Ehibit 10 (u)
CONTINUITY AGREEMENT
This Agreement ("Agreement") dated as of January 31, 1999 amends and
restates a Continuity Agreement dated as of June 22, 1998 by and between the
EMCOR GROUP, INC., a Delaware corporation (the "Company"), and SHELDON I.
CAMMAKER (the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") considers the
continued services of key executives of the Company to be in the best interests
of the Company and its stockholders; and
WHEREAS, the Board desires to assure, and has determined that it is
appropriate and in the best interests of the Company and its stockholders to
reinforce and encourage the continued attention and dedication of key executives
of the Company to their duties of employment without personal distraction or
conflict of interest in circumstances arising from the possibility or occurrence
of a change of control of the Company; and
WHEREAS, the Board has authorized the Company to enter into continuity
agreements with those key executives of the Company who are designated by the
Compensation and Personnel Committee of the Board of Directors ("Committee"),
such agreements to set forth the severance compensation which the Company agrees
under certain circumstances to pay such executives; and
WHEREAS, the Executive is a key executive of the Company and has been
designated by the Committee as an executive to be offered such a continuity
compensation agreement with the Company.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive agree as follows:
1. Term of Agreement. On the date on which a Change of Control occurs (the
"Effective Date"), this Agreement shall become effective. If Executive
ceases to be employed by reason of an Anticipatory Termination (as defined
in Section 3 (c)) prior to the Effective Date, then Executive shall receive
the severance benefits provided herein and the Effective Date of this
Agreement shall be deemed to be the date immediately preceding the
occurrence of an Anticipatory Termination. If Executive ceases to be
employed for any reason other than an Anticipatory Termination prior to a
Change of Control, this Agreement shall terminate and have no effect and
Executive shall receive such severance payments as are provided in any
existing agreement between the Executive and the Company.
If a Change of Control occurs, the Executive's employment shall be
continued hereunder for the period (the "Employment Period") commencing on
the Effective Date and ending on the second anniversary of the date on
which a Change of Control occurs, subject to the termination of Executive's
employment as described hereinafter. Any existing employment agreement
between the Executive and the Company shall continue to be effective
following the Change of Control, but severance amounts under this Agreement
shall be reduced by amounts payable under any such employment agreement.
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 (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 stockholders 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 stockholders 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).
2. Employment following Change of Control. Executive shall have at least the
same titles and responsibilities as those in effect immediately prior to
the Change of Control. Executive shall receive an annual base salary which
is not less than that in effect immediately prior to the Change of Control
and the Company shall review the salary annually with a view to increasing
it; provided any such increase shall be in the sole discretion of the
Board. Once increased, base salary can not be decreased. The Executive
shall also be paid an annual bonus (the "Bonus") which shall be no less
than the higher of (i) the bonus paid or payable in respect of the year
prior to the Change of Control, or (ii) the average of the annual bonuses
paid or payable in respect of the three years prior to the Change of
Control. Notwithstanding the foregoing, if a Change of Control shall occur
prior to determination in the year 2000 by the Board of the Executive's
bonus for 1999, then the sum of the Executive's annual base salary plus
annual bonus shall equal an amount not less than (i) his annual base salary
for 1998 plus (ii) his bonus for 1998 (or if not then determined,1997). In
addition, the Executive shall be provided with incentive compensation,
pension, general insurance and fringe benefits and perquisites that are
commensurate with the benefits and perquisites provided to Executive
immediately prior to the Change of Control or, if more favorable to
Executive, at the level made available to other similarly situated
executive officers of the Company after the Change of Control. Upon the
Change of Control, the Company shall also cause Executive's outstanding
options to become immediately exercisable.
3. Termination Following Change of Control.
(a) The Executive shall be entitled to the severance benefits provided in
Section 4 hereof in the event Executive's employment is terminated (A)
within two years following a Change of Control (i) by the Company
without Cause, (ii) by Executive for Good Reason, or (iii) for any
reason during the 30-day period immediately following the first
anniversary of the Change of Control or (B) prior to a Change of
Control, as a result of an Anticipatory Termination.
