1
Exhibit(c)(3)
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between MYR Group, Inc. (the "Company") and Xxxxxxx X.
Xxxxxxxx (the "Employee"), dated as of the 21st day of December, 1999.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company. The Board believes it is imperative to diminish the distraction
of the Employee by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Employee's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Employee with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Employee will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives the Board has caused the Company to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Term of Agreement. This Agreement shall terminate if a Change of
Control Date (as hereinafter defined) does not occur on or before December 31,
2001.
2. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be defined as the occurrence of any of the following events:
(a) There is a report filed on Schedule 13D (or any successor
schedule, form or report) as promulgated pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as generally in effect on the date
hereof, disclosing that any person (as the term "person" is used in Section
13(d)(3) of the Exchange Act), other than Xxxxxxx X. Xxxxxxx III, has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 20% or
more of the issued and outstanding shares of voting securities of the Company;
or
(b) The acquisition of 20% or more of the issued and
outstanding shares of voting securities of the Company by any person which would
otherwise require the filing of a report as described in (a) above.
3. Change of Control Date. For purposes of this Agreement, the "Change
of Control Date" shall mean the first date during the term of this Agreement on
which a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's employment
with the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Employee that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or in anticipation of a Change of Control, then for all
purposes of this Agreement the "Change of
2
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
4. Termination of Employment
(a) Good Cause. For purposes of this Agreement, "Good Cause"
shall mean (i) the Employee's commission of a felony, (ii) the Employee's
material breach of any of his obligations or duties, including the Employee's
willful failure to substantially perform his duties other than as a result of
his incapacity due to illness or injury, or (iii) the Employee's commission of a
willful act, such as embezzlement, against the Company intended to enrich the
Employee at the expense of the Company. No termination for Good Cause may be
effected under clause (ii) of the preceding sentence unless (a) the Company
shall have given written notice to the Employee specifying with particularity
the basis for the Company's decision to terminate the Employee's employment, and
(b) the Employee shall have failed to cease or correct the performance (or
nonperformance) which forms the basis for the Company's decision within 30 days
following the date of the Company's written notice.
(b) Good Reason. For purposes of this Agreement, "Good Reason"
shall mean any of the following which occurs without the written consent of the
Employee:
(i) Any significant change in the nature of Employee's
principal duties or any significant diminution in the
Employee's status or responsibilities;
(ii) Any decrease in the Employee's salary or cash
incentive opportunity below the level the Employee
was earning at the time of a Change of Control;
(iii) The Company's failure to obtain the agreement of a
successor entity to assume the obligations under this
Agreement; or
(iv) The Company's requiring the Employee to be based in
any location which would materially increase the
Employee's commuting time.
(c) Disability. For purposes of this Agreement, "Disability"
shall mean the absence of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive days as a result of incapacity
due to mental or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and reasonably acceptable
to the Executive or the Executive's legal representative.
5. Notice of Termination. Any termination by the Company for Good
Cause, or by the Employee for Good Reason, shall be communicated by a Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the
2
3
Employee or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Good Cause shall
not waive any right of the Employee or the Company, respectively, hereunder or
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
6. Date of Termination. For purposes of this Agreement, "Date of
Termination" means (a) if the Employee's employment is terminated by the Company
for Good Cause, or by the Employee for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be,
(b) if the Employee's employment is terminated by the Company other than for
Good Cause, death or Disability, the date on which the Company notifies the
Employee of such termination and (c) if the Employee's employment is terminated
by reason of death or Disability, the date of death of the Employee or the date
of the determination that the Employee's Disability is determined to be total
and permanent, as the case may be.
7. Obligations of the Company upon Termination.
(a) Termination by Company Not for Good Cause; Resignation by
Employee for Good Reason. If, on or within two years after a Change of Control
Date , the Company shall terminate the Employee's employment other than for Good
Cause, Disability or death, or the Employee shall terminate employment for Good
Reason within two years after the Change of Control Date, the Employee will
receive, in addition to all benefits to which the Employee is legally entitled:
(i) Acceleration of all unvested MYR stock option grants
and MYR restricted stock awards or, at the sole
discretion of MYR's Board of Directors, their cash
equivalent;
(ii) Any earned but unpaid bonus for the year preceding
the year in which termination occurs;
(iii) A pro-rated target bonus for the worked portion of
the year in which termination occurs;
(iv) Two years of current salary (not lower than the
Employee's salary on the Change of Control Date,
increased by the supplemental payments and relocation
payments described in Exhibit A due during the
two-year period following the employment termination)
and two years of target bonus;
(v) Two years of post-termination medical coverage on
the same basis as if the Employee was a current
employee;
(vi) Reimbursement of legal expenses incurred, in
accordance with Section 9, to enforce this
Agreement;
(vii) The benefits of the "Put Option" as described in
that certain letter agreement dated June 30, 1999
between Employee and the Company; and
3
4
(viii) In the event that the foregoing provisions of this
Section 7 result in the receipt by the Employee of a
parachute payment (as defined in Section 280G of the
Internal Revenue Code of 1986, as amended), then the
Company shall make an additional payment to the
Employee in an amount in cash such that the amount
of the after-tax proceeds of the Employee from the
payments provided for in this Agreement, taking into
account federal and state income and excise taxes,
is equal to the amount of the after-tax proceeds the
Employee would have received from the payments
provided for in this Agreement had such payments not
resulted in the receipt by the Employee of a
parachute payment. The Employee agrees to give the
Company prompt written notice of any claim by the
Internal Revenue Service that any payments made
pursuant to this Agreement result in the receipt by
the Employee of a parachute payment. In such event
the Company shall have the right to assume and
control the defense of an such claim with counsel of
its own selection. The Employee agrees to cooperate
with the Company in connection with any defense of
such claim.
