Exhibit 10(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 4th day of May, 1999 by and between EMCOR GROUP,
INC. (the "Company") and XXXXX X. XXXXXXXX ("Executive").
The Company and the Executive are parties to an employment agreement made as of
January 1, 1998 and desire to amend the employment agreement in certain
respects.
For the sake of convenience and clarity the employment agreement shall be
restated in its entirety to read as follows:
"In order to induce Executive to serve as Chief Executive Officer of the Company
and Chairman of the Board of Directors of the Company (the "Board"), the Company
desires to provide Executive with compensation and other benefits under the
conditions set forth in this Agreement.
Executive is willing to accept such continuation of employment and to perform
services for the Company and its subsidiaries, on the terms and conditions
hereinafter set forth.
It is therefore hereby agreed by and between the parties as follows:
1. Employment.
1.1 Subject to the terms and conditions of this Agreement, the Company
agrees to employ Executive during the Period of Employment (as
hereinafter defined) as the Chief Executive Officer of the Company. In
his capacity as the Chief Executive Officer of the Company, Executive
shall have the customary powers, responsibilities and authorities of
chief executive officers of similar corporations of the size, type and
nature of the Company as it may exist from time to time, including,
but not limited to, authority over all personnel decisions and
business policies and practices, subject to the direction of the
Board.
1.2 The Company shall, during the Period of Employment (as hereinafter
defined), make its best efforts to ensure the retention of Executive
as Chairman of the Board.
1.3 Subject to the terms and conditions hereof, Executive hereby agrees to
be employed as Chief Executive Officer of the Company and shall devote
his full working time and efforts, to the best of his ability,
experience and talent, to the performance of the services, duties and
responsibilities in connection therewith and agrees to serve, if
elected as Chairman of the Board of the Company. Except upon the prior
written consent of the Board, Executive will not during the Period of
Employment (i) accept any other employment or (ii) engage, directly or
indirectly, in any other business activity (whether or not pursued for
pecuniary advantage), whether or not it may be competitive with, or
whether or not it might place him in a competing position to that of,
the Company or any subsidiary thereof. Nothing in this Agreement shall
preclude the Executive from (i) engaging, consistent with his duties
and responsibilities hereunder, in charitable community affairs, (ii)
managing his personal investments, (iii) continuing to serve on the
boards of directors on which he presently serves (to the extent such
service is not precluded by federal or state law or by conflict of
interest by reason of his position with the Company), or (iv) serving,
subject to approval of the Board, as a member of boards of directors
of other companies, provided, that such activities do not interfere
with the performance of Executive's duties hereunder. Notwithstanding
the foregoing, it is expressly acknowledged that Executive's existing
ownership in, and service as a director and/or officer of, ComNet
Communications, Inc. have been disclosed to the Company and that the
continuing ownership thereof and any reasonable actions associated
therewith, including, without limitation, continuing as a director
and/or officer thereof shall be permitted under the terms of this
Agreement and shall in no event constitute a breach hereof.
2. Period of Employment. Executive's period of employment hereunder commenced
on January 1, 1998 (the "Commencement Date") and shall continue through the
earlier of December 31, 2000 or the date of termination hereunder (the
"Period of Employment"); provided, however, that the Period of Employment
shall automatically be extended for successive one-year periods unless the
Company or Executive, at least six months prior to the end of such period,
provides written notice to the other party of intent not to extend the
Period of Employment. Notwithstanding anything in this Agreement to the
contrary, in the event of a Change of Control (as defined in Section
6.1(e)) the Period of Employment shall be for a period of three years
commencing as of the date of such Change of Control.
3. Compensation.
3.1 Salary. The Company shall pay Executive a base salary ("Base Salary")
at the rate of $725,000 per annum for the Period of Employment. Base
Salary shall be payable in accordance with the ordinary payroll
practices of the Company. Executive's rate of Base Salary shall be
increased on the first day of each calendar year occurring during the
Period of Employment, beginning with January 1, 2000, by the
percentage increase for the prior year in the consumer price index for
the area in which the principal office of the Company is located, as
determined by the U.S. Department of Commerce, or the amount specified
by the Board, whichever is greater.