Notwithstanding the foregoing, except as set forth in item (iii)
above, Executive shall not be entitled to severance benefits in the
event of a termination of employment on account of death, Disability
or Retirement, but excluding any such termination which is coincident
with or subsequent to a termination which would otherwise give rise to
severance benefits. For purposes of this Agreement:
(i) "Disability" shall mean an illness or injury preventing Executive
from performing his duties, as they existed immediately prior to
the illness or injury, on a full time basis for 180 consecutive
business days. (ii) "Retirement" shall mean a termination of
employment by Executive pursuant to late, normal or early
retirement under a pension plan sponsored by the Company, as
defined in such plan.
(b) Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to Executive by the Board or an officer of the Company
which specifically identifies the manner in which the Board or
the officer believes that Executive has not substantially
performed Executive's duties; or
(ii) (A) the conviction of, or plea of guilty or nolo contendere to, a
felony or (B) the willful engaging by Executive in gross
misconduct which is materially and demonstrably injurious to the
Company.
In each case above, for a termination of employment to be for
Cause: (a) the Executive must be provided with a Notice of
Termination (as described in Section 3 (d)); (b) the Executive
must be provided with an opportunity to be heard by the Board no
earlier than 30 days following the Notice of Termination (during
which notice period Executive has failed to cure or resolve the
behavior in question); and (c) there must be a good faith
determination of Cause by at least 3/4 of the non-employee
outside directors of the Company.
(c) Good Reason and Anticipatory Termination. For purposes of this
Agreement, "Good Reason" shall mean:
(i) Executive's annual salary is reduced below the higher of (A) the
amount in effect on the Effective Date, or (B) the highest amount
in effect at any time thereafter;
(ii) Executive's annual bonus is reduced below the Bonus;
(iii)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 Executive's annual base salary plus annual bonus in respect of
1999 shall aggregate an amount less than the sum of (i) his
annual salary for 1998 plus (ii) his bonus for 1998 (or if not
then determined,1997);
(iv) Executive's duties and responsibilities or the program of
incentive compensation and retirement and general insurance
benefits offered to Executive are materially and adversely
diminished in comparison to the duties and responsibilities or
the program of benefits enjoyed by Executive on the Effective
Date;
(v) Executive is required to be based at a location more than 50
miles from the location where Executive was based and performed
services on the Effective Date; or
(vi) failure to provide for the assumption of this Agreement by any
successor entity;
provided, however, that any diminution of duties or
responsibilities that occurs solely as a result of the fact that
the Company ceases to be a public company shall not, in and of
itself, constitute Good Reason.
Any event or condition describe d in clauses (i) through (vi) or
a termination without Cause, either of which occurs prior to a
Change of Control but which Executive reasonably demonstrates (A)
was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change
of Control (a "Third Party"), or (B) otherwise arose in
connection with, or in anticipation of a Change of Control, shall
constitute Good Reason for purposes of this Agreement,
notwithstanding that it occurred prior to a Change of Control
("Anticipatory Termination").
Executive shall give the Company written notice of any event
which he claims is the basis for Good Reason and the Company
shall have 30 days within which to cure or resolve the behavior
in question before Executive can terminate for Good Reason.
(d) Notice of Termination. Any purported termination of the Executive's
employment with the Company shall be communicated by a Notice of
Termination to the Executive, if such termination is by the Company,
or to the Company, if such termination is by the Executive. For
purposes of this Agreement, "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provisions so indicated. For
purposes of this Agreement, no purported termination of Executive's
employment with the Company shall be effective without such a Notice
of Termination having been given.
(e) Dispute Resolution. Disputes arising from the operation of this
Agreement, including, but not necessarily being limited to, the manner
of giving the Notice of Termination, the reasons or cause for the
Executive's termination or the amount of severance compensation due to
the Executive subsequent to the Executive's termination, may be
resolved, at the Executive's discretion, by arbitration; provided,
however, that -- disputes arising under Section 11 of this Agreement
shall not be resolved under this Section 3 (e). In the event that any
such dispute which the Executive elects to be resolved by arbitration,
after notice thereof is given to the other party in writing, is not
able to be resolved by mutual agreement of the parties within sixty
(60) calendar days of the giving of such notice, the Executive and the
Company hereby agree to promptly submit such a dispute to binding
arbitration in New York, New York in accordance with New York law and
the rules and procedures of the American Arbitration Association.
