Exhibit 10(d)
CONTINUITY AGREEMENT
This Agreement ("Agreement") is dated as of June 22, 1998, by and
between the EMCOR GROUP, INC., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") considers
the continued services of key executives of the Company to be in the best
interests of the Company and its stockholders; and
WHEREAS, the Board desires to assure, and has determined that it
is appropriate and in the best interests of the Company and its stockholders to
reinforce and encourage the continued attention and dedication of key executives
of the Company to their duties of employment without personal distraction or
conflict of interest in circumstances arising from the possibility or occurrence
of a change of control of the Company; and
WHEREAS, the Board has authorized the Company to enter into
continuity agreements with those key executives of the Company who are
designated by the Compensation and Personnel Committee of the Board of Directors
("Committee"), such agreements to set forth the severance compensation which the
Company agrees under certain circumstances to pay such executives; and
WHEREAS, the Executive is a key executive of the Company and has
been designated by the Committee as an executive to be offered such a continuity
compensation agreement with the Company.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive agree as follows:
1. Term of Agreement. On the date on which a Change of Control
occurs (the "Effective Date"), this Agreement shall become effective. If
Executive ceases to be employed by reason of an Anticipatory Termination (as
defined in Section 3 (c)) prior to the Effective Date, then Executive shall
receive the severance benefits provided herein and the Effective Date of this
Agreement shall be deemed to be the date immediately preceding the occurrence of
an Anticipatory Termination. If Executive ceases to be employed for any reason
other than an Anticipatory Termination prior to a Change of Control, this
Agreement shall terminate and have no effect and Executive shall receive such
severance payments as are provided in any existing agreement between the
Executive and the Company.
If a Change of Control occurs, the Executive's employment shall be continued
hereunder for the period (the "Employment Period") commencing on the Effective
Date and ending on the second anniversary of the date on which a Change of
Control occurs, subject to the termination of Executive's employment as
described hereinafter. Any existing employment agreement between the Executive
and the Company shall continue to be effective following the Change of Control,
but severance amounts under this Agreement shall be reduced by amounts payable
under any such employment agreement.
For purposes of this Agreement, a "Change of Control" shall be deemed to have
occurred when:
(i) any person or persons acting in concert (excluding Company
benefit plans) becomes the beneficial owner of securities of the Company
having at least 25% of the voting power of the Company's then
outstanding securities (unless the event causing the 25% threshold to be
crossed is an acquisition of voting common securities directly from the
Company, other than upon the conversion of convertible debt securities
or other securities and/or the exercise of options or warrants); or
(ii) the stockholders of the Company shall approve any merger or
other business combination of the Company, sale or lease of the
Company's assets or combination of the foregoing transactions (the
"Transactions") other than a Transaction immediately following which the
stockholders of the Company and any trustee or fiduciary of any Company
employee benefit plan immediately prior to the Transaction own at least
65% of the voting power, directly or indirectly, of (A) the surviving
corporation in any such merger or other business combination; (B) the
purchaser or lessee of the Company's assets; or (C) both the surviving
corporation and the purchaser or lessee in the event of any combination
of Transactions; or
(iii) within any 24 month period, the persons who were directors
immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to constitute
at least a majority of the Board or the board of directors of a
successor to the Company. For this purpose, any director who was not a
director at the beginning of such period shall be deemed to be an
Incumbent Director if such director was elected to the Board by, or on
the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors (so long as such
director was not nominated by a person who has expressed an intent to
effect a Change of Control or engage in a proxy or other control
contest).
2. Employment following Change of Control. Executive shall have
at least the same titles and responsibilities as those in effect immediately
prior to the Change of Control. Executive shall receive an annual base salary
which is not less than that in effect immediately prior to the Change of Control
and the Company shall review the salary annually with a view to increasing it;
provided any such increase shall be in the sole discretion of the Board. Once
increased, base salary can not be decreased. The Executive shall also be paid an
annual bonus (the "Bonus") which shall be no less than the higher of (i) the
bonus paid or payable in respect of the year prior to the Change of Control, or
(ii) the average of the annual bonuses paid or payable in respect of the three
years prior to the Change of Control. In addition, the Executive shall be
provided with incentive compensation, pension, general insurance and fringe
benefits and perquisites that are commensurate with the benefits and perquisites
provided to Executive immediately prior to the Change of Control or, if more
favorable to Executive, at the level made available to other similarly situated
executive officers of the Company after the Change of Control. Upon the Change
of Control, the Company shall also cause Executive's outstanding options to
become immediately exercisable.
3. Termination Following Change of Control.
(a) The Executive shall be entitled to the severance benefits
provided in Section 4 hereof in the event Executive's employment is terminated
(A) within two years following a Change of Control (i) by the Company without
Cause, (ii) by Executive for Good Reason, or (iii) for any reason during the
30-day period immediately following the first anniversary of the Change of
Control or (B) prior to a Change of Control, as a result of an Anticipatory
Termination.
Notwithstanding the foregoing, except as set forth in item (iii) above,
Executive shall not be entitled to severance benefits in the event of a
termination of employment on account of death, Disability or Retirement, but
excluding any such termination which is coincident with or subsequent to a
termination which would otherwise give rise to severance benefits. For purposes
of this Agreement:
(i) "Disability" shall mean an illness or injury preventing
Executive from performing his duties, as they existed immediately prior
to the illness or injury, on a full time basis for 180 consecutive
business days.
(ii) "Retirement" shall mean a termination of employment by
Executive pursuant to late, normal or early retirement under a pension
plan sponsored by the Company, as defined in such plan.
