Exhibit 10(h)
Amendment dated as of May 4, 1999 to Agreement dated as of June 22, 1998 by
and between EMCOR Group, Inc., a Delaware corporation (the "Company"), and XXXXX
X. XXXXXXXX (the "Executive").
WHEREAS, the Company and the Executive are parties to a certain agreement
dated as of June 22, 1998 (the "Continuity Agreement") providing for employment
and severance benefits under certain circumstances; and
WHEREAS, the Company and the Executive desire to amend the Continuity
Agreement as hereafter provided. NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive hereby agree as follows:
1. Paragraph (i) of Section 1 of the Continuity Agreement setting forth one of
the events of a "Change of Control" (as defined in the Continuity
Agreement) is hereby amended to read as follows:
"(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; or"
2. The first and second paragraphs of subsection 3(a) of the Continuity
Agreement are hereby amended to read as follows:
"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 or (ii) by Executive for Good Reason or (B) prior to a
Change of Control, as a result of an Anticipatory Termination.
Notwithstanding the foregoing, 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 a termination which would
otherwise give rise to severance benefits or subsequent to an event
constituting Good Reason. For purposes of this Agreement:"
3. Clause (v) of subsection 3(c) of the Continuity Agreement is hereby amended
to read as follows: "(v) failure to provide for and obtain the assumption
of this Agreement by any successor entity;"
4. The last sentence of subsection 3(e) of the Continuity Agreement is hereby
amended to read as follows:
"During any period in which a dispute between the Company and the
Executive is pending, the Executive shall continue to receive his
salary (including any Bonus) and benefits as if his employment with
the Company had continued through the date of the final determination
thereof (i.e. after decision following any trial or arbitration
proceeding and after all appeals therefrom or after the time for any
appeals therefrom has run) 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."
5.
(a) The second sentence of subsection 4(a) of the Continuity Agreement is
hereby amended to read as follows:
"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) an amount equal to Executive's annual 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, (C) a
pro-rata portion of the Bonus (calculated through the date of
termination), and (D) 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) Subsection 4(a) of the Continuity Agreement is hereby further amended
by adding the following sentence at the end of such subsection:
"If payment of the amounts referred to herein is not made by the
Company to the Executive within such 10 day period, the Company
shall pay the Executive interest thereon at the rate of 10% per
annum."
6. Subsection 5(a) of the Continuity Agreement is hereby amended by adding the
following sentence at the end of such subsection:
"If payments required pursuant to this subsection to be made by the
Company to the Executive are not made within such five day period, the
Company shall pay the Executive interest thereon at the rate of 10%
per annum."
7. Subsection 5(e) of the Continuity Agreement is hereby amended by adding the
following sentence at the end of such subsection:
"If such amounts are not reimbursed to the Executive by the Company
within such five day period, the Company shall pay the Executive
interest thereon at the rate of 10% per annum."
8. Section 10 of the Continuity Agreement is hereby amended to read in its
entirety as follows: "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, arbitration 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. Such legal fees shall be paid
or reimbursed by the Company to the Executive from time to time within five
business days following receipt by the Company of copies of bills for such
fees and if the Company fails to make such payment within such five day
period, the Company shall pay the Executive interest thereon at the rate of
10% per annum."
9. Section 14 of the Continuity Agreement is hereby deleted in its entirety.
10. Section 15 of the Continuity Agreement is hereby renumbered Section 14 and
Section 16 of the Continuity Agreement is hereby renumbered Section 15.
11. Section 16 of the Continuity Agreement, which is hereby renumbered Section
15, is hereby amended to read in its entirety as follows:
"Except as otherwise provided in an Amended and Restated Employment
Agreement dated as of May 4, 1999 between Executive and the Company,
as may be amended from time to time hereafter, 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 understandings with respect to the
matters provided for herein."
12. Except as specifically amended hereby, all of the terms, conditions and
provisions of the Continuity Agreement shall stand and remain unchanged and
in full force and effect. No reference to this Amendment to the Continuity
Agreement need be made in any instrument or document at any time referring
to the Continuity Agreement, and reference to the Continuity Agreement in
any of such shall be deemed to be a reference to the Continuity Agreement
as amended hereby.
IN WITNESS WHEREOF, the undersigned have executed this Amendment Agreement as of
the day and year fist above written.
EMCOR GROUP, INC.
BY:
___________________________________
Xxxxx X. XxxXxxxx, Executive
