s employment with the Company will terminate on October 19, 2021 (the
 “Separation Date”) on the terms and conditions set forth in this Agreement. Effective on the Separation Date, Executive
shall resign from all positions with the Company’s affiliates and this Agreement shall provide sufficient notice of such resignations.


 


Consulting.
For a period ending on the earlier of (i) six (6) months following the Separation Date, or (ii) the date Executive commences
other full-time employment, Executive shall provide the Company with transition assistance in the capacity of a consultant (such period,
the “Consulting Period”). During the Consulting Period, Executive shall retain access to his Company email for such
services but shall not hold himself out as an employee of the Company. The payments provided herein shall constitute sufficient consideration
for the consulting services. Executive shall not be required provide more than four (4) hours per week of consulting services during
the Consulting Period.


 


2.             Consideration.
The Company shall pay Executive (or in the event of Executive’s death, Executive’s estate) the following:


 


2.1.            The
gross sum of $185,390.40, subject to tax withholdings and other authorized deductions (“Severance Pay”), payable in
equal installments in accordance with the Company’s standard payroll schedule for six months from the Separation Date with the first
installment concurrent with the Company’s next regular payroll date following the Effective Date of this Agreement with such installment
to include any unpaid amounts accrued from the Separation Date, subject to Section 21 hereof.


 


2.2.            Pursuant
to Section 3.2(f) of the Willdan Group, Inc. Amended and Restated 2008 Performance Incentive Plan (the “Plan”),
and notwithstanding anything to the contrary in any Employee Restricted Stock Award Agreement or any Performance-Based Restricted Stock
Unit Grant between Executive and the Company, the Administrator (as that term is defined in the Plan) will accelerate the vesting of all
of Executive’s outstanding Restricted Stock and Performance-Based Restricted Stock Units at target, such that all of Executive’s
Restricted Stock and Performance-Based Restricted Stock Units shall be fully vested upon the Separation Date.


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB




 






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3.             COBRA.
Executive understands and agrees that Executive’s right to benefits under the Company’s health and welfare benefit program,
if any, shall be limited to those set forth under COBRA and the provisions of the American Recovery and Reinvestment Act of 2009.




 


In return for Executive’s release of claims
and other promises in this Agreement, the Company, or its designee, will provide Executive with a COBRA notice for Executive’s
election.  Executive’s rights, if any, regarding continuation of group health insurance coverage will thereafter be governed
by the Consolidated Omnibus Budget Reconciliation Act ("COBRA").  Executive acknowledges and agrees that these
benefits require affirmative action on Executive’s part to enroll in accordance with such third-party procedures and if Executive
fails to so enroll within three months of the Separation Date Executive waives and forfeits Executive’s rights to the benefits
identified in this Section.  If the Executive timely elects continued coverage under COBRA after the Separation Date, the Company
will pay 100% of the Executive’s medical, dental and vision insurance premium for up to December 31, 2021 (“COBRA
Subsidized Benefit”).  The Executive shall be eligible to receive such benefit until the earliest of (i) December 31,
2021, (ii) the date Executive is no longer eligible to receive COBRA continuation coverage, or (iii) the date on which Executive
becomes eligible to receive substantially similar coverage from another employer.  Executive may continue with the medical, dental
and vision insurance coverage under COBRA after the COBRA Subsidized Benefit provided herein ends, at Executive’s own expense and
as applicable.


 


4.             Release
of Claims.


 


