[EMCOR LOGO]
RELEASE AND LETTER AGREEMENT
December 22, 1999
Xx. Xxxxxx X. Xxxxxxxxxx
EMCOR Group, inc.
000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Xxx:
Reference is made to the Amended and Restated Employment Agreement (the
"Agreement") dated as of May 4, 1999, between you and EMCOR Group, Inc. (the
"Company").
This is to confirm that your employment with the Company will terminate as
of the close of business January 31, 2000 (the "Termination Date") and as of
such date the Agreement and your rights and obligations thereunder shall
terminate.
This Release and Letter Agreement (the "Release and Letter Agreement") sets
forth our agreement regarding the separation of your employment with the Company
and your release of any and all claims you have against the Company and its
affiliates, including those arising out of that employment and any claims you
might have under the Age Discrimination in Employment Act ("ADEA"):
1. Normal Separation Allowance: It has been agreed that your employment
with the Company shall be terminated as of the Termination Date
without "Cause", as that term is defined in the Agreement. If you
decide not to enter into this Release and Letter Agreement, you shall
be entitled to receive a severance allowance in accordance with
Section 6.1 of the Agreement ("Normal Allowance").
2. Enhanced Severance Allowance. In return for you entering into this
Release and Letter Agreement, you will be provided with an enhanced
severance allowance ("Enhanced Allowance") in lieu of the Normal
Allowance. That portion of the Enhanced Allowance set forth in
subparagraphs (a) through (d) below shall be paid to you in a lump sum
payment net of applicable taxes on the later of (a) the eighth day
following the execution of this Release and Letter Agreement and its
return to Xxxxxxx X. Xxxxxxxx, EMCOR Group, Inc., 000 Xxxxxxx Xxxxx,
Xxxxxxx, XX 00000 or (b) January 31, 2000. The Enhanced Allowance
shall consist of the following:
(a) $650,000 representing a lump sum payment of the equivalent of
twice your current annual salary;
(b) $300,000 representing a lump sum payment of twice your 1998
bonus;
(c) $12,500 representing a lump sum payment of one-twelfth of your
estimated bonus in respect of year 2000;
(d) $13,500 representing payment in respect of 10 days of vacation
time to which you are entitled by reason of your employment
during 1999 and which vacation days you will not have taken
through the Termination Date;
(e) for the period from the Termination Date through December 31,
2000, you shall 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 insurance policies;
(f) as provided in the Agreement the Company shall recommend to the
Compensation Committee of the Board of Directors that you receive
as of the first business day of year 2000 an option to purchase
not less than 5,000 shares of common stock, which upon the
Termination Date shall be exercisable in full and remain
exercisable for a period of ten years from the date of grant;
(g) for the period from the Termination Date through December 31,
2000, the Company shall pay you (i) your monthly dues for your
golf club and (ii) $800 per month for leasing (plus maintenance
and insurance) of your leased automobile; the Company shall also
bear the cost of any increased tax liability to you caused by the
provisions of this subparagraph (g);
(h) pursuant to action of the Compensation and Personnel Committee of
the Board of Directors of the Company, which administers the
stock option plan under which your November 1997 options have
been granted, it has been agreed that the terms of such options
are hereby amended so that they shall vest in full upon the
Termination Date and may be exercised at any time or from time to
time in whole or in part prior to ten years from the date of
their grant;
(i) the transition arrangements referred to in paragraph 13 hereof;
and
(j) up to $1,500 to reimburse you for legal expense incurred by you
in connection with the negotiation of this Release and Letter
Agreement.
3. Retirement Plans: You are a participant in the Company's Retirement
and Savings Plan (the "Pension Plan"), and you shall be entitled to
all your rights under the Pension Plan in accordance with the terms
thereof, including full vesting in the 401(k) part thereof; however in
accordance
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with the Pension Plan you shall forfeit your interest in the
defined contribution profit sharing part thereof.
4. No Other Payment: Except as herein specifically provided, no amounts
are to be paid to you in respect of any other insurance, benefits,
pension or retirement plan or programs.
5. Only One Separation Allowance: You acknowledge and agree that the
Enhanced Allowance is provided to you, and is accepted by you, in
place of the Normal Allowance.