If the Employee is terminated from employment more than two years but less than
four years after a Change of Control Date for other than Good Cause, Disability
or death, the Employee will receive items (i), (ii), (iii), (vi), (vii) and
(viii) above, plus one year of current salary (not lower than the Employee's
salary on the Change of Control Date, increased by the supplemental payments and
relocation payments described in Exhibit A due during the one-year period
following the employment termination), one year of target bonus and one year of
medical coverage.
In addition, for a period of 90 days following the second anniversary of a
Change of Control Date, the Employee may elect to terminate employment at the
Employee's discretion provided that the Employee offers to continue employment
at the request of the Company for a period of up to six months. In the event of
such termination at the discretion of the Employee, the Employee shall receive
items (i) through (vii) above. The Employee will also be entitled to receive all
other benefits to which the Employee is entitled under the Company's various
policies or plans or to which the Employee is otherwise legally entitled. Solely
for purposes of the computation of benefits under this Agreement, payments made
by the Company as the result of such a termination at the discretion of the
Employee that are required to be taken into account with respect to the Employee
under Section 280G(b)(2)(A)(ii) of the Code shall not, in the aggregate, exceed
2.99 times the Employee's "base amount" as that term is defined in Section
280G(b)(3) of the Code. If the limitation contained in the immediately preceding
sentence applies, any reduction in payments will in no event affect the
computation of payments hereunder which do not constitute "excess parachute
payments" within the meaning of Section 280G(b) of the Code.
(b) Death. If the Employee dies during the term of this
Agreement prior to the Change in Control Date, this Agreement shall terminate
without further obligation of the Company to the Employee or his estate other
than the obligation to pay any compensation or benefits that have been earned
but not paid on the Date of Termination, and any post-
4
5
termination, life insurance or death benefits that are provided under the
Company's normal benefit plans and policies.
(c) Disability. If the Employee's employment shall be
terminated during the term of this Agreement prior to the Change in Control Date
by reason of the Employee's Disability, this Agreement shall terminate without
further obligation of the Company to the Employee other than the obligation to
pay any compensation or benefits that have been earned but not paid on the Date
of Termination, and any post-termination benefits or disability benefits that
are provided under the Company's normal benefit plans and policies.
(d) Good Cause; Other than for Good Reason. If, whether before
or after a Change of Control Date, the Employee's employment shall be terminated
for Good Cause, or if the Employee shall resign other than for Good Reason, this
Agreement shall terminate without further obligation to the Employee other than
the obligation to pay any compensation or benefits that have been earned but not
paid on the Date of Termination, and any post-termination benefits that are
provided under the Company's normal benefit plans and policies.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Employee may
qualify, nor, subject to Section 12(g), shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
the Company. Amounts which are vested benefits or which the Employee is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
9. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. In no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Employee obtains other employment. In
the event the Employee incurs legal fees and expenses in seeking to obtain any
benefit under this Agreement and it is ultimately determined by a court of
competent jurisdiction that the Employee is entitled to receive all or any part
of such benefit, then the Company shall pay to the Employee the reasonable legal
fees and expenses so incurred by the Employee.
10. Confidential Information. The Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, and their respective businesses,
which shall have been obtained by the Employee during the Employee's employment
by the Company and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). After termination of the Employee's employment with the Company, the
Employee shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or
5
6
data to anyone other than the Company and those designated by it. In no event
shall an asserted violation of the provisions of this Section 10 constitute a
basis for deferring or withholding any amounts otherwise payable to the Employee
under this Agreement.
11. Successors.
(a) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Employee's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxxxx X. Xxxxxxxx
00 X. Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
If to the Company: MYR Group, Inc.