4.1.            In
consideration of the benefits set forth in this Agreement, Executive on his own behalf and on behalf of his descendants, dependents,
heirs, executors, administrators, assigns and successors, and each of them in their capacity as such, hereby acknowledges full and complete
satisfaction of and releases and discharges and covenants not to sue the Company, its divisions, subsidiaries, parents, or affiliated
corporations, past and present, and each of them, as well as its and their assignees, successors, directors, officers, stockholders,
partners, representatives, attorneys, agents or employees, past or present, or any of them, each in their capacity as such (individually
and collectively, “Releasees”), from and with respect to any and all claims, agreements, obligations, demands and
causes of action, known or unknown, suspected or unsuspected, arising out of or in any way connected with Executive’s employment
or any other relationship with or interest in the Company or the termination thereof, including without limiting the generality of the
foregoing, any claim for severance pay, profit sharing, bonus or similar benefit, equity-based compensation, pension, retirement, life
insurance, health or medical insurance or any other fringe benefit, or disability, or any other claims, agreements, obligations, demands
and causes of action, known or unknown, suspected or unsuspected resulting from any act or omission by or on the part of Releasees committed
or omitted prior to the date of this Agreement, including, without limiting the generality of the foregoing, any claim under Title VII
of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal, state or
local law, regulation or ordinance (collectively, the “Claims”); provided, however, that nothing in this release is
intended to release or waive rights: (a) that cannot be released as a matter of law, including, without limitation, any rights to
COBRA, workers’ compensation, or unemployment insurance benefits; (b) to accrued, vested benefits under any employee benefit,
stock, savings, insurance, retirement or pension plan of the Company; (c) arising after the Effective Date, including the right
to enforce this Agreement; or (d) any rights to indemnification, contribution, advancement or defense pursuant to and in accordance
with the Company’s by-laws, articles of incorporation, operating agreements, any liability insurance policy maintained by the Company,
that certain Indemnification Agreement between the Company and Executive dated June 12, 2020 (the “Indemnification Agreement”),
or applicable law.


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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4.2.            The
Company, on behalf of itself and the Releasees, irrevocably and unconditionally releases, waives, and forever discharges Executive from
any and all claims, demands, actions, causes of action, costs, fees, and all liability whatsoever, whether known or unknown, fixed or
contingent, that it and/or they have, had, or may have against Executive, up to and including the date each party executes this Agreement.
This release includes, without limitation, claims at law or equity or sounding in contract (express or implied) or tort, claims arising
under any federal, state, county, international or local laws, of any jurisdiction. Nothing herein is intended to prevent the Releasees
from enforcing this Agreement and nothing herein waives any of Releasees' claims that arise after the date the Company executes this
Agreement.


 


4.3.            The
Parties hereby expressly waive any and all rights or benefits conferred by the provisions of section 1542 of the California Civil Code
(or any similar, comparable or equivalent provision) and expressly consent that this Agreement shall be given full force and effect according
to each and all of its express terms and conditions, including those relating to unknown and unsuspected claims, demands and causes of
action, if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. Section 1542,
waived by the Parties herein, provides:


 


“A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”


 


The Parties acknowledges that either Party may
discover claims, demands, causes of action or facts in addition to or different from those which that Party now knows or believes to
exist with respect to the subject matter of this Agreement and which, if known or suspected at the time of executing this Agreement,
may have materially affected its terms.  Nevertheless, each Party hereby waives, as to the Claims, any claims, demands, and
causes of action that might arise as a result of such different or additional claims, demands, causes of action or facts.


 


5.             Company
Property; Confidential Information. On the Separation Date, Executive shall return all company property to the Company. Notwithstanding
anything to the contrary in this Agreement, Executive may retain Executive’s contact lists, whether in electronic or paper form
(e.g. rolodex, Outlook contacts, etc.) and copies of documents related to Executive’s compensation and benefits.


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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6.             Permitted
Disclosures/Defend Trade Secrets Act. Nothing in this Agreement, any other agreement between Executive and the Company, or any
other policies of the Company shall prohibit or restrict Executive or Executive’s attorneys from: (a) making any disclosure
of relevant and necessary information or documents in any action, investigation, or proceeding relating to this Agreement, or as required
by law or legal process, including with respect to possible violations of the law; (b) participating, cooperating, or testifying
in any action, investigation, or proceeding with, or providing information to, any governmental agency or legislative body, any self-regulatory
organization, and/or pursuant to the Sarbanes-Oxley Act; or (c) accepting any U.S. Securities and Exchange Commission awards. Notwithstanding
any preexisting obligations with respect to the Company’s confidential information, pursuant to the federal Defend Trade Secrets
Act, Executive cannot be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret
if that disclosure is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly,
or to any attorney, and for the sole purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint
or other document filed in a lawsuit or similar proceeding, provided that filing is made under seal.


