Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") by and
between Integrated Electrical Services, Inc., a Delaware corporation (the
"Company"), and X.X. Xxxxx ("Executive") is hereby entered into effective as of
this 30th day of January, 2003 (the "Effective Date").
RECITALS
The following statements are true and correct:
WHEREAS, the Company and Executive previously entered into an employment
agreement dated as of the 22nd day of May, 1998; and
WHEREAS, this agreement was amended by the First Amendment dated as of the
18th day of December, 2001; and
WHEREAS, the parties to the original agreement as amended, deem it
desirable to further amend and restate the agreement to provide additional
provisions and amend existing provisions;
As of the Effective Date, IES and the other subsidiaries of IES
(collectively, the "IES Companies") are engaged primarily in the providing of
electrical contracting services.
Executive is employed hereunder by the Company in a confidential
relationship wherein Executive, in the course of his employment with the
Company, has and will continue to become familiar with and aware of information
as to the Company's customers and specific manner of doing business, including
the processes, techniques and trade secrets utilized by the Company, and future
plans with respect thereto, all of which has been and will be established and
maintained at great expense to the Company. This information is a trade secret
and constitutes the valuable goodwill of the Company.
Therefore, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, the agreement, as
amended, is hereby amended and restated as follows:
AGREEMENTS
1. Employment and Duties. (a) The Company employs Executive as Chief
Executive Officer of the Company. As such, Executive shall have
responsibilities, duties and authority reasonably accorded to, expected of and
consistent with Executive's position as Chief Executive Officer of the Company
Executive hereby accepts this employment upon the terms and conditions herein
contained and, subject to paragraph 1(c), agrees to devote substantially all of
his time, attention and efforts to promote and further the business and
interests of the Company and its affiliates.
(b) Executive shall faithfully adhere to, execute and fulfill all
lawful policies established by the Company.
(c) Except as set forth on Schedule 1(c) hereto, Executive shall not,
during the term of his employment hereunder, engage in any other business
activity pursued for gain, profit or other pecuniary advantage if such
activity interferes in any material respect with Executive's duties and
responsibilities hereunder. The foregoing limitations shall not be
construed as prohibiting Executive from making personal investments in such
form or manner as will neither require his services in the operation or
affairs of the companies or enterprises in which such investments are made
nor violate the terms of paragraph 3 hereof.
(d) Executive shall be entitled to vacation in accordance with the
policies of the Company.
2. Compensation. For all services rendered by Executive, the Company
shall compensate Executive as follows:
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(a) Base Salary. The base salary payable to Executive during the term
shall be $475,000 per year, payable in accordance with the Company's
payroll procedures for officers, but not less frequently than monthly. Such
base salary may be increased from time to time, at the discretion of the
Board of Directors of IES (the "IES Board"), in light of the Executive's
position, responsibilities and performance.
(b) Executive Perquisites, Benefits and Other Compensation. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Reimbursement for all business travel and other out-of-pocket
expenses (including those costs to maintain any professional
certifications held or obtained by Executive) reasonably incurred by
Executive in the performance of his duties pursuant to this Agreement
and in accordance with the Company's policy for executives of the
Company. All such expenses shall be appropriately documented in
reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the
Company's expense reporting policy.
(ii) Executive shall, subject to the satisfaction of any general
eligible criteria, be eligible to participate in all compensation and
benefit plans and programs as are maintained from time to time for
executives of the Company.
(iii) The Company shall provide Executive with such other
perquisites as may be deemed appropriate for Executive by the IES
Board.
3. Non-Competition Agreement.
(a) Executive recognizes that the Company's willingness to enter into
this Agreement is based in material part on Executive's agreement to the
provisions of this paragraph 3 and that Executive's breach of the
provisions of this paragraph 3 could materially damage the Company. Subject
to the further provisions of this Agreement, Executive will not, during the
term of his employment with the Company, and for a period of two years
immediately following the termination of such for any reason whatsoever,
either for Cause or in the event the Executive terminates his employment
without Good Reason, except as may be set forth herein, directly or
indirectly, for himself or on behalf of or in conjunction with any other
person, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any electrical contracting business in direct
competition with any IES Company within 100 miles of where any IES
Company conducts business, including any territory serviced by an IES
Company during the term of Executive's employment (the "Territory");
(ii) call upon any person who is, at that time, an employee of an
IES Company for the purpose or with the intent of enticing such
employee away from or out of the employ of the IES Company;
(iii) call upon any person or entity which is, at that time, or
which has been, within one year prior to that time, a customer of an
IES Company within the Territory for the purpose of soliciting or
selling electrical contracting products or services in direct
competition with the IES Companies within the Territory; or
(iv) call upon any prospective acquisition candidate, on
Executive's own behalf or on behalf of any competitor, which candidate
was, to Executive's knowledge after due inquiry, either called upon by
an IES Company or for which an IES Company made an acquisition
analysis, for the purpose of acquiring such entity.