3.2 Bonus. In addition to his Base Salary, Executive shall be entitled,
while he remains employed hereunder, in respect of each calendar year,
to an annual bonus (the "Bonus") payable in cash and at such times as
bonuses are customarily paid to senior executives of the Company. For
each calendar year during the Period of Employment, the Compensation
Committee of the Board (the "Committee") shall establish, after
consultation with Executive, a formula which shall determine the
amount of Executive's Bonus for the calendar year; provided that
Executive's target bonus shall be no less than $600,000 for each such
year.
3.3 Supplemental Benefit Credits. Executive shall be fully vested in all
employee benefit plans of the Company with respect to which the amount
of any benefits payable thereunder is determined in whole or in part
by years of service with the Company.
3.4 Stock Options.
(a) During each calendar year in the Period of Employment, the
Company shall recommend to the Committee that Executive shall
receive as of the first business day of each calendar year an
option ("Option") to purchase not less than 25,000 shares of
common stock of the Company ("Shares") at fair market value
pursuant to the Company's then applicable stock option plan. Each
such Option shall be exercisable with respect to the Shares
subject thereto on the first anniversary of the date of grant.
(b) In addition, Executive was granted on November 21, 1997 an option
to purchase 200,000 shares at fair market value. This option
shall have a ten-year term and shall vest in full on November 21,
2006 provided that with respect to successive groups of 50,000
shares, the option shall, if earlier, vest when the fair market
value of a share first equals or exceeds $25, $30, $35, and $40,
respectively.
(c) In the event of Executive's termination of employment under
Section 6.1, each Option shall become immediately exercisable in
full and shall remain exercisable for the balance of its ten-year
term.
4. Employee Benefits.
4.1 Employee Benefit Plans and Programs. The Company shall provide
Executive during the Period of Employment with coverage under any
employee benefit programs, plans and practices (commensurate with his
position in the Company) in accordance with the terms thereof, which
the Company currently makes available generally to its senior
executive officers, or which the Company, with Board approval, elects
to make available generally to its senior executive officers
hereafter, including, but not limited to
(a) retirement, pension and profit-sharing; and
(b) medical, dental, hospitalization, life insurance, short and
long-term disability, accidental death and dismemberment and
travel accident coverage; provided that Executive shall pay such
portion of the premiums therefor as is customarily paid by senior
executives of the Company.
4.2 Vacation, Fringe and other Benefits. Executive shall be entitled to
the number of vacation days customarily accorded senior executives of
the Company. In addition, during the Period of Employment, the Company
shall pay Executive $700 per month for leasing (plus maintenance and
insurance) of an automobile. The Company shall also reimburse
Executive for
(a) all initiation fees and monthly dues for membership in a club
suitable for entertaining clients of the Company and
(b) all legal expenses incurred by Executive in connection with the
negotiation and drafting of this Agreement. The Company shall
bear the cost of any increased tax liability of Executive caused
by the provisions of this Section 4.2.
5. Directors and Officers Liability. The Company shall keep in effect during
the Period of Employment, a policy of directors' and officers' liability
insurance for officers and directors of the Company to the extent
reasonably available, at such reasonable levels of coverage as are agreed
to by Executive and the Board from time to time.
6. Termination of Employment.
6.1 Termination Not For Cause or Resignation For Good Reason.
(a) The Company may terminate Executive's employment at any time, and
Executive may terminate his employment at any time. If
Executive's employment is terminated by the Company other than
for Cause (as hereinafter defined), or Executive terminates his
employment for Good Reason (as hereinafter defined), Executive
shall be entitled to receive a lump sum cash payment (but not in
substitution for compensation already earned) in an amount equal
to the sum of:
(i) the greater of (A) Executive's Base Salary at the highest
annual rate in effect during the Period of Employment for
the period from the date of termination through the
Expiration Date or (B) two times Executive's Base Salary at
its then current annual rate.
(ii) the greater of (A) Executive's target bonus pursuant to
Section 3.2 times the number of full or partial calendar
years remaining from the date of termination through the
Expiration Date or (B) two times Executive's target Bonus.
(iii)an amount equal to Executive's Bonus, for any calendar year
ending before such termination occurs, which would have been
payable had Executive remained in employment until the date
such Bonus would otherwise have been paid;
(iv) an amount equal to Executive's target Bonus for the calendar
year in which the termination of employment occurs,
multiplied by a fraction, the numerator of which is the
number of days in such calendar year that Executive was an
employee of the Company, and the denominator of which is
365; and
(v) in the event of a termination of Executive's employment by
the Company other than for Cause or by the Executive for
Good Reason following a Change of Control, the factor of two
in Clause (B) of subsection 6.1(a)(i) and (ii) shall be
increased to three.