6. Acceptance of Enhanced Allowance: You have decided to accept the
Company's offer of the Enhanced Allowance described above. You
acknowledge that you are agreeing to the terms set forth in this
Release and Letter Agreement in return for the Company's promise to
provide you with money and benefits to which you would otherwise not
be entitled.
7. General Release: On behalf of yourself, your heirs, executors,
administrators, and assigns, you hereby release and discharge each of
the Company, its subsidiaries, affiliates, predecessors, successors,
assigns, and all of the officers, directors and employees of the
Company and of all the other foregoing entities (collectively the
"Released Parties") from all causes of action, charges and claims for
money damages, or any other type of relief of any nature whatsoever,
whether known or unknown, whether statutory or common law, whether
federal, state or local, which you have asserted or could have
asserted, now have, or ever had, against the Released Parties,
including but not limited to those arising out of or in any way
connected with (a) your employment with the Company, (b) your
separation from employment with the Company, (c) the Agreement, or (d)
any discrimination claim based upon age, sex, race, religion, color,
national origin, disability, marital status, appearance, or sexual
orientation under federal, state or local law, rule or regulation
and/or claim for wrongful termination and any other claim, whether in
tort, contract, or otherwise against the Released Parties; provided,
however, nothing herein contained shall constitute a release of your
rights or the Company's obligations under this Release and Letter
Agreement and under the Indemnification Agreement effective March 20,
1995 (the "Indemnification Agreement") between you and the Company,
your vested rights in and to the Pension Plan, and any rights for
indemnification ("Other Indemnification Rights") you may have as an
officer of the Company pursuant to applicable law and its certificate
of incorporation and by-laws (all of the rights referred to in this
proviso being referred to herein collectively as "Preserved Rights").
8. ADEA Release. The Enhanced Allowance being given to you is also
accepted by you in full and final release and settlement of any and
all claims that you may have under the ADEA connected with your
employment with the Company (or the termination thereof) arising on or
before the date of your acceptance of this Release and Letter
Agreement that is indicated below.
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9. Waiver of Claims and Covenant Not to Xxx. You expressly waive all
claims or rights to any type or amount of relief not set forth in this
Release and Letter Agreement (including, but not limited to, any
claims you may have for attorneys' fees and any claims you may have
for reinstatement with the Company or any of its affiliates or
successors) and covenant not to xxx and to hold forever harmless each
of the Released Parties as to any and all actions which they took, may
have taken, or failed to take in the course of your employment with
the Company and your termination therefrom, except for your right to
enforce your Preserved Rights.
10. Future Employment. Without the prior written consent of the Company,
you will not, now or at any time in the future seek employment with
the Released Parties or any one of them.
11. Indemnification of Legal Costs: If you violate this Release and Letter
Agreement by initiating any administrative or judicial proceeding
involving the Released Parties or suing any of the Released Parties
(other than solely to enforce your rights under this Release and
Letter Agreement and under the Indemnification Agreement, to enforce
your vested rights in and to the Pension Plan, or to enforce Other
Indemnification Rights), you agree that you will pay all costs and
expenses of defending against the suit or administrative proceeding
incurred by the Released Parties, including, but not limited to, their
attorneys' fees.
12. Non-Admission of Liability: Nothing contained herein shall be
construed as an admission by the Company or you of fault or
liability with respect to the other or as an admission by any party
of any allegation that might be made by the other.
13. Outplacement: In addition, to the extent you elect to use an
outplacement service firm, the Company shall pay to such firm up to
$35,000 for services it provides to you during the period commencing
with the Termination Date. During the period commencing with the
Termination Date and ending upon the sooner of June 30, 2000 or the
date you commence full time employment with another entity, the
Company shall continue to make available to you its telephone, e-mail,
and voice mail systems, hold mail for you, and continue to answer your
telephone in the same manner as is presently the case.
14. Non-Disparagement. Neither party to this Release and Letter
Agreement shall make disparagements about or in any other way
attempt to disparage or impair the reputation or good name of the
other party or the Company's divisions, affiliates, subsidiaries, or
any of their respective officers, directors or employees.
15. Confidential Information. You hereby covenant and agree that during
the course of your employment with the Company, you came into contact
with, and had access to, information that is the property of the
Company. Such information includes, but is not limited to, specific
strategic undertakings, decisions and plans for future business and
other development, all of which information you acknowledge and agree
is
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highly confidential and not generally known or available to the
public. You agree that you have not and will not utilize or disclose
any of the above-described confidential information to any person or
entity for any reason or purpose whatsoever.