Three Continental Towers
0000 X. Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
6
7
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement represents the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior or contemporaneous oral or written negotiations, understandings and
agreements between the parties hereto.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(f) The Employee's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Employee or the Company may have hereunder, including, without
limitation, the right of the Employee to terminate employment for Good Reason
pursuant to Section 4(b) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
(g) The Employee and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the Employee
and the Company, the employment of the Employee by the Company is "at will" and,
prior to the Change of Control Date, the Employee's employment may be terminated
by either the Employee or the Company at any time prior to the Change of Control
Date, in which case the Employee shall have no further rights under this
Agreement. From and after the Change of Control Date this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
7
8
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
----------------------------------------
Xxxxxxx X. Xxxxxxxx
MYR GROUP, INC.
By:
-----------------------------------------
Its:
----------------------------------------
8
9
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between MYR Group, Inc. (the "Company") and Xxxxx X.
Xxxxxx (the "Employee"), dated as of the 21st day of December, 1999.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company. The Board believes it is imperative to diminish the distraction
of the Employee by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Employee's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Employee with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Employee will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives the Board has caused the Company to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Term of Agreement. This Agreement shall terminate if a Change of
Control Date (as hereinafter defined) does not occur on or before December 31,
2001.
2. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be defined as the occurrence of any of the following events:
(a) There is a report filed on Schedule 13D (or any successor
schedule, form or report) as promulgated pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as generally in effect on the date
hereof, disclosing that any person (as the term "person" is used in Section
13(d)(3) of the Exchange Act), other than Xxxxxxx X. Xxxxxxx III, has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 20% or
more of the issued and outstanding shares of voting securities of the Company;
or
(b) The acquisition of 20% or more of the issued and
outstanding shares of voting securities of the Company by any person which would
otherwise require the filing of a report as described in (a) above.
3. Change of Control Date. For purposes of this Agreement, the "Change
of Control Date" shall mean the first date during the term of this Agreement on
which a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's employment
with the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Employee that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or in anticipation of a Change of Control, then for all
purposes of this Agreement the "Change of
10
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
4. Termination of Employment
(a) Good Cause. For purposes of this Agreement, "Good Cause" shall mean
(i) the Employee's commission of a felony, (ii) the Employee's material breach
of any of his obligations or duties, including the Employee's willful failure to
substantially perform his duties other than as a result of his incapacity due to
illness or injury, or (iii) the Employee's commission of a willful act, such as
embezzlement, against the Company intended to enrich the Employee at the expense
of the Company. No termination for Good Cause may be effected under clause (ii)
of the preceding sentence unless (a) the Company shall have given written notice
to the Employee specifying with particularity the basis for the Company's
decision to terminate the Employee's employment, and (b) the Employee shall have
failed to cease or correct the performance (or nonperformance) which forms the
basis for the Company's decision within 30 days following the date of the
Company's written notice.
(b) Good Reason. For purposes of this Agreement, "Good Reason" shall
mean any of the following which occurs without the written consent of the
Employee:
(i) Any significant change in the nature of Employee's
principal duties or any significant diminution in the
Employee's status or responsibilities;
(ii) Any decrease in the Employee's salary or cash
incentive opportunity below the level the Employee
was earning at the time of a Change of Control;
(iii) The Company's failure to obtain the agreement of a
successor entity to assume the obligations under this
Agreement; or
(iv) The Company's requiring the Employee to be based in
any location which would materially increase the
Employee's commuting time.
(c) Disability. For purposes of this Agreement, "Disability" shall mean
the absence of the Executive from the Executive's duties with the Company on a
full-time basis for 180 consecutive days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and reasonably acceptable to the
Executive or the Executive's legal representative.
5. Notice of Termination. Any termination by the Company for Good
Cause, or by the Employee for Good Reason, shall be communicated by a Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the
2
11
Employee or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Good Cause shall
not waive any right of the Employee or the Company, respectively, hereunder or
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
6. Date of Termination. For purposes of this Agreement, "Date of
Termination" means (a) if the Employee's employment is terminated by the Company
for Good Cause, or by the Employee for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be,
(b) if the Employee's employment is terminated by the Company other than for
Good Cause, death or Disability, the date on which the Company notifies the
Employee of such termination and (c) if the Employee's employment is terminated
by reason of death or Disability, the date of death of the Employee or the date
of the determination that the Employee's Disability is determined to be total
and permanent, as the case may be.