(b) In addition to the amounts described in subsection 6.1(a),
Executive shall be entitled to receive:
(i) until the earlier of the Expiration Date (as that term is
hereafter defined) or 18 months from the date of
termination, Executive (and, to the extent applicable,
Executive's dependents) shall continue to be covered, at the
Company's expense, under the Company's medical, dental and
hospitalization coverage plans, and until the earlier of the
Expiration Date or 6 months from the date of termination,
Executive shall continue to be covered, at the Company's
expense, under the Company's group life, short and long-term
disability, accidental death and dismemberment and travel
accident coverage plans described in Section 4.1 hereof or
the Company will provide for equivalent coverage (the term
"Expiration Date" shall mean the later of (i) December 31,
2000, (ii) the third anniversary of a Change of Control of
the Company or (iii) the date that a succeeding one-year
Period of Employment (as provided for under Section 2
hereof) terminates); and
(ii) all payments to which Executive has vested rights as of the
Expiration Date under employee benefit, disability,
insurance and similar plans which provide for payments
beyond the Period of Employment.
(c) For purposes of this Agreement, "Good Reason" shall mean any of the
following (without Executive's express prior written consent):
(i) The assignment to Executive by the Company of duties
inconsistent with Executive's positions, duties,
responsibilities, titles or office as set forth in Section 1
hereof, or any reduction by the Company of his duties or
responsibilities or any removal of Executive from the
position of Chairman and Chief Executive Officer or any
failure to elect or re-elect Executive as Chairman of the
Board, except in connection with the termination of
Executive's employment (A) upon the termination of the
Period of Employment on the Expiration Date, (B) for Cause,
(C) as a result of Executive's Permanent Disability (as
hereinafter defined) or death or (D) by Executive other than
for Good Reason;
(ii) A reduction by the Company in Executive's Base Salary as in
effect on the date hereof or as the same may be increased
from time to time during the Period of Employment;
(iii)The failure by the Company to obtain the specific
assumption of this Agreement by any successor or assign of
the Company or any person acquiring substantially all of the
Company's assets;
(iv) Failure by the Company to perform in any material respect
its obligations under this Agreement, where such failure
shall not have been remedied within 30 days after Executive
shall have notified the Company in writing thereof;
(v) Any material reduction in Executive's compensation or
benefits following a Change of Control or Executive's
principal business location is changed to a location more
than 30 miles from Executive's principal business location
(other than a relocation to the Borough of Manhattan, New
York, New York) immediately prior to a Change of Control;
(vi) The Company shall cease to keep in effect the policy of
directors' and officers' liability insurance for Executive
described in Section 5; or
(d)
(i) Anything in this Agreement to the contrary notwithstanding,
if it is determined (as hereafter provided) that any payment
or distribution by the Company to or for the benefit of the
Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement,
policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any
restriction on or the vesting or exercisability of any of
the foregoing (a "Payment") , would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code") (or any successor provision
thereto) by reason of being "contingent on a change in
ownership or control" of the Company, within the meaning of
Section 28OG of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local
law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such
interest and penalties, are hereafter collectively referred
to as the "Excise Tax") , then the Executive shall be
entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by
the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any
Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.
(ii) Subject to the provisions of Section 6(d)(i) hereof, all
determinations required to be made under this Section 6(d),
including whether an Excise Tax is payable by the Executive
and the amount of such Excise Tax and whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment,
shall be made by the nationally recognized firm of certified
public accountants (the "Accounting Firm") used by the
Company prior to the Change of Control (or, if such
Accounting Firm declines to serve, the Accounting Firm shall
be a nationally recognized firm of certified public
accountants selected by the Executive). The Accounting Firm
shall be directed by the Company or the Executive to submit
its determination and detailed supporting calculations to
both the Company and the Executive within 15 calendar days
after the date the Executive's employment is terminated by
the Executive for Good Reason or by the Company other than
for Cause (the "Termination Date"), if applicable, and any
other such time or times as may be requested by the Company
or the Executive. If the Accounting Firm determines that any
Excise Tax is payable by the Executive, the Company shall
pay the required Gross-Up Payment to the Executive within
five business days after receipt of such determination and
calculations. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall, at the
same time as it makes such determination, furnish the
Executive with an opinion that he has substantial authority
not to report any Excise Tax on his federal, state, local
income or other tax return. Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment
shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999
of the Code (or any successor provision thereto) and the
possibility of similar uncertainty regarding applicable
state or local tax law at the time of any determination by
the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by the Company should
have been made (an "Underpayment"), consistent with the
calculations required to be made hereunder. In the event
that the Company exhausts or fails to pursue its remedies
pursuant to Section 6(d)(vi) hereof and the Executive
thereafter is required to make a payment of any Excise Tax,
the Executive shall direct the Accounting Firm to determine
the amount of the Underpayment that has occurred and to
submit its determination and detailed supporting
calculations to both the Company and the Executive as
promptly as possible. Any such Underpayment shall be
promptly paid by the Company to, or for the benefit of, the
Executive within five business days after receipt of such
determination and calculations. If payments required
pursuant to this Section 6 (d)(ii) to be made by the Company
to the Executive are not made within such five-day period,
the Company shall pay the Executive interest thereon at the
rate of 10% per annum.