 


7.             Non-Disparagement.


 


7.1.            Executive
agrees that he will not disparage the Company by making intentionally false or injurious statements (oral or written) to the press or
media, on social media, to the Company’s current or former employees, or to the Company’s clients, investors, referral sources
or other business partners that discredit or detract from the reputation of the Company. Likewise, the Company, on behalf of its board
members and executives with ability to speak on the matter, agrees to refrain from disparaging Executive by making intentionally false
or injurious statements (oral or written) to the press or media, on social media, to Employer’s current or former employees, to
Employer’s clients, investors, or to Executive’s referral sources or other business partners or to Executive’s employers,
potential employers, clients, investors, referral source or other business partners, that discredit or detract from the reputation of
Executive. Notwithstanding the foregoing, nothing herein will prohibit either party from responding truthfully to defamatory statements
made by the other.


 


7.2.            The
Company will respond to any inquiry by a prospective employer of Executive by referring all inquiries to the Chief Executive Officer,
who will provide a positive reference. The Company will not contest any application Executive may make for unemployment insurance benefits
and will respond truthfully to any inquiries from any governmental agency concerning Executive.


 


7.3.            If
asked by any third parties about Executive’s employment with the Company, Executive may respond that he voluntarily resigned from
employment with the Company. If specifically asked, the Company will confirm that Executive resigned from the Company.


 


8.             No
Transferred Claims. Executive represents and warrants to the Company that he has not heretofore assigned or transferred to any
person not a party to this Agreement any released matter or any part or portion thereof.


 


9.             No
Wrongdoing. This Agreement shall not be offered or received in evidence in this or any other action or proceeding as an admission
or conclusion of liability or wrongdoing of any nature by either Executive or the Company.


 


10.           Successors;
Assigns. This Agreement is binding upon, and shall inure to the benefit of, the parties’ respective successors, assigns,
administrators and legal representatives, and Executive’s heirs, executors. Without limiting the generality of the preceding sentence,
the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such succession had taken place.  As used in this Agreement,
 “Company” shall mean the Company as hereinbefore defined and any successor or assignee, as applicable, which assumes and
agrees to perform this Agreement by operation of law or otherwise.


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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11.           Consideration
and Revocation Periods – Notice.


 


		a.	Executive
                                            acknowledges that Executive already has attained the age of 40 and understands that this
                                            is a full release of all existing rights and claims whether currently known or unknown including,
                                            but not limited to, claims for age discrimination under the Age Discrimination in Employment
                                            Act (ADEA). This Agreement is intended to comply with the Older Workers Benefit Protection
                                            Act.



 


		b.	Executive
                                            further acknowledges that Executive has been advised to consult with an attorney of Executive’s
                                            own choosing before executing this Agreement, in which Executive waives important rights,
                                            including those under the Age Discrimination in Employment Act.



 


		c.	Executive
                                            also acknowledges that Executive has read and understands this Separation Agreement.



 


		d.	Executive
                                            believes this Agreement to be a reasonable and acceptable resolution of any and all outstanding
                                            issues between the Parties.



 


		e.	By
                                            executing this Agreement, Executive agrees Executive is signing the Agreement voluntarily,
                                            with full knowledge, and without coercion. Executive also acknowledges that Executive has
                                            been afforded at least 21 calendar days to consider the meaning and effect of this Agreement
                                            and to discuss the contents and meaning of this Agreement, as well as the alternatives to
                                            signing this Agreement, with an attorney of Executive’s choosing, and has taken advantage
                                            of that opportunity to the extent Employee wished to do so. Executive agrees that the 21-day
                                            consideration period began on the date this Agreement first was delivered to Executive and
                                            that if the Company changes any of the terms of the offer contained in this Agreement (whether
                                            the changes are material or not), the 21-day consideration period shall not be restarted
                                            but shall continue without interruption.



 


		f.	Executive
                                            understands that the releases contained in this Agreement do not extend to any rights or
                                            claims that Executive has under the Age Discrimination in Employment Act that first arise
                                            after execution of this Agreement.