7. Obligations of the Company upon Termination.
(a) Termination by Company Not for Good Cause; Resignation by
Employee for Good Reason. If, on or within two years after a Change of Control
Date , the Company shall terminate the Employee's employment other than for Good
Cause, Disability or death, or the Employee shall terminate employment for Good
Reason within two years after the Change of Control Date, the Employee will
receive, in addition to all benefits to which the Employee is legally entitled:
(i) Acceleration of all unvested MYR stock option grants
and MYR restricted stock awards or, at the sole
discretion of MYR's Board of Directors, their cash
equivalent;
(ii) Any earned but unpaid bonus for the year preceding
the year in which termination occurs;
(iii) A pro-rated target bonus for the worked portion of
the year in which termination occurs;
(iv) Two years of current salary (not lower than the
Employee's salary on the Change of Control Date) and
two years of target bonus;
(v) Two years of post-termination medical coverage on the
same basis as if the Employee was a current employee;
(vi) Reimbursement of legal expenses incurred, in
accordance with Section 9, to enforce this Agreement;
and
(vii) In the event that the foregoing provisions of this
Section 7 result in the receipt by the Employee of a
parachute payment (as defined in Section 280G of the
Internal Revenue Code of 1986, as amended), then the
Company shall make an additional payment to the
Employee in an amount
3
12
in cash such that the amount of the after-tax
proceeds of the Employee from the payments provided
for in this Agreement, taking into account federal
and state income and excise taxes, is equal to the
amount of the after-tax proceeds the Employee would
have received from the payments provided for in this
Agreement had such payments not resulted in the
receipt by the Employee of a parachute payment. The
Employee agrees to give the Company prompt written
notice of any claim by the Internal Revenue Service
that any payments made pursuant to this Agreement
result in the receipt by the Employee of a parachute
payment. In such event the Company shall have the
right to assume and control the defense of an such
claim with counsel of its own selection. The Employee
agrees to cooperate with the Company in connection
with any defense of such claim.
If the Employee is terminated from employment more than two years but less than
four years after a Change of Control Date for other than Good Cause, Disability
or death, the Employee will receive items (i), (ii), (iii), (vi) and (vii)
above, plus one year of current salary (not less than the Employee's salary on
the Change of Control Date), one year of target bonus and one year of medical
coverage.
In addition, for a period of 90 days following the second anniversary of a
Change of Control Date, the Employee may elect to terminate employment at the
Employee's discretion provided that the Employee offers to continue employment
at the request of the Company for a period of up to six months. In the event of
such termination at the discretion of the Employee, the Employee shall receive
items (i) through (vi) above. The Employee will also be entitled to receive all
other benefits to which the Employee is entitled under the Company's various
policies or plans or to which the Employee is otherwise legally entitled. Solely
for purposes of the computation of benefits under this Agreement, payments made
by the Company as the result of such a termination at the discretion of the
Employee that are required to be taken into account with respect to the Employee
under Section 280G(b)(2)(A)(ii) of the Code shall not, in the aggregate, exceed
2.99 times the Employee's "base amount" as that term is defined in Section
280G(b)(3) of the Code. If the limitation contained in the immediately preceding
sentence applies, any reduction in payments will in no event affect the
computation of payments hereunder which do not constitute "excess parachute
payments" within the meaning of Section 280G(b) of the Code.
(b) Death. If the Employee dies during the term of this
Agreement prior to the Change in Control Date, this Agreement shall terminate
without further obligation of the Company to the Employee or his estate other
than the obligation to pay any compensation or benefits that have been earned
but not paid on the Date of Termination, and any post-termination, life
insurance or death benefits that are provided under the Company's normal benefit
plans and policies.
(c) Disability. If the Employee's employment shall be
terminated during the term of this Agreement prior to the Change in Control Date
by reason of the Employee's Disability, this Agreement shall terminate without
further obligation of the Company to the Employee other than the obligation to
pay any compensation or benefits that have been earned
4
13
but not paid on the Date of Termination, and any post-termination benefits or
disability benefits that are provided under the Company's normal benefit plans
and policies.
(d) Good Cause; Other than for Good Reason. If, whether before
or after a Change of Control Date, the Employee's employment shall be terminated
for Good Cause, or if the Employee shall resign other than for Good Reason, this
Agreement shall terminate without further obligation to the Employee other than
the obligation to pay any compensation or benefits that have been earned but not
paid on the Date of Termination, and any post-termination benefits that are
provided under the Company's normal benefit plans and policies.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Employee may
qualify, nor, subject to Section 12(g), shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
the Company. Amounts which are vested benefits or which the Employee is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
9. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. In no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Employee obtains other employment. In
the event the Employee incurs legal fees and expenses in seeking to obtain any
benefit under this Agreement and it is ultimately determined by a court of
competent jurisdiction that the Employee is entitled to receive all or any part
of such benefit, then the Company shall pay to the Employee the reasonable legal
fees and expenses so incurred by the Employee.
10. Confidential Information. The Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, and their respective businesses,
which shall have been obtained by the Employee during the Employee's employment
by the Company and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). After termination of the Employee's employment with the Company, the
Employee shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Employee under this Agreement.