(iii)The Company and the Executive shall each provide the
Accounting Firm access to and copies of any books, records
and documents in the possession of the Company or the
Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the
determination contemplated by Section 6(d)(ii) hereof
.
(iv) The federal, state and local income or other tax returns
filed by the Executive and the Company (or any filing made
by a consolidated tax group which includes the Company)
shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the
Excise Tax payable by the Executive. The Executive shall
make proper payment of the amount of any Excise Tax, and at
the request of the Company, provide to the Company true and
correct copies (with any amendments) of his federal income
tax return as filed with the Internal Revenue Service and
corresponding state and local tax returns, if relevant, as
filed with the applicable taxing authority, and such other
documents reasonably requested by the Company, evidencing
such payment. If prior to the filing of the Executive's
federal income tax return, or corresponding state or local
tax return, if relevant, the Accounting Firm determines that
the amount of the Gross-Up Payment should be reduced, the
Executive shall within five business days pay to the Company
the amount of such reduction.
(v) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and
calculations contemplated by Sections 6(d)(ii) and (d)(iv)
hereof shall be borne by the Company. If such fees and
expenses are initially advanced by the Executive, the
Company shall reimburse the Executive the full amount of
such fees and expenses within five business days after
receipt from the Executive of a statement therefor and
reasonable evidence of his payment thereof. If such
reimbursement is not made by the Company to the Executive
within such five-day period, the Company shall pay the
Executive interest thereon at the rate of 10% per annum.
(vi) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of a Gross-Up
Payment. Such notification shall be given as promptly as
practicable but no later than 10 business days after the
Executive actually receives notice of such claim and the
Executive shall further apprise the Company of the nature of
such claim and the date on which such claim is requested to
be paid (in each case, to the extent known by the
Executive). The Executive shall not pay such claim prior to
the earlier of (a) the expiration of the 30-calendar-day
period following the date on which he gives such notice to
the Company and (b) the date that any payment of amount with
respect to such claim is due. If the Company notifies the
Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(A) provide the Company with any written records or
documents in his possession relating to such claim
reasonably requested by the Company;
(B) take such action in connection with contesting such
claim as the Company shall reasonably request in
writing from time to time, including without limitation
accepting legal representation with respect to such
claim by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(C) cooperate with the Company in good faith in order
effectively to contest such claim; and
(D) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the
Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in
connection with such contest and shall indemnify and
hold harmless the Executive, on an after-tax basis, for
and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as
a result of such representation and payment of costs
and expenses. Without limiting the foregoing provisions
of this Section 6 (d)(vi), the Company shall control
all proceedings taken in connection with the contest of
any claim contemplated by this Section 6 (d)(vi) and,
at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of
such claim (provided however, that the Executive may
participate therein at his cost and expense) and may,
at its option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any
administrative tribunal, or a court of initial
jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if
the Company directs the Executive to pay the tax
claimed and xxx for a refund, the Company shall advance
the amount of such payment to the Executive on an
interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest and
penalties with respect thereto, imposed with respect to
such advance; and provided further, however, that any
extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive
with respect to which the contested amount is claimed
to be due is limited solely to such contested amount.
Furthermore, the Company's control of any such
contested claim shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder
and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing
authority.
