Exhibit 10-Z
MYR Group, Inc.
PERFORMANCE UNITS AGREEMENT UNDER
THE 1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC.
AND SUBSIDIARIES
(2000 AGREEMENT)
AGREEMENT made as of ---------------------------, by and between GPU, Inc. (the
"Corporation") and ------------------------- (the "Recipient"):
WHEREAS, the Corporation maintains the 1990 Stock Plan for Employees of GPU,
Inc. and Subsidiaries (the "Plan") under which the Personnel, Compensation and
Nominating Committee of the Corporation's Board of Directors (the "Committee")
may, among other things, award units ("Performance Units") representing rights
to acquire shares of the Corporation's Common Stock, $2.50 par value ("Common
Stock") to such employees of the Corporation and its subsidiaries as the
Committee may determine, subject to such terms, conditions or restrictions as it
may deem appropriate;
WHEREAS, pursuant to the Plan, the Committee has granted to the Recipient an
award of Performance Units subject to the terms and conditions set forth in this
Agreement; and
WHEREAS, the Plan requires that an award of Performance Units be evidenced by a
written agreement between the Corporation and the Recipient that contains such
restrictions, terms and conditions as the Committee may require;
NOW, THEREFORE, the parties hereto agree as follows:
1. AWARD OF PERFORMANCE UNITS; NATURE OF RIGHTS
(a) In accordance with the provisions of the Plan, the Committee
awarded to the Recipient on ----------------- (the "Award Date")
---------- Performance Units. Each unit so awarded, and each
additional Performance Unit credited to the Recipient pursuant to
Section 2 (the Performance Units so awarded and the additional
Performance Units so credited are hereinafter referred to
collectively as the Recipient's "Units"), shall entitle the
Recipient, upon the vesting of such units as provided in Section 3
hereof, to receive one share of Common Stock, or a cash payment in
lieu of such share, subject to the terms, conditions, and
restrictions set forth herein.
(b) Prior to the issuance, as provided in Section 4 or 5 hereof, of
shares of Common Stock with respect to the Recipient's Units, or
with respect to the Recipient's "Deferred Vested Units" as defined
in Section 5(a)(ii) hereof, the Recipient shall not be entitled to
any of the rights of a stockholder of the Corporation by reason of
such Units or Deferred Vested Units.
1
(c) Notwithstanding anything in this Agreement to the contrary, the
Recipient shall have the status of a mere unsecured creditor of the
Corporation with respect to the Recipient's right to receive any
payment hereunder; and this Agreement shall constitute a mere
promise by the Corporation to make payments in the future in
accordance with the terms hereof. It is the intention of the parties
hereto that the arrangements set forth in this Agreement be treated
as unfunded for tax purposes and, if it should be determined that
Title I of ERISA is applicable to such arrangements, for purposes of
Title I of ERISA.
2. ADDITIONAL PERFORMANCE UNITS
(a) As of each date prior to the Vesting Date (as defined in Section
3(a) below) on which a dividend is paid on the Common Stock
("Dividend Payment Date"), there shall be credited to the Recipient
hereunder a number of additional Performance Units determined by
multiplying (i) the aggregate number of Units standing to the
Recipient's credit immediately prior to such Dividend Payment Date,
by (ii) the quotient resulting from dividing (A) the per share
amount of the dividend so paid by (B) the price per share used for
the reinvestment of dividends paid on such Dividend Payment Date
under the provisions of the Corporation's Dividend Reinvestment and
Stock Purchase Plan.
(b) Any additional Performance Units credited to the Recipient
pursuant to this Section 2 shall be subject to the same terms,
conditions and restrictions as are applicable with respect to the
Recipient's initially awarded Performance Units.
3. ADJUSTMENT AND VESTING OF UNITS
(a) For purposes of this Agreement, the Recipient's "Vesting Date"
shall mean the earliest to occur of the following dates:
(i) the third anniversary of the Award Date;
(ii) the date as of which the Recipient's employment with
the Corporation or any subsidiary terminates as a result of
the Recipient's death; or
(iii) an "Acceleration Date," as defined in the Plan.