5
14
11. Successors.
(a) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Employee's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxx X. Xxxxxx
000 X. Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Company: MYR Group, Inc.
Three Continental Towers
0000 X. Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
6
15
(d) This Agreement represents the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior or
contemporaneous oral or written negotiations, understandings and agreements
between the parties hereto.
(e) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(f) The Employee's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Employee or the Company may have hereunder, including, without
limitation, the right of the Employee to terminate employment for Good Reason
pursuant to Section 4(b) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
(g) The Employee and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Employee and
the Company, the employment of the Employee by the Company is "at will" and,
prior to the Change of Control Date, the Employee's employment may be terminated
by either the Employee or the Company at any time prior to the Change of Control
Date, in which case the Employee shall have no further rights under this
Agreement. From and after the Change of Control Date this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
----------------------------------------
Xxxxx X. Xxxxxx
MYR GROUP, INC.
By:
----------------------------------------
Its:
---------------------------------------
7
16
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between MYR Group, Inc. (the "Company") and Xxxxxxx X.
Xxxxx (the "Employee"), dated as of the 21st day of December, 1999.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company. The Board believes it is imperative to diminish the distraction
of the Employee by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Employee's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Employee with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Employee will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives the Board has caused the Company to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Term of Agreement. This Agreement shall terminate if a Change of
Control Date (as hereinafter defined) does not occur on or before December 31,
2001.
2. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be defined as the occurrence of any of the following events:
(a) There is a report filed on Schedule 13D (or any successor
schedule, form or report) as promulgated pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as generally in effect on the date
hereof, disclosing that any person (as the term "person" is used in Section
13(d)(3) of the Exchange Act), other than Xxxxxxx X. Xxxxxxx III, has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 20% or
more of the issued and outstanding shares of voting securities of the Company;
or
(b) The acquisition of 20% or more of the issued and
outstanding shares of voting securities of the Company by any person which would
otherwise require the filing of a report as described in (a) above.
3. Change of Control Date. For purposes of this Agreement, the "Change
of Control Date" shall mean the first date during the term of this Agreement on
which a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's employment
with the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Employee that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or in anticipation of a Change of Control, then for all
purposes of this Agreement the "Change of
17
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
4. Termination of Employment
(a) Good Cause. For purposes of this Agreement, "Good Cause"
shall mean (i) the Employee's commission of a felony, (ii) the Employee's
material breach of any of his obligations or duties, including the Employee's
willful failure to substantially perform his duties other than as a result of
his incapacity due to illness or injury, or (iii) the Employee's commission of a
willful act, such as embezzlement, against the Company intended to enrich the
Employee at the expense of the Company. No termination for Good Cause may be
effected under clause (ii) of the preceding sentence unless (a) the Company
shall have given written notice to the Employee specifying with particularity
the basis for the Company's decision to terminate the Employee's employment, and
(b) the Employee shall have failed to cease or correct the performance (or
nonperformance) which forms the basis for the Company's decision within 30 days
following the date of the Company's written notice.
(b) Good Reason. For purposes of this Agreement, "Good Reason"
shall mean any of the following which occurs without the written consent of the
Employee:
(i) Any significant change in the nature of Employee's
principal duties or any significant diminution in the
Employee's status or responsibilities;
(ii) Any decrease in the Employee's salary or cash
incentive opportunity below the level the Employee
was earning at the time of a Change of Control;
(iii) The Company's failure to obtain the agreement of a
successor entity to assume the obligations under this
Agreement; or
(iv) The Company's requiring the Employee to be based in
any location which would materially increase the
Employee's commuting time.
(c) Disability. For purposes of this Agreement, "Disability"
shall mean the absence of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive days as a result of incapacity
due to mental or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and reasonably acceptable
to the Executive or the Executive's legal representative.
5. Notice of Termination. Any termination by the Company for Good
Cause, or by the Employee for Good Reason, shall be communicated by a Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the
2
18
Employee or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Good Cause shall
not waive any right of the Employee or the Company, respectively, hereunder or
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
6. Date of Termination. For purposes of this Agreement, "Date of
Termination" means (a) if the Employee's employment is terminated by the Company
for Good Cause, or by the Employee for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be,
(b) if the Employee's employment is terminated by the Company other than for
Good Cause, death or Disability, the date on which the Company notifies the
Employee of such termination and (c) if the Employee's employment is terminated
by reason of death or Disability, the date of death of the Employee or the date
of the determination that the Employee's Disability is determined to be total
and permanent, as the case may be.