(vii)If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 6 (d)(vi) hereof, the
Executive receives any refund with respect to such claim,
the Executive shall (subject to the Company's complying with
the requirements of Section 6 (d)(vi) hereof) promptly pay
to the Company the amount of such refund (together with any
interest paid or credited thereon after any taxes applicable
thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 6 (d)(vi)
hereof, a determination is made that the Executive is not
entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its
intent to contest such denial or refund prior to the
expiration of 30 calendar days after such determination,
then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up
Payment required to be made pursuant to this Section 6 (d).
(e) For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred when:
(i) any person or persons acting in concert (excluding Company
benefit plans) becomes the beneficial owner of securities of
the Company having at least 25% of the voting power of the
Company's then outstanding securities; or
(ii) the shareholders of the Company shall approve any merger or
other business combination of the Company, sale or lease of
the Company's assets or combination of the foregoing
transactions (the "Transactions") other than a Transaction
immediately following which the shareholders of the Company
and any trustee or fiduciary of any Company employee benefit
plan immediately prior to the Transaction own at least 65%
of the voting power, directly or indirectly, of
(A) the surviving corporation in any such merger or other
business combination;
(B) the purchaser or lessee of the Company's assets; or
(C) both the surviving corporation and the purchaser or
lessee in the event of any combination of Transactions;
or
(iii)within any 24-month period, the persons who were directors
immediately before the beginning of such period (the
"Incumbent Directors") shall cease (for any reason other
than death) to constitute at least a majority of the Board
or the board of directors of a successor to the Company. For
this purpose, any director who was not a director at the
beginning of such period shall be deemed to be an Incumbent
Director if such director was elected to the Board by, or on
the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent
Directors (so long as such director was not nominated by a
person who has expressed an intent to effect a Change of
Control or engage in a proxy or other control contest).
(f) Except as otherwise specifically provided herein, all cash
payments under this Section 6.1 shall be made by the Company
within 30 calendar days following the event giving rise to such
payments. If any such payment shall not be made within such
30-day period (or any other specifically provided time period),
the Company shall pay interest on the unpaid amount at the rate
of 10% per annum.
6.2 Permanent Disability. If as a result of the Executive's incapacity due
to physical or mental illness, the Executive shall have been absent
from his duties with the Company on a full-time basis for six
consecutive months (a "Permanent Disability") during his Period of
Employment, the Company or Executive may terminate his employment on
written notice thereof, the Period of Employment shall terminate on
the giving of such notice, and the compensation to which Executive is
entitled pursuant to Section 3.1 shall be paid through the last day of
the month in which the notice is given. In addition, Executive shall
be entitled to receive:
(a) all unpaid amounts, as of the date of such termination, in
respect of any Bonus for any calendar year ending before the
calendar year in which such termination occurs, which would have
been payable had Executive remained in employment until the date
such Bonus would otherwise have been paid, plus Executive's
target Bonus for the calendar year in which his employment
terminates, multiplied by a fraction, the numerator of which is
the number of days in such calendar year the Executive was an
employee of the Company, and the denominator of which is 365;
(b) until the earlier of the Expiration Date or 24 months from the
date of termination for Permanent Disability, Executive (and, to
the extent applicable, Executive's dependents) shall continue to
be covered, at the Company's expense, under the Company's
medical, dental, hospitalization, group life, short and long-term
disability, accidental death and dismemberment and travel
accident coverage plans described in Section 4.1 or the Company
will provide for equivalent coverage; provided that if Executive
is provided with comparable coverage by a successor employer any
such coverage by the Company shall cease; and
(c) all amounts payable under the Company's disability plans.
6.3 Death. In the event of Executive's death while employed hereunder, the
Period of Employment shall thereupon automatically terminate and the
Executive's estate or designated beneficiaries shall receive (i)
payments of Base Salary for a period of three months after the date of
death; (ii) all unpaid amounts, as of the date of such termination, in
respect of any Bonus for any calendar year ending before the calendar
year in which such termination occurs, which would have been payable
had Executive remained in employment until the date such Bonus would
otherwise have been paid, plus Executive's target Bonus for the
calendar year in which his employment terminates, multiplied by a
fraction, the numerator of which is the number of days in such
calendar year the Executive was an employee of the Company, and the
denominator of which is 365; and (iii) any death benefits provided
under the employee benefit programs, in accordance with their terms.