2
(b) Subject to the provisions of paragraph (c) below, as of the
Recipient's Vesting Date, the aggregate number of Units then
standing to the Recipient's credit shall be adjusted by multiplying
such aggregate number by the sum of (1) the MYR After-Tax Margin
Performance Percentage, as determined in accordance with
subparagraph (i) below, (2) the MYR Revenue Growth Rate Performance
Percentage, as determined in accordance with subparagraph (ii)
below, and (3) the MYR Return on Assets Performance Percentage, as
determined in accordance with subparagraph (iii) below:
(i) The MYR After-Tax Margin Performance Percentage shall
be 35% of the Percentage determined pursuant to the
following table
If the MYR After Tax-Margin
for the Performance Period is: The Percentage shall be:
------------------------------ ------------------------
4.1% or above 200%
At least 3.8% but less than 4.1% 175%
At least 3.5% but less than 3.8% 150%
At least 3.2% but less than 3.5% 125%
At least 3.0% but less than 3.2% 100%
At least 2.8% but less than 3.0% 75%
At least 2.4% but less than 2.8% 50%
Less than 2.4% 0%
For purposes of the foregoing, the MYR After-Tax Margin for the
Performance Period shall mean the percentage determined by dividing
(A) the average of the net income of MYR Group, Inc. ("MYR") for
each of the years in the period from January 1, 2000 through
December 31, 2002 (the "Performance Period"), by (B) the average of
MYR's gross revenues for each of the years in the Performance
Period.
(ii) The MYR Revenue Growth Rate Performance Percentage shall
be 30% of the Percentage determined pursuant to the following
table:
If the MYR Revenue Growth Rate
for the Performance Period is: The Percentage shall be:
------------------------------ ------------------------
27% or above 200%
At least 24$ but less than 27% 175%
At least 21% but less than 24% 150%
At least 18% but less than 21% 125%
At least 15% but less than 18% 100%
At least 12% but less than 15% 75%
At least 9% but less than 12% 50%
Less than 9% 0%
3
For purposes of the foregoing, the MYR Revenue Growth Rate for the
Performance Period shall mean the average of the compounded rate of
growth in MYR's gross revenues, over a base of $480 million, for
each of the years in the Performance Period.
(iii) The MYR Return on Assets Performance Percentage shall be
35% of the Percentage determined pursuant to the following
table:
If the MYR Return on Assets
for the Performance Period is: The Percentage shall be:
------------------------------ ------------------------
27% or above 200%
At least 15.9% but less than 17% 175%
At least 14.9% but less than 15.9% 150%
At least 13.8% but less than 14.9% 125%
At least 12.7% but less than 13.8% 100%
At least 11.4% but less than 12.7% 75%
At least 10.0% but less than 11.4% 50%
Less than 10.0% 0%
For purposes of the foregoing, the MYR Return on Assets for the
Performance Period shall mean the average of the percentages,
determined, for each year in the Performance Period, by dividing
MYR's net income for such year, by the average of MYR's total assets
as of the beginning and end of such year.
(iv) For purposes of this paragraph (b), the amount of MYR's
net income and revenues for any year, and the amount of its
total assets as of the beginning and end of any year, shall be
the amounts determined by MYR's Board of Directors, in its
discretion.
(c) If the Recipient's Vesting Date occurs by reason of the
Recipient's death prior to the first day of the calendar year which
includes the third anniversary of the Award Date, the Recipient's
Units shall not be adjusted in the manner described in paragraph (b)
above; and if the Recipient's Vesting Date occurs by reason of an
Acceleration Date occurring prior to such first day, the adjustment
with respect to the Recipient's Units required under paragraph (b)
above shall be made using as the applicable Performance Percentage
under each of subparagraphs (i), (ii) and (iii) of paragraph (b)
above either 100% or, if greater, the Performance Percentage that
would apply under the table set forth in such subparagraph if the
4
Performance Period had ended on December 31 of the calendar year
immediately preceding such Acceleration Date.