7. Obligations of the Company upon Termination.
(a) Termination by Company Not for Good Cause; Resignation by
Employee for Good Reason. If, on or within five years after a Change of Control
Date, the Company shall terminate the Employee's employment other than for Good
Cause, Disability or death, or the Employee shall terminate employment for Good
Reason within five years after the Change of Control Date, the Employee will
receive, in addition to all benefits to which the Employee is legally entitled:
(i) Acceleration of all unvested MYR stock option grants
and MYR restricted stock awards or, at the sole
discretion of MYR's Board of Directors, their cash
equivalent;
(ii) Any earned but unpaid bonus for the year preceding
the year in which termination occurs;
(iii) A pro-rated target bonus for the worked portion of
the year in which termination occurs;
(iv) One year of current salary (not lower than the
Employee's salary on the Change of Control Date) and
one year of target bonus;
(v) One year of post-termination medical coverage on the
same basis as if the Employee was a current employee;
(vi) Reimbursement of legal expenses incurred, in
accordance with Section 9, to enforce this Agreement;
and
In addition, for a period of 90 days following the thirtieth month anniversary
of a Change of Control Date, the Employee may elect to terminate employment at
the Employee's discretion provided that the Employee offers to continue
employment at the request of the Company for a period of up to six months. In
the event of such termination at the discretion of the Employee,
3
19
the Employee shall receive items (i) through (vi) above. The Employee will also
be entitled to receive all other benefits to which the Employee is entitled
under the Company's various policies or plans or to which the Employee is
otherwise legally entitled.
For purposes of the computation of benefits under this Agreement, payments made
by the Company as the result of such a termination that are required to be taken
into account with respect to the Employee under Section 280G(b)(2)(A)(ii) of the
Code shall not, in the aggregate, exceed 2.99 times the Employee's "base amount"
as that term is defined in Section 280G(b)(3) of the Code. If the limitation
contained in the immediately preceding sentence applies, any reduction in
payments will in no event affect the computation of payments hereunder which do
not constitute "excess parachute payments" within the meaning of Section 280G(b)
of the Code.
(b) Death. If the Employee dies during the term of this
Agreement prior to the Change in Control Date, this Agreement shall terminate
without further obligation of the Company to the Employee or his estate other
than the obligation to pay any compensation or benefits that have been earned
but not paid on the Date of Termination, and any post-termination, life
insurance or death benefits that are provided under the Company's normal benefit
plans and policies.
(c) Disability. If the Employee's employment shall be
terminated during the term of this Agreement prior to the Change in Control Date
by reason of the Employee's Disability, this Agreement shall terminate without
further obligation of the Company to the Employee other than the obligation to
pay any compensation or benefits that have been earned but not paid on the Date
of Termination, and any post-termination benefits or disability benefits that
are provided under the Company's normal benefit plans and policies.
(d) Good Cause; Other than for Good Reason. If, whether before
or after a Change of Control Date, the Employee's employment shall be terminated
for Good Cause, or if the Employee shall resign other than for Good Reason, this
Agreement shall terminate without further obligation to the Employee other than
the obligation to pay any compensation or benefits that have been earned but not
paid on the Date of Termination, and any post-termination benefits that are
provided under the Company's normal benefit plans and policies.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Employee may
qualify, nor, subject to Section 12(g), shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
the Company. Amounts which are vested benefits or which the Employee is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
9. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. In no event shall the Employee be
4
20
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Employee under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not the Employee
obtains other employment. In the event the Employee incurs legal fees and
expenses in seeking to obtain any benefit under this Agreement and it is
ultimately determined by a court of competent jurisdiction that the Employee is
entitled to receive all or any part of such benefit, then the Company shall pay
to the Employee the reasonable legal fees and expenses so incurred by the
Employee.
10. Confidential Information. The Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, and their respective businesses,
which shall have been obtained by the Employee during the Employee's employment
by the Company and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). After termination of the Employee's employment with the Company, the
Employee shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Employee under this Agreement.
11. Successors.
(a) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Employee's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
5
21
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxxxx X. Xxxxx
0000X Xxx Xxxx Xx.
Xxxx Xxxxxxxxxx Xxxxxx, XX 00000
If to the Company: MYR Group, Inc.
Three Continental Towers
0000 X. Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement represents the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior or contemporaneous oral or written negotiations, understandings and
agreements between the parties hereto.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(f) The Employee's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Employee or the Company may have hereunder, including, without
limitation, the right of the Employee to terminate employment for Good Reason
pursuant to Section 4(b) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
(g) The Employee and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the Employee
and the Company, the employment of the Employee by the Company is "at will" and,
prior to the Change of Control Date, the Employee's employment may be terminated
by either the Employee or the Company at any time prior to the Change of Control
Date, in which case the Employee shall have no further rights under this
Agreement. From and after the Change of Control Date this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
6
22
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
----------------------------------------
Xxxxxxx X. Xxxxx
MYR GROUP, INC.