(v) disclose customers, whether in existence or proposed, of the
Company to any person, firm, partnership, corporation or business for
any reason or purpose whatsoever except to the extent that the Company
has in the past disclosed such information to the public for valid
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business reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Executive from acquiring as an investment not more than 1% of
the capital stock of a competing business, whose stock is traded on a
national securities exchange, the Nasdaq Stock Market or on an
over-the-counter or similar market, unless the Board of Directors of the
Company consents to such acquisition.
(b) Because of the difficulty of measuring economic losses to the
Company and IES as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be caused to the
Company and IES for which they would have no other adequate remedy,
Executive agrees that foregoing covenant may be enforced by the Company, in
the event of breach by him, by injunctions and restraining orders.
Executive further agrees to waive any requirement for the Company's
securing or posting of any bond in connection with such remedies.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the IES Companies on the date of the execution
of this Agreement and the current plans of the IES Companies; but it is
also the intent of the Company and Executive that such covenants be
construed and enforced in accordance with the changing activities, business
and locations of the IES Companies throughout the term of this covenant,
whether before or after the date of termination of the employment of
Executive, unless the Executive was conducting such new business prior to
any IES Company conducting such new business. For example, if, during the
term of this Agreement, an IES Company engages in new and different
activities, enters a new business or establishes new locations for its
current activities or business in addition to or other than the activities
or business enumerated under the Recitals above or the locations currently
established therefore, then Executive will be precluded from soliciting the
customers or employees of such new activities or business or from such new
location and from directly competing with such new business within 100
miles of its then-established operating location(s) through the term of
this covenant, unless the Executive was conducting such new business prior
to any IES Company conducting such new business.
(d) It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder and shall enter into a
business or pursue other activities not in competition with the electrical
contracting activities of the IES Companies or similar activities or
business in locations the operation of which, under such circumstances,
does not violate clause (a)(i) of this paragraph 3, and in any event such
new business, activities or location are not in violation of this paragraph
3 or of Executive's obligations under this paragraph 3, if any, Executive
shall not be chargeable with a violation of this paragraph 3 if the IES
Companies shall thereafter enter the same, similar or a competitive (i)
business, (ii) course of activities or (iii) location, as applicable.
(e) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of
competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and the Agreement shall thereby be reformed.
(f) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company
or IES, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by IES or the Company of such
covenants. It is specifically agreed that the period of two years (subject
to the further provisions of this Agreement) following termination of
employment stated at the beginning of this paragraph 3, during which the
agreements and covenants of Executive made in this paragraph 3 shall be
effective, shall be computed by excluding from such computation any time
during which Executive is in violation of any provision of this paragraph
3.
(g) The Company and the Stockholders hereby agree that this covenant
is a material and substantial part of this transaction.
4. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the Effective Date and continue for three years (the "Initial
Term") and, unless terminated sooner as herein
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provided, shall continue on a year-to-year basis on the same terms and
conditions contained herein in effect as of the time of renewal (the "Extended
Term"). This Agreement and Executive's employment may be terminated in any one
of the following ways:
(a) Notice of Non-Renewal. This amended and restated agreement may be
terminated by the Company by serving notice of intent not to continue the
agreement no later than ninety (90) days prior to the expiration of the
Initial or Extended Term. Not withstanding the foregoing, in the event a
change of control (as defined in Paragraph 18) occurs during either the
Initial term or the Extended Term, this agreement may not be terminated by
the Company for a period of two (2) years following such change in control.
(b) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(c) Disability. If, as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from his
full-time duties hereunder for four consecutive months, then 30 days after
receiving written notice (which notice may occur before or after the end of
such four-month period, but which shall not be effective earlier than the
last day of such four-month period), the Company may terminate Executive's
employment hereunder, provided that Executive is unable to resume his
full-time duties at the conclusion of such notice period. Also, Executive
may terminate his employment hereunder if his health should become impaired
to an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health, provided that Executive shall
have furnished the Company with a written statement from a doctor
reasonably acceptable to the Company to such effect and provided, further,
that, at the Company's request made within 30 days of the date of such
written statement, Executive shall submit to an examination by a doctor
selected by the Company who is reasonably acceptable to Executive or
Executive's doctor and such second doctor shall have concurred in the
conclusion of Executive's doctor. In the event this Agreement is terminated
as a result of Executive's disability, Executive shall receive from the
Company, in a lump sum payment due within 10 days of the effective date of
termination, the base salary at the rate then in effect (i) during the
Initial Term, for whatever time period, if any, is remaining under the
Initial Term, provided that such period shall not be less than one year,
and (ii) during the Extended Term, equivalent to one year of base salary.