(d) If the Recipient's employment with the Corporation or any
subsidiary terminates prior to the third anniversary of the Award
Date as a result of the Recipient's death, "Eligible Retirement" as
defined in paragraph (f)(iii) below or "Total Disability" as defined
in the Plan, the number of Units standing to the Recipient's credit
as of the Recipient's Vesting Date (after taking into account any
adjustment required under paragraph (b)) shall be adjusted (or
further adjusted) by multiplying such number of Units by the
Recipient's Service Percentage. The Recipient's "Service Percentage"
shall mean the percentage determined by dividing by 36 the number of
months in the period beginning on the Award Date and ending on the
date of such termination of the Recipient's employment; and for this
purpose, any fraction of a month included in such period shall be
treated as a full month. This paragraph (d) shall not apply if the
Recipient's Vesting Date occurs by reason of the occurrence of an
Acceleration Date.
(e) As of the Recipient's Vesting Date, all Units then standing to
the Recipient's credit (after taking into account any adjustments
required under paragraphs (b), (c) and (d) above) shall become
vested. If the number of Units standing to the Recipient's credit
immediately prior to any adjustments made pursuant to paragraphs
(b), (c) and (d) above exceed the number of Units standing to the
Recipient's credit after giving effect to such adjustments, all of
the Recipient's rights with respect to such excess number of Units
shall be forfeited as of the Vesting Date. If the Recipient's
employment with the Corporation or any subsidiary should terminate
before the Recipient's Vesting Date for any reason other than as a
result of the Recipient's Eligible Retirement or Total Disability,
all of the Recipient's rights with respect to any Units credited to
the Recipient hereunder shall be forfeited as of the date of such
termination.
(f) For purposes of this Agreement, (i) the term "subsidiary" shall
have the same meaning as in paragraph 4(a) of the Plan; (ii) the
transfer of the Recipient's employment from one subsidiary to
another shall not be treated as a termination of the Recipient's
employment; and (iii) the term "Eligible
5
Retirement" shall mean the termination of the Recipient's employment
with the Corporation or any subsidiary for any reason other than
death or Total Disability after having attained age 55 and
completing at least 10 years of service with MYR or any other
subsidiary of the Corporation.
4. PAYMENT FOR VESTED UNITS
(a) Upon the Vesting Date, the Recipient shall become entitled to
receive payment with respect to the Units which have become vested
on such date (such Units are hereafter referred to as the
Recipient's "Vested Units"). Except as otherwise provided in Section
5, payment with respect to the Recipient's Vested Units shall be
made as soon as practicable after the Vesting Date, in the manner
hereinafter set forth in this Section 4.
(b) Except as otherwise provided in paragraph (c) below, payment
with respect to the Recipient's Vested Units shall be made by the
issuance to the Recipient of shares of Common Stock. Except as
otherwise provided in paragraph (d) (ii) below, one share of Common
Stock shall be issued for each of the Recipient's Vested Units. The
Recipient shall own any shares of Common Stock so issued free and
clear of any restrictions and shall be free to hold or dispose of
such shares at will, subject, however, to any restrictions that may
be imposed by law.
(c) The Committee, in its sole discretion, may determine that
payment with respect to any or all of the Recipient's Vested Units
shall be made in cash instead of in shares of Common Stock, and
payment with respect to any fractional part of a Vested Unit shall
be made in cash. Except as otherwise provided in paragraph (d) (i)
below, the amount of the cash payment to be made with respect to any
Vested Unit shall be equal to (and the amount of the cash payment to
be made with respect to any fractional part of a Vested Unit shall
be based upon) the per share closing price of one share of Common
Stock as reported on the New York Stock Exchange Composite Tape for
the Vesting Date, or if there are no sales of Common Stock on such
date, for the next preceding day on which there were sales of Common
Stock.
6
(d) Upon the occurrence of an Acceleration Date, the amount payable
with respect to the Recipient's Vested Units (including any Units
that became vested prior to such date but for which payment
hereunder has not been made as of such date) shall be determined as
follows:
(i) To the extent that the payment for any of the Recipient's
Vested Units is to be made in cash, the amount of cash to be
paid for such Vested Units shall be equal to the product of
(A) the number of such Vested Units, multiplied by (B) the
highest closing price per share of the Common Stock, as
reported on the New York Stock Exchange Composite Tape,
occurring during the 90-day period preceding and the 90-day
period following the Acceleration Date (the "Multiplication
Factor").