By:
------------------------------------
Its:
------------------------------------
7
23
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between MYR Group, Inc. (the "Company") and Xxxxxxx X.
Xxxxxxxxx (the "Employee"), dated as of the 21st day of December, 1999.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company. The Board believes it is imperative to diminish the distraction
of the Employee by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the Employee's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Employee with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Employee will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives the Board has caused the Company to
enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Term of Agreement. This Agreement shall terminate if a Change of
Control Date (as hereinafter defined) does not occur on or before December 31,
2001.
2. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be defined as the occurrence of any of the following events:
(a) There is a report filed on Schedule 13D (or any successor
schedule, form or report) as promulgated pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as generally in effect on the date
hereof, disclosing that any person (as the term "person" is used in Section
13(d)(3) of the Exchange Act), other than Xxxxxxx X. Xxxxxxx III, has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 20% or
more of the issued and outstanding shares of voting securities of the Company;
or
(b) The acquisition of 20% or more of the issued and
outstanding shares of voting securities of the Company by any person which would
otherwise require the filing of a report as described in (a) above.
3. Change of Control Date. For purposes of this Agreement, the "Change
of Control Date" shall mean the first date during the term of this Agreement on
which a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's employment
with the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Employee that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or in anticipation of a Change of Control, then for all
purposes of this Agreement the "Change of
24
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
4. Termination of Employment
(a) Good Cause. For purposes of this Agreement, "Good Cause"
shall mean (i) the Employee's commission of a felony, (ii) the Employee's
material breach of any of his obligations or duties, including the Employee's
willful failure to substantially perform his duties other than as a result of
his incapacity due to illness or injury, or (iii) the Employee's commission of a
willful act, such as embezzlement, against the Company intended to enrich the
Employee at the expense of the Company. No termination for Good Cause may be
effected under clause (ii) of the preceding sentence unless (a) the Company
shall have given written notice to the Employee specifying with particularity
the basis for the Company's decision to terminate the Employee's employment, and
(b) the Employee shall have failed to cease or correct the performance (or
nonperformance) which forms the basis for the Company's decision within 30 days
following the date of the Company's written notice.
(b) Good Reason. For purposes of this Agreement, "Good Reason"
shall mean any of the following which occurs without the written consent of the
Employee:
(i) Any significant change in the nature of Employee's
principal duties or any significant diminution in the
Employee's status or responsibilities;
(ii) Any decrease in the Employee's salary or cash
incentive opportunity below the level the Employee
was earning at the time of a Change of Control;
(iii) The Company's failure to obtain the agreement of a
successor entity to assume the obligations under this
Agreement; or
(iv) The Company's requiring the Employee to be based in
any location which would materially increase the
Employee's commuting time.
(c) Disability. For purposes of this Agreement, "Disability"
shall mean the absence of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive days as a result of incapacity
due to mental or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and reasonably acceptable
to the Executive or the Executive's legal representative.
5. Notice of Termination. Any termination by the Company for Good
Cause, or by the Employee for Good Reason, shall be communicated by a Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the
2
25
Employee or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Good Cause shall
not waive any right of the Employee or the Company, respectively, hereunder or
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
6. Date of Termination. For purposes of this Agreement, "Date of
Termination" means (a) if the Employee's employment is terminated by the Company
for Good Cause, or by the Employee for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may be,
(b) if the Employee's employment is terminated by the Company other than for
Good Cause, death or Disability, the date on which the Company notifies the
Employee of such termination and (c) if the Employee's employment is terminated
by reason of death or Disability, the date of death of the Employee or the date
of the determination that the Employee's Disability is determined to be total
and permanent, as the case may be.
7. Obligations of the Company upon Termination.
(a) Termination by Company Not for Good Cause; Resignation by
Employee for Good Reason. If, on or within five years after a Change of Control
Date, the Company shall terminate the Employee's employment other than for Good
Cause, Disability or death, or the Employee shall terminate employment for Good
Reason within five years after the Change of Control Date, the Employee will
receive, in addition to all benefits to which the Employee is legally entitled:
(i) Acceleration of all unvested MYR stock option grants
and MYR restricted stock awards or, at the sole
discretion of MYR's Board of Directors, their cash
equivalent;
(ii) Any earned but unpaid bonus for the year preceding
the year in which termination occurs;
(iii) A pro-rated target bonus for the worked portion of
the year in which termination occurs;
(iv) One year of current salary (not lower than the
Employee's salary on the Change of Control Date) and
one year of target bonus;
(v) One year of post-termination medical coverage on the
same basis as if the Employee was a current employee;
(vi) Reimbursement of legal expenses incurred, in
accordance with Section 9, to enforce this Agreement;
and
(vii) In the event that any of the foregoing provisions of
this Section 7 result in the receipt by the Employee
of a "parachute payment" (as defined in Section 280G
of the Internal Revenue Code of 1986, as amended (the
"Code")), then the Company shall make an additional
payment to the
3
26
Employee in an amount in cash such that the amount of
the after-tax proceeds of the Employee from the
payments provided for in this Agreement, taking into
account federal and state income and excise taxes, is
equal to the amount of the after-tax proceeds the
Employee would have received from the payments
provided for in this Agreement had such payments not
resulted in the receipt by the Employee of a
parachute payment. The Employee agrees to give the
Company prompt written notice of any claim by the
Internal Revenue Service that any payments made
pursuant to this Agreement result in the receipt by
the Employee of a parachute payment. In such event
the Company shall have the right to assume and
control the defense of an such claim with counsel of
its own selection. The Employee agrees to cooperate
with the Company in connection with any defense of
such claim.