During any period in which a dispute is pending that the Executive
elects to be resolved by arbitration, the Executive shall continue to
receive his salary (including any Bonus), as provided in Section 2
hereof, and benefits as if his employment with the Company had
continued through the date of the arbiters' determination, and any
such payments or benefits shall not be offset against any severance,
either under this Agreement or otherwise, to which Executive may be
entitled.
4. Compensation Upon Termination After a Change of Control. If within two (2)
years after the Effective Date, the Executive's employment by the Company
shall be terminated in accordance with Section 3 (a) (the "Termination"),
the Executive shall be entitled to the following payments and benefits:
(a) Severance. As soon as practicable after the Termination, but in any
event no later than 10 business days following such Termination, the
Company shall pay or cause to be paid to the Executive, a lump sum
cash amount equal to three (3) times the sum of (i) the Executive's
annual base salary on the Effective Date (the "Base Salary"), (ii) the
Bonus, and (iii) the value of the perquisites (e.g., car allowance,
club dues, etc., including any ordinary tax gross-ups for perquisites)
provided to Executive in respect of the year prior to the Change of
Control and, if greater, the year in respect of which the Change of
Control occurs. In making the calculation in the immediately preceding
sentence, if a Change of Control shall occur prior to a determination
by the Board in the year 2000 of the Executive's bonus for 1999, the
annual base salary referred to in clause (i) of the immediately
preceding sentence shall be deemed the Executive's annual base salary
for 1998 and the Bonus referred to in clause (ii) of the immediately
preceding sentence shall be deemed the bonus paid to him in respect of
1998 (or if not then determined, 1997). In addition, at the time of
the above payment, the Executive shall be entitled to an additional
lump sum cash payment equal to the sum of (A) Executive's annual
salary through the date of termination, (B) a pro rata portion of the
Bonus (calculated through the date of termination); provided, however,
if a Change of Control shall occur prior to a determination by the
Board in the year 2000 of the Executive's bonus for 1999, the amount
payable in respect of clause (A) shall be calculated as if the
Executive's annual salary rate were that payable to him in 1998 and
the amount payable in respect of clause (B) shall be the pro rata
portion of his Bonus for 1998 (or if not then determined, 1997), and
(C) an amount, if any, equal to compensation previously deferred
(excluding any qualified plan deferral) and any accrued vacation pay,
in each case, in full satisfaction of Executive's rights thereto.
(b) Additional Benefits. The Executive shall be entitled to continued
medical, dental and life insurance coverage for the Executive and the
Executive's eligible dependents on the same basis as in effect prior
to the Change of Control or the Executive's Termination of employment,
whichever is deemed to provide for more substantial benefits, until
the earlier of (A) thirty-six (36) months (the "Separation Period")
after the Executive's Termination or (B) the commencement of
comparable coverage with a subsequent employer; provided, however,
that such continued coverage shall not count against any continued
coverage required by law.
(c) Outplacement. If so requested by the Executive, outplacement services
shall be provided by a professional outplacement provider at a cost to
the Company of not more than 20% of the Executive's Base Salary.
(d) Withholding. Payments and benefits provided pursuant to this Section 4
shall be subject to any applicable payroll and other taxes required to
be withheld.
5. Certain Additional Payments by the Company:
(a) 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 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.
(b) Subject to the provisions of Section 5 (f) hereof, all determinations
required to be made under this Section 5, 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
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
5(f) 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.
(c) 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 5(b) hereof.
(d) 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.
(e) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by
Sections 5 (b) and (d) 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.
(f) 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:
(i) provide the Company with any written records or documents in his
possession relating to such claim reasonably requested by the
Company;
(ii) 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;
(iii)cooperate with the Company in good faith in order effectively to
contest such claim; and
(iv) 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 5 (f), the
Company shall control all proceedings taken in connection with
the contest of any claim contemplated by this Section 5 (f) 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 sue 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, in 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 sue 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 or 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.
(g) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 5 (f) 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 5 (f) 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 5(f) 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 repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be pursuant to this Section 5.