(d) Cause. The Company may terminate this Agreement and Executive's
employment 10 days after written notice to Executive for "Cause", which
shall be: (1) Executive's willful, material and irreparable breach of this
Agreement (which remains uncured 5 days after delivery of written notice);
(2) Executive's gross negligence in the performance or intentional
nonperformance (in either case continuing for 10 days after receipt of
written notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's dishonesty or fraud with
respect to the business, reputation or affairs of the Company or IES which
materially and adversely affects the Company or IES (monetarily or
otherwise); (4) Executive's conviction of a felony crime or crime involving
moral turpitude; (5) Executive's drug or alcohol abuse; or (6) Executive's
violation of Company policy (which remains uncured or continues 5 days
after delivery of written notice). In the event of a termination for Cause,
Executive shall have no right to any severance compensation.
(e) Without Cause. Executive may, without Good Reason (as hereinafter
defined) terminate this Agreement and Executive's employment, effective 30
days after written notice is provided to the Company. Executive may be
terminated without Cause by the Company during either the Initial Term or
Extended Term. Should Executive be terminated by the Company without Cause
or should Executive terminate with Good Reason during the Initial Term or
Extended Term, Executive shall receive from the Company, in a lump sum
payment due on the effective date of termination, the base salary at the
rate then in effect for whatever time period is remaining under the Initial
Term or the Extended Term, as applicable, or for one year, whichever amount
is greater. Further, any termination without Cause by the Company or by
Executive for Good Reason shall operate to eliminate the period set forth
in paragraph 3(a) and during which the terms of paragraph 3 apply. If
Executive resigns or otherwise terminates his employment without Good
Reason, rather than the Company terminating his employment pursuant to this
paragraph 4(d), Executive shall receive no severance compensation.
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Executive shall have "Good Reason" to terminate his employment
hereunder upon the occurrence of any of the following events, unless such
event is agreed to in writing by Executive: (a) Executive is demoted by
means of a material reduction in authority, responsibilities or duties to a
position of less stature or importance within the Company than the position
described in Section 1 hereof; (b) Executive's annual base salary as then
in effect is reduced; or (c) the relocation of the Company's principal
executive offices to a location outside the greater Houston, Texas area.
If termination of Executive's employment arises out of the Company's
failure to pay Executive on a timely basis the amounts to which he is entitled
under this Agreement or as a result of any other breach of this Agreement by the
Company, as determined by a court of competent jurisdiction or pursuant to the
provisions of paragraph 18 below, the Company shall pay all amounts and damages
to which Executive may be entitled as a result of such breach, including
interest thereon and all reasonable legal fees and expenses and other costs
incurred by Executive to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 shall apply in the event this Agreement is terminated
as a result of a breach by the Company.
Upon termination of this Agreement for any reason provided above, in
addition to the above payments, if any, Executive shall be entitled to receive
all compensation earned and all benefits and reimbursements due through the
effective date of termination, paid to Executive in a lump sum on the effective
date. All other rights and obligations of the Company and Executive under this
Agreement shall cease as of the effective date of termination, except that the
Executive's obligations under paragraphs 3, 5, 6, 7, and 8 herein shall survive
such termination in accordance with their terms.
5. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company, IES or any
IES Companies or their representatives, vendors or customers which pertain to
the business of the Company or IES or any IES Companies shall be and remain the
property of the Company or IES or the IES Company, as the case may be, and be
subject at all times to their discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company or IES or the IES Company which is collected by Executive shall be
delivered promptly to the Company without request by it upon termination of
Executive's employment.
6. Inventions. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one year thereafter, if conceived during employment, and which are
directly related to the business or activities of the Company and which
Executive conceives as a result of his employment by the Company. Executive
hereby assigns and agrees to assign all his interests therein to the Company or
its nominee. Whenever requested to do so by the Company, Executive shall execute
any and all applications, assignments or other instruments that the Company
shall deem necessary to apply for and obtain Letters Patent of the United States
or any foreign country or to otherwise protect the Company's interest therein.
