Exhibit 10 (t)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 1st day of March, 1999 by and between EMCOR
GROUP, INC., a Delaware Corporation (the "Company"), and SHELDON I. CAMMAKER
("Executive").
RECITALS
In order to induce Executive to serve as Executive Vice President and General
Counsel of the Company, 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 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 an Executive Vice President and General
Counsel of the Company. In his capacity as Executive Vice President
and General Counsel of the Company, Executive shall have the customary
powers, responsibilities and authorities of executive vice presidents
and general counsels of similar corporations of the size, type and
nature of the Company as it may exist from time to time, subject to
the direction of the Chairman of the Board of Directors (the "Board")
of the Company and the Chief Executive Officer of the Company (the
"Chairman").
1.2 Subject to the terms and condition hereof, Executive hereby agrees to
be employed as the Executive Vice President and General Counsel 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. Except
upon the prior written consent of the Chairman, Executive will not
during the Period of Employment (as hereinafter defined) (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 Chairman, 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.
2. Period of Employment. Executive's period of employment hereunder shall
commence on the date hereof (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, following a Change of Control (as defined in
Section 6.1(e)) the Period of Employment shall in no event be less than
three years.
3. Compensation.
3.1 Salary. The Company shall pay Executive a base salary ("Base Salary")
at the rate of no less than $365,000 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 amount of the
Bonus shall be determined by the Compensation Committee of the Board
of Directors in its sole discretion.
3.3 Stock Options.
(a) During each calendar year the Period of Employment, the Company
shall recommend to the Compensation Committee of the Board that
Executive shall receive as of the first business day of each
calendar year an option ("Option") to purchase not less than
10,000 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 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 the
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, and after
the lease for the current vehicle ("Current Vehicle") provided by the
Company to the Executive expires, the Company shall pay Executive $800
per month for leasing (plus maintenance and insurance) of an
automobile and shall make the initial capital cost reduction payment
with respect to the leasing of such automobile on Executive's behalf.
During the lease of the Current Vehicle the Company shall continue to
pay for maintenance and insurance of such vehicle. 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
and after the Period of Employment, a policy of directors' and officers'
liability insurance for officers and directors of the Company at such
reasonable amount of coverage as are agreed to by Executive and the Board
from time to time and which insurance policy shall be on a claims- made
basis.
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 product of two times the sum of (A) Executive's Base
Salary at its current annual rate at the time of termination
of employment plus (B) Executive's "Deemed Bonus" (as
defined below) for the calendar year in which the
termination of employment occurs;
(ii) 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; and
(iii)an amount equal to Executive's Deemed 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.
In the event of termination of a termination of Executive's
employment by the Company other than for Cause or by the
Executive for Good Reason following a Change in Control, the
factor of two in subsection 6.1(a) (i) shall be increased to
three.
For purposes of subsections 6.1(a)(i) and (iii), 6.2(a) and
6.3, the amount of the Deemed Bonus shall be the highest
Bonus paid to Executive for any year he has been employed by
the Company; provided, however, in the event Executive's
Bonus for 1996, 1997, or 1998 shall be used to determine his
Deemed Bonus, then such 1996, 1997 or 1998 Bonus shall be
increased by $100,000 for purposes of calculating the Deemed
Bonus.
(b) In addition to the amount described in subsection 6.1(a),
Executive shall be entitled to receive:
(i) until the earlier of December 31, 2000 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 December 31, 2000 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; and
(ii) all payments to which Executive has vested rights as of the
expiration of the Period of Employment 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 Executive Vice President and General Counsel,
except in connection with the termination of Executive's
employment (A) upon the termination of the Period of
Employment on December 31, 2000, (B) upon the termination of
a succeeding one-year Period of Employment (as provided for
under Section 2 hereof), (C) for Cause, (D) as a result of
Executive's Permanent Disability (as hereinafter defined) or
death or (E) by Executive other than for Good Reason;
(ii) A reduction by the Company in Executive's Base Salary,
except as provided herein, as in effect at the commencement
of employment hereunder 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 in Control; provided if a Change
of Control shall occur prior to determination in the year
2000 by the Board of the Executive's bonus for 1999, the sum
of the Executive's annual base salary plus annual bonus
shall aggregate an amount less than the sum of (i) his
annual salary for 1998 plus (ii) his bonus for 1998;
(vi) 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 New York, New
York) immediately prior to a Change in Control; or
(vii)The Company shall cease to keep in effect the policy of
directors' and officers' liability insurance for Executive
described in Section 5;
(viii)The termination of the Indemnity Agreement effective as of
April 20, 1995 between the Executive and the Company.
(d) If all or any portion of the payments or benefits provided under
this Section 6.1, either alone or together with other payments
and benefits which Executive receives or is then entitled to
receive from the Company, would constitute a "parachute payment"
within the meaning of Section 280G of the Internal Revenue Code
of 1986, as amended ("Code"), Executive shall be entitled to such
additional payments as may be necessary to ensure that the net
after tax benefit of all payments under this Section 6.1,
including the payment provided for in this subsection 6.1 (c),
shall be equal to the net after tax benefit of Executive as if no
excise tax had been imposed under Section 4999 of the Code.
The foregoing calculations shall be made, at the Company's
expense, by the Company and Executive. If no agreement on the
calculations is reached, Executive and the Company shall agree to
the selection of an accounting firm to make the calculations. If
no agreement can be reached regarding the selection of an
accounting firm, the Company shall select a nationally recognized
accounting firm which has no current or recent business
relationship with the Company. The determination of any such firm
selected shall be conclusive and binding on all parties.
(e) For purposes of this Agreement, a "Change in Control of the
Company" 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 (unless the event
causing the 25% threshold to be crossed is an acquisition of
voting common securities directly from the Company, other
than upon the conversion of convertible debt securities or
other securities and/or the exercise of options or
warrants); 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) 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.
6.2 Permanent Disability. If as a result of Executive's incapacity due to
physical or mental illness, 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
Deemed 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 December 31, 2000 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 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 Deemed 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. 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 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, 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) December
31, 2000, 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.
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:
Sheldon I. Cammaker
29 Lambert Road
White Plains, NY 10605
to Company:
Frank T. MacInnis
Chairman of the Board and Chief Executive Officer
EMCOR Group, Inc.
101 Merritt Seven, 7th Floor
Norwalk, CT 06851
with a copy to:
Kenneth C. Edgar, Jr., Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
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. All expenses, including legal expenses incurred by
Executive, relating to any arbitration shall be paid by the Company.
Judgment may be entered on an arbitrator(s)' award in any court having
jurisdiction.
14. Assignment.
This contract 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.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of Executive
by the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statement of its terms and that
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. Withholding.
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.
EMCOR GROUP, INC.
By:______________________________
EXECUTIVE
--------------------------------
Sheldon I. Cammaker