 


		g.	If
                                            Executive signs and returns this Agreement before the 21-day consideration period expires,
                                            Executive agrees that Executive knowingly and voluntarily has accepted the shortening of
                                            the 21-day consideration period and that the Company has not promised Executive anything
                                            or made any representations that are not contained in this Agreement. In addition, if Executive
                                            signs this Agreement before the 21-day consideration period expires, Executive acknowledges
                                            and affirms that the Company has not threatened to withdraw or alter the offer contained
                                            in this Agreement prior to the expiration of the 21-day consideration period.



 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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		h.	Executive
                                            has seven (7) calendar days following the Executive’s execution of this Agreement
                                            to revoke the Executive’s release and waiver of rights under the ADEA.  Any revocation
                                            during this period must be submitted in writing and state, “I hereby revoke my release
                                            and waiver of rights under the ADEA as noted in our Separation Agreement With Waiver and
                                            Release.” The revocation must be personally delivered to the Company’s Chief
                                            Executive Officer or his/her designee, or mailed to 2401 E. Katella Ave. Suite 300,
                                            Anaheim, California 92806 and received within seven (7) calendar days after Executive’s
                                            execution of this Agreement. If the last day of the revocation period falls on a Sunday or
                                            legal holiday in the state of California, then the revocation period shall not expire until
                                            the next following day which is not a Sunday or legal holiday in the state of California.
                                            If Executive does not revoke this Agreement during the seven-day revocation period, this
                                            Agreement shall become effective and enforceable on the eighth day after Executive executes
                                            this Agreement (“Effective Date”).



 


12.           Withholding
Taxes.  Notwithstanding anything herein to the contrary, the Company may withhold (or cause there to be withheld, as the
case may be) from any amounts otherwise due or payable under or pursuant to this Agreement such federal, state and local income, employment,
or other taxes as may be required to be withheld pursuant to any applicable law or regulation.


 


13.           Section Headings;
Number and Gender. The section headings of, and titles of paragraphs and subparagraphs contained in this Agreement are for the
purpose of convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation
thereof.  As used herein, where the context requires, the singular shall include the plural, the plural shall include the singular,
and any gender shall include all other genders.


 


14.           Governing
Law. This Agreement shall be governed by and construed under the laws of the State of California without reference to its conflicts
of laws provisions. Jurisdiction and venue of any action pertaining to this Agreement shall be in Orange County, California.


 


15.           Entire
Agreement. This Agreement, the Indemnification Agreement, and that certain Non-Compete Agreement between Willdan Energy Solutions,
Lime Energy Co., and Executive (the “Non-Compete Agreement”) constitute the entire agreement between the Parties with
respect to the matters within its scope and supersedes any other agreement or understanding with respect to such matters. The Company
and Executive acknowledge that the other party has not made, and in executing this agreement, neither has relied upon, any representations,
promises or inducements, except to the extent that the same are expressly set forth in this Agreement. The Parties hereby acknowledge
that Executive’s obligations under Section 2.2 and 2.4 of the Non-Compete Agreement shall terminate on the Separation Date.


 


16.           Severability.
If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, then such provision
shall be severed, and all other provisions of this Agreement shall remain in full force and effect.


 


17.           Modification. 
This Agreement may not be amended, modified or changed, in whole or in part, except by a formal, definitive written agreement expressly
referring to this Agreement, which agreement is executed by both of the parties hereto


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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18.           Waiver. 
Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege
with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. 
No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.


 


19.           Mediation. 
Any controversy arising out of or relating to this Agreement, the enforcement or interpretation of any of this Agreement, or because
of an alleged breach, default, or misrepresentation in connection with any of the provisions of any this Agreement, including (without
limitation) any state or federal statutory claims, shall be submitted to mediation in Orange County, California, before a mediator selected
from Judicial Arbitration and Mediation Services, Inc. or its successor (“JAMS”), or if JAMS is no longer able
to supply the mediator, such mediator shall be selected from the American Arbitration Association; provided, however, that provisional
injunctive relief may, but need not, be sought in a court of law while mediation is pending.  All matters not resolved by mediation
may be litigated.  The parties agree that Company shall be responsible for payment of the forum costs of any mediation hereunder,
including the mediator’s fee. The prevailing party in any dispute shall be entitled to an award of costs and fees.