(ii) To the extent that payment for any of the Recipient's
Vested Units is to be made in shares of Common Stock, the
number of shares of Common Stock to be issued with respect to
such Vested Units shall be determined by dividing (A) the
product of (y) the number of such Vested Units multiplied by
(z) the Multiplication Factor, by (B) the per share closing
price of the Common Stock as reported on the New York Stock
Exchange Composite Tape for the day preceding the payment
date, or if there are no sales of Common Stock on such date,
for the next preceding day on which there were sales of Common
Stock.
(e) If the Recipient has died prior to the date on which any payment
is to be made hereunder with respect to the Recipient's Vested
Units, the payment otherwise required to be made to the Recipient
shall be made to the Recipient's beneficiary or estate, as the case
may be.
5. DEFERRAL OF PAYMENT FOR VESTED UNITS
(a) Subject to the provisions of paragraph (b) below, payment with
respect to part or all of the Recipient's Vested Units shall be
deferred, and shall be made at the time and in the manner
hereinafter set forth, if the Recipient so elects in accordance with
the following provisions:
(i) An election by the Recipient hereunder shall be made
in writing, on a form furnished to the Recipient for such
purpose by the Committee. The form shall be filed with the
Committee at least one year prior to the Vesting Date.
7
(ii) In the Recipient's election form, the Recipient shall
specify the number of Vested Units payment with respect to
which the Recipient wishes to defer (the number of Vested
Units payment with respect to which is deferred pursuant to
the Recipient's election hereunder, and the number of
additional units credited to the Recipient pursuant to
subparagraph (vi) below are hereinafter collectively referred
to as the Recipient's "Deferred Vested Units"); the date on
which payment with respect to the Recipient's Deferred Vested
Units shall be made or commence (the "Payment Commencement
Date") in accordance with subparagraph (iii) below; and the
method by which payment with respect to the Recipient's
Deferred Vested Units shall be made (the "Payment Method") in
accordance with subparagraph (iv) below.
(iii) The Recipient may select, as the Payment Commencement
Date, the first business day of any of the following: (A) the
third calendar year following the calendar year in which the
Vesting Date occurs, or any later calendar year; (B) the
earlier of (x) any calendar year which the Recipient is
permitted to select under clause (A), or (y) the calendar year
following the later of the Vesting Date or the date of the
termination of the Recipient's employment with the Corporation
or any subsidiary or the Recipient's Total Disability; or (C)
the calendar year following the later of the Vesting Date or
the date of the termination of the Recipient's employment with
the Corporation or any subsidiary or the Recipient's Total
Disability, or any later calendar year.
(iv) The Recipient may select, as the Payment Method, either
(A) a single lump sum payment, or (B) payment in annual
installments, over a period of at least five years, or such
greater number of years as the Recipient specifies in the
Recipient's election form. With each such annual installment,
payment shall be made with respect to a number of the
Recipient's Deferred Vested Units equal to the quotient
resulting from dividing (C) the total number of Deferred
Vested Units standing to the Recipient's credit hereunder on
8
applicable payment date, by (D) the number of installment
payments remaining to be made on such date. Immediately after
each annual installment payment has been made, the number of
Deferred Vested Units standing to the Recipient's credit
hereunder shall be reduced by the number of Deferred Vested
Units with respect to which such payment was made.
(v) Any election made hereunder by the Recipient shall
be irrevocable.
(vi) Until payment has been made with respect to all of the
Recipient's Deferred Vested Units (including those credited to
the Recipient under this subparagraph), there shall be
credited to the Recipient hereunder, as of each Dividend
Payment Date, a number of additional Deferred Vested Units
determined by multiplying (A) the number of Deferred Vested
Units (including any additional Deferred Vested Units
previously credited to the Recipient under this subparagraph)
standing to the Recipient's credit hereunder on the day
immediately preceding such Dividend Payment Date, by (B) the
quotient referred to in Section 2(a)(ii) hereof.