6.4 Voluntary Resignation; Discharge for Cause. If Executive resigns
voluntarily, other than for Good Reason or Permanent Disability, or
the Company terminates the employment of Executive at any time for
Cause, the Company's obligations under this Agreement to make any
further payments to Executive shall thereupon, to the extent permitted
by law, cease and terminate except with respect to all unpaid amounts,
as of the date of such termination, in respect of any Bonus for any
calendar year ending before such termination occurs, which would have
been payable had Executive remained in employment until the date such
Bonus would otherwise have been paid. In addition, Executive shall
remain entitled to all vested amounts and benefits under the Company's
employee benefit programs, plans and practices, including, without
limitation, the supplemental benefit credits provided for under
Section 3.3. hereof. The term "Cause" shall be limited to (a) action
by Executive involving willful malfeasance in connection with his
employment which results in material harm to the Company, (b) material
and continuing breach by Executive of the terms of this Agreement
which breach is not cured within 60 days after Executive receives
written notice from the Company of any such breach or (c) Executive
being convicted of a felony. Termination of Executive for Cause
pursuant to this Section 6.4 shall be communicated by a Notice of
Termination given within six months after the Board both (i) had
knowledge of conduct or an event allegedly constituting Cause and (ii)
had reason to believe that such conduct or event could be grounds for
Cause. For purposes of this Agreement a "Notice of Termination" shall
mean delivery to Executive of a copy of a resolution duly adopted by
the Board at a meeting of the Board called and held for that purpose
(after not less than 10 days notice to Executive ("Preliminary
Notice") and reasonable opportunity for Executive, together with the
Executive's counsel, to be heard before the Board prior to such vote),
finding that in the good faith opinion of the Board, Executive was
guilty of conduct set forth in the third sentence of this Section 6.4
and specifying the particulars thereof in detail. The Board shall no
later than 30 days after the receipt of the Preliminary Notice by
Executive communicate its findings to Executive. A failure by the
Board to make its finding of Cause or to communicate its conclusions
within such 30-day period shall be deemed to be a finding that
Executive was not guilty of the conduct described in the third
sentence of this Section 6.4.
6.5 Termination On or After Expiration Date. In the event the Period of
Employment shall not be extended and Executive's employment shall be
terminated by the Company on or after the Expiration Date or Executive
shall terminate his employment on or after the Expiration Date, the
Executive shall be paid
(a) his Base Salary through the last day of the month in which the
termination of employment occurs,
(b) all unpaid amounts in respect of any Bonus for any calendar year
ending before such termination date occurs, which Bonus would
have been payable had Executive remained in employment until the
date such Bonus would otherwise have been paid, and
(c) Executive's target Bonus for the calendar year in which his
employment terminates, multiplied by a fraction, the numerator of
which is the number of days in such calendar year the Executive
was an employee of the Company, and the denominator of which is
365. In addition, Executive shall remain entitled to all vested
amounts, benefits, and rights under the Company's employee
benefit programs, plans and practices, all rights to which he is
entitled under Company severance plans, practices and/or policies
and all other benefits to which he is entitled by law or
contract.
6.6 Termination Obligations.
(a) Executive hereby acknowledges and agrees that all personal
property, including, without limitation, all books, manuals,
records, reports, notes, contracts, lists, and other documents,
and equipment furnished to or prepared by Executive in the course
of or incident to his employment, belong to the Company and shall
be promptly returned to the Company upon termination of the
Period of Employment.
(b) Upon termination of the Period of Employment, the Executive shall
be deemed to have resigned from all offices and directorships
then held with the Company or any subsidiary or affiliate
thereof.
7. Confidential Information. During and after the Period of Employment,
Executive shall not disclose to any person (other than an employee or agent
of the Company or any affiliate of the Company entitled to receive the
same) any confidential information relating to the business of the Company
and obtained by him while providing services to the Company, without the
consent of the Board, or until such information ceases to be confidential.
8. Non-Competition. In the event Executive's employment is terminated by the
Company for Cause or Executive terminates his employment with the Company
without Good Reason, Executive shall not, for a period ending on the
earlier of (i) 18 months from the date of such termination or (ii) the
Expiration Date, accept any other employment or engage, directly or
indirectly, in any other business activity which is competitive with that
of the Company or any subsidiary thereof; provided, however, that
Executive's ownership interest in, and service as a director and/or officer
of, ComNet Communications, Inc. shall not be deemed to be competitive with
the Company or any subsidiary thereof.
9. Expenses. Executive is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement, including
expenses for travel and similar items related to such duties and
responsibilities. The Company will reimburse Executive for all such
expenses upon presentation by Executive from time to time of an itemized
account of such expenditures.