In addition, for a period of 90 days following the thirtieth month anniversary
of a Change of Control Date, the Employee may elect to terminate employment at
the Employee's discretion provided that the Employee offers to continue
employment at the request of the Company for a period of up to six months. In
the event of such termination at the discretion of the Employee, the Employee
shall receive items (i) through (vi) above. The Employee will also be entitled
to receive all other benefits to which the Employee is entitled under the
Company's various policies or plans or to which the Employee is otherwise
legally entitled. Solely for purposes of the computation of benefits under this
Agreement, payments made by the Company as the result of such a termination at
the discretion of the Employee that are required to be taken into account with
respect to the Employee under Section 280G(b)(2)(A)(ii) of the Code shall not,
in the aggregate, exceed 2.99 times the Employee's "base amount" as that term is
defined in Section 280G(b)(3) of the Code. If the limitation contained in the
immediately preceding sentence applies, any reduction in payments will in no
event affect the computation of payments hereunder which do not constitute
"excess parachute payments" within the meaning of Section 280G(b) of the Code.
(b) Death. If the Employee dies during the term of this
Agreement prior to the Change in Control Date, this Agreement shall terminate
without further obligation of the Company to the Employee or his estate other
than the obligation to pay any compensation or benefits that have been earned
but not paid on the Date of Termination, and any post-termination, life
insurance or death benefits that are provided under the Company's normal benefit
plans and policies.
(c) Disability. If the Employee's employment shall be
terminated during the term of this Agreement prior to the Change in Control Date
by reason of the Employee's Disability, this Agreement shall terminate without
further obligation of the Company to the Employee other than the obligation to
pay any compensation or benefits that have been earned but not paid on the Date
of Termination, and any post-termination benefits or disability benefits that
are provided under the Company's normal benefit plans and policies.
(d) Good Cause; Other than for Good Reason. If, whether before
or after a Change of Control Date, the Employee's employment shall be terminated
for Good Cause, or if the Employee shall resign other than for Good Reason, this
Agreement shall terminate without
4
27
further obligation to the Employee other than the obligation to pay any
compensation or benefits that have been earned but not paid on the Date of
Termination, and any post-termination benefits that are provided under the
Company's normal benefit plans and policies.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Employee may
qualify, nor, subject to Section 12(g), shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
the Company. Amounts which are vested benefits or which the Employee is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
9. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. In no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Employee obtains other employment. In
the event the Employee incurs legal fees and expenses in seeking to obtain any
benefit under this Agreement and it is ultimately determined by a court of
competent jurisdiction that the Employee is entitled to receive all or any part
of such benefit, then the Company shall pay to the Employee the reasonable legal
fees and expenses so incurred by the Employee.
10. Confidential Information. The Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, and their respective businesses,
which shall have been obtained by the Employee during the Employee's employment
by the Company and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). After termination of the Employee's employment with the Company, the
Employee shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Employee under this Agreement.
11. Successors.
(a) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Employee's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
5
28
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxxxx X. Xxxxxxxxx
RFD 1357
Xxxx Xxxxx, XX 00000
If to the Company: MYR Group, Inc.
Three Continental Towers
0000 X. Xxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement represents the entire agreement between the parties hereto
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous oral or written negotiations, understandings and agreements
between the parties hereto.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(f) The Employee's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Employee or the Company may have hereunder, including, without
limitation, the right of the Employee to
6
29
terminate employment for Good Reason pursuant to Section 4(b) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(g) The Employee and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the Employee
and the Company, the employment of the Employee by the Company is "at will" and,
prior to the Change of Control Date, the Employee's employment may be terminated
by either the Employee or the Company at any time prior to the Change of Control
Date, in which case the Employee shall have no further rights under this
Agreement. From and after the Change of Control Date this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
MYR GROUP, INC.
By:
------------------------------------
Its:
------------------------------------
7