(vii) Payment with respect to the Recipient's Deferred Vested
Units shall be made in cash, or in shares of Common Stock, or
in any combination of cash or such shares, as the Committee
shall determine in its sole discretion. To the extent that
payment with respect to any of the Recipient's Deferred Vested
Units is to be made in shares of Common Stock, one share of
Common Stock shall be issued for each such Deferred Vested
Unit. The Recipient shall own any shares of Common Stock so
issued free and clear of any restrictions and shall be free to
hold or dispose of such shares at will, subject, however, to
any restrictions that may be imposed by law. The amount of the
cash payment to be made with respect to any Deferred Vested
Units shall be equal to (and with respect to any fractional
part of a Deferred Vested Unit, shall be based upon) the per
share closing price of one share of Common Stock as reported
on the New York Stock Exchange Composite Tape for the last
business day immediately preceding the date on which such cash
payment is to be made.
9
(viii) A deferral election otherwise permitted to be made
hereunder shall be subject to the following limitations:
(A) If the Recipient's Vesting Date should occur within
one year following the date on which the Recipient's
election form is filed with the Committee, or if the
Vesting Date occurs more than one year from such date
but occurs as a result of the occurrence of an
Acceleration Date, the Recipient's deferral election
shall not be given effect, and payment with respect to
the Recipient's Vested Units shall be made in accordance
with the applicable provisions of Section 4.
(B) No deferral election shall be effective hereunder if
at any time during the 12-month period ending on the
Vesting Date, the Recipient received a hardship
withdrawal under Section 7.2(e) of the GPU Companies
Employee Savings Plan for Nonbargaining Employees or
under the comparable provisions of any other plan
maintained by any of the GPU Companies that is qualified
under section 401(k) of the Code.
(C) No amount may be deferred with respect to the
Recipient's Vested Units pursuant to the Recipient's
deferral election hereunder to the extent that any tax
is required to be withheld with respect to such amount
pursuant to applicable federal, state or local law.
(ix) If the Recipient has died prior to the date on which any
payment is to be made hereunder with respect to the
Recipient's Deferred Vested Units, the payment otherwise
required to be made to the Recipient shall be made to the
Recipient's beneficiary or estate, as the case may be.
(x) Notwithstanding any other provision in this paragraph (a)
to the contrary, to the extent the Committee in its sole
discretion so determines, payment with respect to any part or
all of the Recipient's Deferred Vested Units may be made to
the Recipient or to the Recipient's beneficiary or estate, on
any date earlier than the date on which such payment is to be
made pursuant to the Recipient's election hereunder, in the
following
10
circumstances: (A) in the event of the Recipient's death prior
to the Payment Commencement Date specified in the Recipient's
election hereunder; (B) in the event of the Recipient's Total
Disability; or (C) in the event the Recipient requests such
early payment and the Committee, in its sole discretion,
determines that such early payment is necessary to help the
Recipient meet some severe financial need arising from
circumstances which were beyond the Recipient's control and
which were not foreseen by the Recipient at the time of the
Recipient's election hereunder.
(b) Notwithstanding any provision in paragraph (a) above to the
contrary or any other election made by the Recipient under paragraph
(a), the Recipient may make a special election under this paragraph
(b) regarding payment with respect to the Recipient's Deferred
Vested Units in the event a "Change in Control", as defined in the
Plan, should occur.
(i) The Recipient may elect under this subparagraph (i) to
have payment with respect to all of the Recipient's Deferred
Vested Units made in the form of a single lump sum payment
upon the occurrence of a Change in Control prior to the
Recipient's termination of employment. Such payment shall be
made as soon as practicable after the date on which such
Change in Control occurs.
(ii) The Recipient may elect under this subparagraph (ii) to
have payment with respect to all of the Recipient's Deferred
Vested Units made in the form of a single lump sum payment in
the event of the Recipient's termination of employment for any
reason within the two-year period following a Change in
Control. Such payment shall be made by no later than 30 days
after the date of the Participant's termination of employment.
(iii) Under this subparagraph (iii) the Recipient may elect,
in the event a Change in Control occurs after the
Participant's termination of employment but before all
payments with respect to the Recipient's Deferred Vested Units
have been made pursuant to the Participant's election under
11
Section 5(a), to have payment with respect to all of the
Deferred Vested Units that are still standing to the
Recipient's credit hereunder at the time of such Change in
Control made in the form of a single lump sum payment. Such
payment shall be made as soon as practicable after the date on
which such Change of Control occurs.