10. No Obligation to Mitigate Damages. Executive shall not be required to
mitigate damages or the amount of any payment provided for under this
Agreement by seeking (and no payment otherwise required hereunder shall be
reduced on account of) other employment or otherwise, nor will any payments
hereunder be subject to offset in respect of any claims which the Company
may have against Executive.
11. Notices. All notices or communications hereunder shall be in writing,
addressed as follows:
to Executive:
Xxxxx X. XxxXxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
to Company:
Xxxxxxx X. Xxxxxxxx, Esq.
Executive Vice President and General Counsel
EMCOR Group, Inc.
000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxx, Xx., Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Any such notice or communication shall be delivered by hand or sent
certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
a notice duly delivered as described above), and the actual date of
delivery or mailing shall determine the time at which notice was given.
12. Agreement to Perform Necessary Acts. Each party agrees to perform any
further acts and to execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
13. Separability; Legal Actions; Legal Fees. If any provision of this Agreement
shall be declared to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the remaining provisions
hereof, which shall remain in full force and effect. Any controversy or
claim arising out of or relating to this Agreement or the breach of this
Agreement that cannot be resolved by Executive and the Company, including
any dispute as to the calculation of Executive's benefits or any payments
hereunder, shall be submitted to arbitration in New York, New York in
accordance with the laws of the State of New York and the procedures of the
American Arbitration Association, except that if Executive institutes an
action relating to this Agreement, Executive may, at Executive's option,
bring that action in any court of competent jurisdiction. Judgment may be
entered on an arbitrator(s)' award in any court having jurisdiction.
In addition to all other amounts payable to the Executive under this
Agreement, the Company shall pay or reimburse the Executive for legal fees
(including without limitation, any and all court costs and attorneys' fees
and expenses) incurred by the Executive in connection with or as a result
of any claim, action or proceeding brought by the Company or the Executive
with respect to or arising out of this Agreement or any provision hereof,
unless, in the case of an action brought by the Executive, it is determined
by an arbitrator or by a court of competent jurisdiction that such action
was frivolous and was not brought in good faith. Such legal fees shall be
paid or reimbursed by the Company to the Executive from time to time within
five business days following receipt by the Company of copies of bills for
such fees and if the Company fails to make such payment within such five
day period, the Company shall pay the Executive interest thereon at the
rate of 10% per annum. All other expenses relating to any arbitration or
court proceedings shall be paid by the Company.
14. Assignment. This Agreement shall be binding upon and inure to the benefit
of the heirs and representatives of Executive and the assigns and
successors of the Company, but neither this Agreement nor any rights
hereunder shall be assignable or otherwise subject to hypothecation by
Executive (except by will or by operation of the laws of intestate
succession) or by the Company (any such purported assignment by either
shall be null and void), except that the Company may assign this Agreement
to any successor (whether by merger, purchase or otherwise) to all or
substantially all of the stock, assets or business of the Company.
15. Amendment; Waiver. The Agreement may be amended at any time, but only by
mutual written agreement of the parties hereto. Any party may waive
compliance by the other party with any provision hereof, but only by an
instrument in writing executed by the party granting such waiver.
16. Entire Agreement. Except as otherwise provided in a Continuity Agreement
dated as of June 22, 1998 between the Company and the Executive, as amended
by agreement dated May 4, 1999, and as may be amended from time to time
hereafter, the terms of this Agreement (i) are intended by the parties to
be the final expression of their agreement with respect to the employment
of Executive by the Company, (ii) may not be contradicted by evidence of
any prior or contemporaneous agreement and (iii) shall constitute the
complete and exclusive statement of its terms, and no extrinsic evidence
whatsoever may be introduced in any judicial, administrative or other legal
proceeding involving this Agreement.
17. Death or Incompetence. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his estate or other legal
representative.
18. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section are in addition to the survivorship provisions
of any other section of this Agreement.
19. Governing Law. This Agreement shall be construed, interpreted, and governed
in accordance with the laws of the State of New York without reference to
rules relating to conflicts of law.
20. Withholdings. The Company shall be entitled to withhold from payment any
amount of withholding required by law.
21. Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original."
IN WITNESS WHEREOF, the parties hereto have executed this amended and restated
employment agreement as of the date first above written. EMCOR GROUP, INC.
By:
EXECUTIVE
___________________________
Xxxxx X. XxxXxxxx