16. Nondisclosure Obligation. You acknowledge and agree that the terms of
this Release and Letter Agreement are to be kept confidential by you
and that you will not discuss with any person, including any past,
present or future employee of the Company, the terms or conditions of
this Release and Letter Agreement except as may be required by law,
rule or regulation adopted pursuant to law, court or administrative
order or decree in or in connection with testimony given or documents
subpoenaed in a judicial or administrative proceeding. Should you be
called to testify and divulge the terms of this Release and Letter
Agreement, you agree to join the Company, in seeking a confidentiality
order in the form sought by the Company.
17. Possible Excise Tax. Anything in this Release and Letter Agreement to
the contrary notwithstanding, if it is determined (as hereafter
provided) that any payment or distribution by the Company to you or
for your benefit, whether paid or payable or distributed or
distributable pursuant to the terms of this Release and Letter
Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar
right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing (a "Payment"),
would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") (or any
successor provision thereto), by reason of being "contingent on a
change in ownership or control" of the Company, within the meaning of
Section 28OG of the Code (or any successor provision thereto) or to
any similar tax imposed by state or local law, or any interest or
penalties with respect to such excise tax (such tax or taxes, together
with any such interest and penalties, are hereafter collectively
referred to as the "Excise Tax"), then you shall be entitled to
receive an additional payment or payments (a "Gross-Up Payment") in an
amount such that, after payment by you of all taxes (including any
interest or penalties imposed with respect to such taxes), including
any Excise Tax, imposed upon the Gross-Up Payment, you retain an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. In addition, the provisions of Section 6(d) and 6(e) of
the Agreement are incorporated herein by reference and shall have the
same effect as if set forth herein in their entirety except that the
term "you" shall be substituted for the term "the Executive" and the
references in the Agreement to Sections 6(d), 6(d)(ii), 6(d)(iii),
6d(iv), 6(d)(v), 6(d)(vi), and 6(d)(vii) shall be deemed to refer to
this paragraph 17.
18. Consultation with an Attorney: You acknowledge that you have been
advised previously to consult with your own attorney prior to entering
into this Release and Letter Agreement and that you were afforded
sufficient time to undertake such consultation.
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19. Period of Consideration. By your signature below, you acknowledge that
the Company complied with the ADEA by giving you a period of at least
twenty-one (21) days from the date that this Release and Letter
Agreement was first provided to you to consider the provisions hereof
and to decide whether to accept them. You further acknowledge that no
representative of the Company ever stated or implied that you had less
than twenty-one (21) days to consider this Release and Letter
Agreement. You also acknowledge that, to the extent you decided to
sign this Release and Letter Agreement prior to the expiration of the
full twenty-one (21) day period, such decision was knowing and
voluntary on your part and was in no way coerced by the Company. To
the extent any changes were made in this Release and Letter Agreement
as a result of a negotiations taking place after the date it was
provided to you, you and the Company agree that such changes, whether
material or not, did not restart the running of the period of
twenty-one (21) days to consider this Release and Letter Agreement
required by the ADEA.
20. Entire Agreement: This instrument sets forth the entire agreement
between you and the Company relating to your separation from the
Company's employ. By your signature below, you acknowledge that in
entering into this Release and Letter Agreement you have not relied
upon any representation, oral or written, not set forth herein.
21. Right to Revoke Agreement: This Release and Letter Agreement will not
become effective or enforceable for a period of seven (7) days from
the date of your acceptance of this Release and Letter Agreement
indicated below. During this seven-day period, you have a right to
change your decision to accept the Enhanced Allowance that has been
offered to you and to revoke this Release and Letter Agreement.
If the above correctly sets forth our agreement, please sign, date, and
return the original.
Very truly yours,
EMCOR GROUP INC.
By: /s/ Xxxxx X. XxxXxxxx
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Xxxxx X. XxxXxxxx
Chairman of the Board
I have read the above Release and Letter Agreement, and I understand,
accept, and agree to the terms and acknowledgments it contains
1/19/00 /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------- --------------------------------
Date Xxxxxx X. Xxxxxxxxxx
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