(iv) Payment with respect to the Recipient's Deferred Vested
Units pursuant to an election made by the Recipient under
subparagraph (i), (ii) or (iii) above shall be made in the
manner provided in Section 5(a)(vii); provided, however, that
if payment is to be made pursuant to the Recipient's election
under subparagraph (i) or (iii), the second and fourth
sentences of Section 5(a)(vii) shall not apply, and the amount
of cash payable and/or the number of shares of Common Stock to
be issued with respect to the Recipient's Deferred Vested
Units shall be determined in accordance with the provisions of
Section 4(d)(i) and (ii).
(v) An election under subparagraph (i) shall be effective only
if it is made at least one year prior to the Change in Control
referred to in subparagraph (i). An election under
subparagraph (ii) shall be effective only if it is made either
(A) at least twenty-four (24) months prior to the Recipient's
termination of employment, or (B) if such termination of
employment constitutes an "Involuntary Termination", as
defined in subparagraph (vi) below, at least one year prior to
the Change in Control referred to in subparagraph (ii). An
election under subparagraph (iii) shall be effective only if
it is made prior to the Recipient's termination of employment
and at least one year prior to the occurrence of the Change in
Control referred to in subparagraph (iii). Any special
election made under subparagraphs (i), (ii) or (iii) may be
revoked, and a new special election may be made thereunder, at
any time; provided, however, that any such revocation or new
election shall be effective only if it is made within the
applicable election period specified herein. Any special
election, or revocation of a special election, that may be
made under subparagraphs (i), (ii) or (iii) shall be made in
the manner set forth in the first sentence of Section 5(a)(i).
Any special election made by the Recipient under subparagraph
(i), (ii) or (iii) shall be effective only if, at the date as
12
of which payment is to be made pursuant to such election,
there is in effect for the Recipient a special election under
the comparable provision of each other Performance Units
Agreement and Restricted Units Agreement between the Recipient
and GPU, Inc. in effect on such date.
(vi) For purposes of this paragraph (b), "Involuntary
Termination" shall mean the termination of Recipient's
employment (A) as a result of the Recipient's death, (B) by
the Corporation or any subsidiary, for any reason, or (C) by
the Recipient for "Good Reason". For purposes of the
foregoing, "Good Reason" shall mean the occurrence after a
Change in Control of any of the following events or
conditions:
(1) change in the Recipient's status, title, position or
responsibilities (including reporting responsibilities)
which, in the Recipient's reasonable judgment,
represents an adverse change from the Recipient's
status, title, position or responsibilities as in effect
immediately prior thereto; the assignment to the
Recipient of any duties or responsibilities which, in
the Recipient's reasonable judgment, are inconsistent
with the Recipient's status, title, position or
responsibilities; or any removal of the Recipient from
or failure to reappoint or reelect the Recipient to any
of such offices or positions, other than in connection
with the termination of the Recipient's employment for
disability, for cause, or by the Recipient other than
for Good Reason;
(2) a reduction in the rate of the Recipient's
annual base salary;
(3) the relocation of the offices at which the Recipient
is principally employed to a location more than
twenty-five (25) miles from the location of such offices
immediately prior to such relocation, or the Recipient
being required to be based anywhere other than at such
offices, except to the extent the Recipient was not
previously assigned to a principal place of duty and
except for required travel on business of the
Corporation or any subsidiary to an extent
13
substantially consistent with the Recipient's
previous business travel obligations;
(4) the failure by the Corporation or any subsidiary to
pay to the Recipient any amount of the Recipient's
current compensation, or any amount payable under this
Agreement, within seven (7) days of the date on which
payment of such amount is due; or
(5) the failure by the Corporation or any subsidiary (x)
to continue in effect (without reduction in benefit
level, and/or reward opportunities) any material
compensation or employee benefit plan in which the
Recipient was participating immediately prior to such
failure by the Corporation or any subsidiary unless a
substitute or replacement plan has been implemented
which provides substantially identical compensation or
benefits to the Recipient or (y) to continue to provide
the Recipient with compensation and benefits, in the
aggregate, at least equal (in terms of benefit levels
and/or reward opportunities) to those provided for under
all other compensation or employee benefit plans,
programs and practices in which the Recipient was
participating immediately prior to such failure by the
Corporation or any subsidiary.