 


20.           Counterparts. 
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature
appears thereon, and all of which together shall constitute one and the same instrument.  This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as
the signatories (the “Signature Date”).  Electronic means of signature such as Docusign may be used, and photographic
copies of such signed counterparts may be used in lieu of the originals for any purpose.


 


21.           Section 409A.


 


		a.	Notwithstanding
                                            anything contained in this Agreement to the contrary, the parties intend that this Agreement
                                            shall comply with Section 409A of the Internal Revenue Code of 1986, as amended (the
                                            “Code”) and this Agreement shall be interpreted in a manner consistent
                                            with such intent. If any provision of this Agreement (or of any award of compensation due
                                            to you under this Agreement) would cause Executive to incur any additional tax or interest
                                            under Section 409A of the Code or any regulations or Treasury guidance promulgated thereunder,
                                            the Company shall modify this Agreement to make it compliant with Section 409A and maintain
                                            the value of the payments and benefits under this Agreement.



 


		b.	If
                                            Executive is a “specified employee” within the meaning of Treasury Regulation
                                            Section 1.409A-1(i) as of the date of Executive’s Separation from Service,
                                            Executive shall not be entitled to any payment or benefit pursuant to this Agreement until
                                            the earlier of (i) the date which is six (6) months after his Separation from Service
                                            for any reason other than death, or (ii) the date of Executive’s death. The provisions
                                            of this Section 19.2 shall only apply if, and to the extent, required to avoid the imputation
                                            of any tax, penalty or interest pursuant to Code Section 409A. Any amounts otherwise
                                            payable to Executive upon or in the six (6) month period following Executive’s
                                            Separation from Service that are not so paid by reason of this Section 19.2 (a
                                            “Delayed Payment”) shall be paid (without interest) as soon as practicable
                                            (and in all events within thirty (30) days) after the date that is six (6) months after
                                            Executive’s Separation from Service (or, if earlier, as soon as practicable, and in
                                            all events within thirty (30) days, after the date of Executive’s death).



 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB






 






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		c.	For
                                            purposes of Section 409A, Executive’s right to receive any installment payments
                                            pursuant to this Agreement shall be treated as a right to receive a series of separate and
                                            distinct payments. For purposes of any payments to be made or benefits to be provided under
                                            this Agreement to which Section 409A applies, the terms “separation” and
                                            “termination” and the Separation Date shall have the same meaning as “separation
                                            from service” under Section 409A.



 


		d.	To
                                            the extent that any benefits are taxable to Executive, any reimbursement payment due
                                            to Executive pursuant to such provision shall be paid to Executive on or before the last
                                            day of Executive’s taxable year following the taxable year in which the related expense
                                            was incurred.  The benefits pursuant to such sections are not subject to liquidation
                                            or exchange for another benefit and the amount of such benefits that Executive receives in
                                            one taxable year shall not affect the amount of such benefits that Executive receives in
                                            any other taxable year.



 


22.           Legal
Counsel; Mutual Drafting.  Each party recognizes that this is a legally binding contract and acknowledges and agrees that
they have had the opportunity to consult with legal counsel of their choice.  Each party has cooperated in the drafting, negotiation
and preparation of this Agreement.  Hence, in any construction to be made of this Agreement, the same shall not be construed against
either party on the basis of that party being the drafter of such language.  Executive agrees and acknowledges that he has read
and understands this Agreement, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into
this Agreement and has had ample opportunity to do so.


 


[SIGNATURE PAGE FOLLOWS]


 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB












 






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IN
WITNESS WHEREOF, Company and Executive have executed this Agreement as of the Signature Date.


 


	/s/ Thomas D. Brisbin	10/20/2021	 
	Willdan Group, Inc.	Date	 
	By: Thomas D. Brisbin	 	 




 


	/s/ Adam Procell	10/19/2021	 
	Adam Procell	Date	 




 


	Executive Initials:	/s/ AP
	 	 
	Willdan Initials:	 /s/ TDB














 






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