7. Trade Secrets. Executive agrees that he will not, during or after
the term of this Agreement, disclose the specific terms of the Company's or IES'
relationships or agreements with their respective significant vendors or
customers or any other significant and material trade secret of the Company or
IES, whether in existence or proposed, to any person, firm, partnership,
corporation or business for any reason or purpose whatsoever.
8. Confidentiality.
(a) Executive acknowledges and agrees that all Confidential
Information (as defined below) of the Company is confidential and a
valuable, special and unique asset of the Company that gives the Company an
advantage over its actual and potential, current and future competitors.
Executive further acknowledges and agrees that Executive owes the Company a
fiduciary duty to preserve and protect all Confidential Information from
unauthorized disclosure or unauthorized use, that certain Confidential
Information constitutes "trade secrets" under applicable laws and, that
unauthorized disclosure or unauthorized use of the Company's Confidential
Information would irreparably injure the Company.
(b) Both during the term of Executive's employment and after the
termination of Executive's employment for any reason (including wrongful
termination), Executive shall hold all Confidential
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Information in strict confidence, and shall not use any Confidential
Information except for the benefit of the Company, in accordance with the
duties assigned to Executive. Executive shall not, at any time (either
during or after the term of Executive's employment), disclose any
Confidential Information to any person or entity (except other employees of
the Company who have a need to know the information in connection with the
performance of their employment duties), or copy, reproduce, modify,
decompile or reverse engineer any Confidential Information, or remove any
Confidential Information from the Company's premises, without the prior
written consent of the President of the Company, or permit any other person
to do so. Executive shall take reasonable precautions to protect the
physical security of all documents and other material containing
Confidential Information (regardless of the medium on which the
Confidential Information is stored). This Agreement applies to all
Confidential Information, whether now known or later to become known to
Executive.
(c) Upon the termination of Executive's employment with the Company
for any reason, and upon request of the Company at any other time,
Executive shall promptly surrender and deliver to the Company all documents
and other written material of any nature containing or pertaining to any
Confidential Information and shall not retain any such document or other
material. Within five days of any such request, Executive shall certify to
the Company in writing that all such materials have been returned.
(d) As used in this Agreement, the term "Confidential Information"
shall mean any information or material known to or used by or for the
Company (whether or not owned or developed by the Company and whether or
not developed by Executive) that is not generally known to persons in the
electrical contracting business. Confidential information includes, but is
not limited to, the following: all trade secrets of the Company; all
information that the Company has marked as confidential or has otherwise
described to Executive (either in writing or orally) as confidential; all
nonpublic information concerning the Company's products, services,
prospective products or services, research, product designs, prices,
discounts, costs, marketing plans, marketing techniques, market studies,
test data, customers, customer lists and records, suppliers and contracts;
all Company business records and plans; all Company personnel files; all
financial information of or concerning the Company; all information
relating to operating system software, application software, software and
system methodology, hardware platforms, technical information, inventions,
computer programs and listings, source codes, object codes, copyrights and
other intellectual property; all technical specifications; any proprietary
information belonging to the Company; all computer hardware or software
manual; all training or instruction manuals; and all data and all computer
system passwords and user codes.
9. No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Further, Executive agrees to indemnify the Company for any claim,
including, but not limited to, reasonable attorneys' fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against the Company based upon or arising out of any
non-competition agreement, invention or secrecy agreement between Executive and
such third party which was in existence as of the date of this Agreement.
10. Assignment; Binding Effect. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement.
Subject to the preceding two sentences and the express provisions of paragraph
12 below, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
11. Release. Notwithstanding anything in this Agreement to the contrary,
Executive shall not be entitled to receive any payments pursuant to this
Agreement unless Executive has executed (and not revoked) a general release of
all claims Executive may have against the Company and its affiliates in a form
of such release reasonably acceptable to the Company.
12. Complete Agreement. Executive has no oral representations,
understandings or agreements with the Company, IES or any of their officers,
directors or representatives covering the same subject matter as this Agreement.
This written Agreement is the final, complete and exclusive statement and
expression of the agreement between the Company, IES and Executive and of all
the terms of this Agreement, and it cannot be varied,
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contradicted or supplemented by evidence of any prior or contemporaneous oral or
written agreements. This written Agreement may not be later modified except by a
further writing signed by a duly authorized officer of the Company and
Executive, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term. Without limiting the generality
of the foregoing, either party's failure to insist on strict compliance with
this Agreement shall not be deemed a waiver thereof.