Any event or condition described in clauses (1) through (5) above
which occurs (A) within twelve (12) months prior to a Change in
Control or (B) prior to a Change in Control but which the Recipient
reasonably demonstrates (x) was at the request of a third party who
has indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control
or (y) otherwise arose in connection with, or in anticipation of a
Change in Control which has been threatened or proposed, shall
constitute Good Reason for purposes of this Agreement
notwithstanding that it occurred prior to a Change in Control.
6. WITHHOLDING TAXES
In connection with the issuance of any Common Stock or the making
of any cash payment in accordance with the
14
provisions of this Agreement, the Corporation shall withhold the
taxes then required by applicable federal, state and local law to be
so withheld. In lieu thereof, the Corporation may require the
Recipient (or, in the event of the Recipient's death, the
Recipient's beneficiary or estate) to pay to the Corporation an
amount equal to the amount of taxes so required to be withheld. Such
payment to the Corporation shall be made in cash, or, if the
Committee so determines, in cash, in shares of Common Stock with a
market value equal to such withholding obligation, or in any
combination thereof.
7. ADMINISTRATION
(a) Except for the responsibilities assigned to the MYR Board of
Directors under Section 3(b)(iv), the Committee shall have full
authority and sole discretion (subject only to the express
provisions of the Plan) to decide all matters relating to the
administration and interpretation of the Plan and this Agreement.
All such Committee determinations shall be final, conclusive, and
binding upon the Corporation, the Recipient, the Recipient's estate
and any and all other interested parties. Notwithstanding the
foregoing, any determination made by the Committee after the
occurrence of a "Change in Control" (as defined in the Plan) shall
be subject to judicial review under a "de novo" rather than a
deferential standard.
(b) This Agreement shall be subject to the terms of the Plan, and in
the case of any inconsistency between the Plan and this Agreement,
the provisions of the Plan shall govern. The Recipient hereby
acknowledges receipt of the Corporation's Prospectus which includes
the text of the Plan.
8. NONASSIGNABILITY
The Recipient's rights to payments under this Agreement shall not be
subject in any manner to anticipation, alienation, sale, transfer
(other than transfer by will or by the laws of descent and
distribution), assignment, pledge, encumbrance, attachment or
garnishment by the Recipient's creditors or the creditors of the
Recipient's spouse or any other beneficiary.
15
9. RIGHT TO CONTINUED EMPLOYMENT
Nothing in the Plan or this Agreement shall confer on the Recipient
any right to continue as an employee of the Corporation or any
subsidiary or in any way affect the Corporation or any subsidiary's
right to terminate the Recipient's employment at any time.
10. FORCE AND EFFECT
The various provisions of this Agreement are severable in their
entirety. Any determination of invalidity or unenforceability of any
one provision shall have no effect on the continuing force and
effect of the remaining provisions.
11. PREVAILING LAWS
This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania applicable to contracts made, and to be enforced,
within the Commonwealth of Pennsylvania.
12. SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns and heirs of the respective parties.
13. NOTICE
Any notice to the Corporation hereunder shall be in writing
addressed to:
Executive Vice President, Corporate Affairs
GPU Service, Inc.
300 Madison Avenue
Morristown, New Jersey 07962-1957
Any notice to the Recipient hereunder shall be in writing addressed
to:
------------------------------------------------------
------------------------------------------------------
or such other address as the Recipient shall specify to the
Corporation in writing.
16
14. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties and
shall not be modified or amended except in writing and duly signed
by each of the parties hereto. No waiver by either party of any
default under this agreement shall be deemed a waiver of any later
default set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date set forth above.
GPU, INC.
By:
------------------------------------
Fred D. Hafer
Chairman, President and Chief
Executive Officer
-----------------------------------
[Insert Name of Officer]
17