6. Obligations Absolute; No Mitigation; No Effect On Other Rights.
(a) The obligations of the Company to make the payment to the Executive,
and to make the arrangements, provided for herein are absolute and
unconditional and may not be reduced by any circumstances, including
without limitation any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or any
third party at any time.
(b) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount
of any compensation or benefits provided to the Executive in any
subsequent employment.
(c) The provisions of this Agreement, and any payment provided for herein,
shall not supersede or in any way limit the rights, benefits, duties
or obligations which the Executive may now or in the future have under
any benefit, incentive or other plan or arrangement of the Company or
any other agreement with the Company.
7. Not an Employment Agreement. Subject to the terms of this or any other
agreement or arrangement between the Company and the Executive that may
then be in effect, nothing herein shall prevent the Company from
terminating the Executive's employment.
8. Successors; Binding Agreement, Assignment.
(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business of the Company, by agreement to
expressly, absolutely and unconditionally assume and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to
the effectiveness of any such succession shall be a material breach of
this Agreement and shall entitle the Executive to terminate the
Executive's employment with the Company or such successor for Good
Reason immediately prior to or at any time after such succession. As
used in this Agreement, "Company" shall mean (i) the Company as
hereinbefore defined, and (ii) any successor to all or substantially
all of the Company's business or assets which executes and delivers an
agreement provided for in this Section 8(a) or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation
of law, including any parent or subsidiary of such a successor.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would be
payable to the Executive hereunder if the Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's
estate or designated beneficiary. Neither this Agreement nor any right
arising hereunder may be assigned or pledged by the Executive.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed United States certified or registered mail, return
receipt requested, postage prepaid, and addressed, in the case of the
Company, to the Company at:
101 Merritt Seven, 7th Floor
Norwalk, CT 06851
Attention: Frank T. MacInnis, Chairman of the Board
and in the case of the Executive, to the Executive at the most current
address shown on the Executive's employment records. Either party may
designate a different address by giving notice of change of address in the
manner provided above, except that notices of change of address shall be
effective only upon receipt.
10. Expenses. 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.
11. Confidentiality. The Executive shall retain in confidence any and all
confidential information concerning the Company and its respective business
which is now known or hereafter becomes known to the Executive, except as
otherwise required by law and except information (i) ascertainable or
obtained from public information, (ii) received by the Executive at any
time after the Executive's employment by the Company shall have terminated,
from a third party not employed by or otherwise affiliated with the Company
or (iii) which is or becomes known to the public by any means other than a
breach of this Section 11. Upon any termination of Executive's employment,
the Executive shall not take or keep any proprietary information or
documentation belonging to the Company.
12. Miscellaneous. No provision of this Agreement may be amended, altered,
modified, waived or discharged unless such amendment, alteration,
modification, waiver or discharge is agreed to in writing signed by the
Executive and such officer of the Company as shall be specifically
designated by the Committee or by the Board. No waiver by either party, at
any time, of any breach by the other party of, or of compliance by the
other party with, any condition or provision of this Agreement to be
performed or complied with by such other party shall be deemed a waiver of
any similar or dissimilar provision or condition of this Agreement or any
other breach of or failure to comply with the same condition or provision
at the same time or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not
expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the
laws of the State of New York without giving effect to its conflict of laws
rules. Any action brought by the Executive or the Company shall be brought
and maintained in a court of competent jurisdiction in the State of New
York.
13. Severability. If any one or more of the provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be
affected thereby. To the extent permitted by applicable law, each party
hereto waives any provision of law which renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
14. Revocation. This Agreement may be revoked at any time prior to the
Effective Date, without prior notice to Executive, upon the resolution of
the Board that the continued existence of this Agreement and of similar
agreements with other employees of the Company is no longer in the best
interests of the Company.
15. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be an original and all of which shall be deemed to
constitute one and the same instrument.
16. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, commitments or
understanding with respect to the matters provided for herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMCOR GROUP, INC.
By: ---------------------------
Frank T. MacInnis
Chairman of the Board and
Chief Executive Officer
--------------------------------
Executive: Sheldon I. Cammaker