13. Notice. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Law Department
Integrated Electrical Services, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
To Executive: X.X. Xxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Notice shall be deemed given and effective on the earlier of three days after
the deposit in the U.S. mail of a writing addressed as above and sent first
class mail, certified, return receipt requested, or when actually received.
Either party may change the address for notice by notifying the other party of
such change in accordance with this paragraph 13.
14. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
15. Dispute Resolutions. Except with respect to injunctive relief as
provided in paragraph 3(b), neither party shall institute a proceeding in any
court or administrative agency to resolve a dispute between the parties before
that party has sought to resolve the dispute through direct negotiation with the
other party. If the dispute is not resolved within two weeks after a demand for
direct negotiation, the parties shall attempt to resolve the dispute through
mediation. If the parties do not promptly agree on a mediator, the parties shall
request the Association of Attorney Mediators in Xxxxxx County, Texas to appoint
a mediator certified by the Supreme Court of Texas. If the mediator is unable to
facilitate a settlement of the dispute within a reasonable period of time, as
determined by the mediator, the mediator shall issue a written statement to the
parties to that effect and any unresolved dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in Houston, Texas, in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement, and interest thereon in the event the arbitrators determine that
Executive was terminated without disability or Cause, as defined in paragraphs
4(b) and 4(c), respectively, or that the Company has otherwise materially
breached this Agreement. A decision by a majority of the arbitration panel shall
be final and binding. Judgment may be entered on the arbitrators' award in any
court having jurisdiction. The costs and expenses, including reasonable
attorneys' fees, of the prevailing party in any dispute arising under this
Agreement will be promptly paid by the other party.
16. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Texas without regard to its conflicts of
law provisions.
17. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
18. Change in Control. If, on or within two years following the effective
date of a Change in
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Control (as defined below), the Company terminates Executive's employment other
than for Cause or Executive terminates his employment for Good Reason, or if
Executive's employment with the Company is terminated by the Company within
three months before the effective date of a Change in Control and it is
reasonably demonstrated that such termination (i) was at the request of a third
party that has taken steps reasonably calculated to effect a Change in Control,
or (ii) otherwise arose in connection with or anticipation of a Change in
Control, then Executive shall receive from Company, in a lump sum payment due on
the effective date of termination, in lieu of any other payments pursuant to
this Agreement, (i) the equivalent of three years' base salary at the rate then
in effect, plus three times annual bonus at the then current percentage
applicable to Executive determined at 100% payout, and (ii) three years'
coverage under the Company's medical benefit plan on a tax-neutral basis.
(a) A "Change in Control" shall be deemed to have occurred if:
(i) any person, entity or group (as such terms are used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Act"), other than the IES Companies or an employee
benefit plan of the IES Companies, acquires, directly or indirectly,
the beneficial ownership (as defined in Section 13(d) of the Act) of
any voting security of the Company and immediately after such
acquisition such person is, directly or indirectly, the beneficial
owner of voting securities representing 20% or more of the total
voting power of all of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors;
(ii) upon the first purchase of the Company's common stock
pursuant to a tender or exchange offer (other than a tender or
exchange offer made by the Company);
(iii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization or reorganization of the Company, or a
reverse stock split of outstanding voting securities, or consummation
of any such transaction if stockholder approval is not obtained, other
than any such transaction which would result in at least 75% of the
total voting power represented by the voting securities of the
surviving entity outstanding immediately after such transaction being
beneficially owned by the holders of all of the outstanding voting
securities of the Company immediately prior to the transactions with
the voting power of each such continuing holder relative to other such
continuing holders not substantially altered in the transaction;
(iv) the stockholders of the Company shall approve a plan of
complete liquidation or dissolution of the Company or an agreement for
the sale or disposition by the Company of all or substantially all of
the Company's assets; or
(v) if, at any time during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless
the election or nomination for the election by the Company's
stockholders of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
(b) Notwithstanding anything in this Agreement to the contrary, a
termination pursuant to this paragraph shall operate to automatically waive
in full the non-competition restrictions imposed on Executive pursuant to
paragraph 3(a).
(c) If it shall be finally determined that any payment made or benefit
provided to Executive in connection with a Change in Control of the
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Company, whether or not made or provided pursuant to this Agreement, is
subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended, or any successor thereto, the Company shall pay
Executive an amount of cash (the "Additional Amount") such that the net
amount received by Executive after paying all applicable taxes on such
Additional Amount shall be equal to the amount that Executive would have
received if Section 4999 were not applicable."
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Agreement effective for all purposes as of the date set forth above.
INTEGRATED ELECTRICAL SERVICES, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
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EXECUTIVE
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X. X. Xxxxx
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