(b) Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such
failure resulting from incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to
Executive by the Board or an officer of the Company which specifically
identifies the manner in which the Board or the officer believes that
Executive has not substantially performed Executive's duties; or
(ii) (A) the conviction of, or plea of guilty or nolo contendere
to, a felony or (B) the willful engaging by Executive in gross
misconduct which is materially and demonstrably injurious to the
Company.
In each case above, for a termination of employment to be for Cause: (a) the
Executive must be provided with a Notice of Termination (as described in Section
3 (d)); (b) the Executive must be provided with an opportunity to be heard by
the Board no earlier than 30 days following the Notice of Termination (during
which notice period Executive has failed to cure or resolve the behavior in
question); and (c) there must be a good faith determination of Cause by at least
3/4 of the non-employee outside directors of the Company.
(c) Good Reason and Anticipatory Termination. For purposes of
this Agreement, "Good Reason" shall mean:
(i) Executive's annual salary is reduced below the higher of (A)
the amount in effect on the Effective Date, or (B) the highest amount in
effect at any time thereafter;
(ii) Executive's annual bonus is reduced below the Bonus;
(iii) Executive's duties and responsibilities or the program of
incentive compensation and retirement and general insurance benefits
offered to Executive are materially and adversely diminished in
comparison to the duties and responsibilities or the program of benefits
enjoyed by Executive on the Effective Date;
(iv) Executive is required to be based at a location more than 50
miles from the location where Executive was based and performed services
on the Effective Date; or
(v) failure to provide for the assumption of this Agreement by
any successor entity;
provided, however, that any diminution of duties or responsibilities that occurs
solely as a result of the fact that the Company ceases to be a public company
shall not, in and of itself, constitute Good Reason.
Any event or condition described in clauses (i) through (iv) or a termination
without Cause, either of which occurs prior to a Change of Control but which
Executive reasonably demonstrates (A) was at the request of a third party who
has indicated an intention or taken steps reasonably calculated to effect a
Change of Control (a "Third Party"), or (B) otherwise arose in connection with,
or in anticipation of a Change of Control, shall constitute Good Reason for
purposes of this Agreement, notwithstanding that it occurred prior to a Change
of Control ("Anticipatory Termination").
Executive shall give the Company written notice of any event which he claims is
the basis for Good Reason and the Company shall have 30 days within which to
cure or resolve the behavior in question before Executive can terminate for Good
Reason.
(d) Notice of Termination. Any purported termination of the
Executive's employment with the Company shall be communicated by a Notice of
Termination to the Executive, if such termination is by the Company, or to the
Company, if such termination is by the Executive. For purposes of this
Agreement, "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provisions so indicated. For purposes of this Agreement, no purported
termination of Executive's employment with the Company shall be effective
without such a Notice of Termination having been given.
(e) Dispute Resolution. Disputes arising from the operation of
this Agreement, including, but not necessarily being limited to, the manner of
giving the Notice of Termination, the reasons or cause for the Executive's
termination or the amount of severance compensation due to the Executive
subsequent to the Executive's termination, may be resolved, at the Executive's
discretion, by arbitration; provided, however, that disputes arising under
Section 11 of this Agreement shall not be resolved under this Section 3 (e). In
the event that any such dispute which the Executive elects to be resolved by
arbitration, after notice thereof is given to the other party in writing, is not
able to be resolved by mutual agreement of the parties within sixty (60)
calendar days of the giving of such notice, the Executive and the Company hereby
agree to promptly submit such a dispute to binding arbitration in New York, New
York in accordance with New York law and the rules and procedures of the
American Arbitration Association. During any period in which a dispute is
pending that the Executive elects to be resolved by arbitration, the Executive
shall continue to receive his salary (including any Bonus) and benefits as if
his employment with the Company had continued through the date of the arbiters'
determination, and any such payments or benefits shall not be offset against any
severance, either under this Agreement or otherwise, to which Executive may be
entitled.
4. Compensation Upon Termination After a Change of Control.
If within two (2) years after the Effective Date, the Executive's
employment by the Company shall be terminated in accordance with Section 3 (a)
(the "Termination"), the Executive shall be entitled to the following payments
and benefits:
(a) Severance. As soon as practicable after the Termination, but
in any event no later than 10 business days following such Termination, the
Company shall pay or cause to be paid to the Executive, a lump sum cash amount
equal to three (3) times the sum of (i) the Executive's annual base salary on
the Effective Date (the "Base Salary"), (ii) the Bonus, and (iii) the value of
the perquisites (e.g., car allowance, club dues, etc., including any ordinary
tax gross-ups for perquisites) provided to Executive in respect of the year
prior to the Change of Control. In addition, at the time of the above payment,
the Executive shall be entitled to an additional lump sum cash payment equal to
the sum of (A) Executive's annual salary through the date of termination, (B) a
pro rata portion of the Bonus (calculated through the date of termination), and
(C) an amount, if any, equal to compensation previously deferred (excluding any
qualified plan deferral) and any accrued vacation pay, in each case, in full
satisfaction of Executive's rights thereto.
(b) Additional Benefits. The Executive shall be entitled to
continued medical, dental and life insurance coverage for the Executive and the
Executive's eligible dependents on the same basis as in effect prior to the
Change of Control or the Executive's Termination of employment, whichever is
deemed to provide for more substantial benefits, until the earlier of (A)
thirty-six (36) months (the "Separation Period") after the Executive's
Termination or (B) the commencement of comparable coverage with a subsequent
employer; provided, however, that such continued coverage shall not count
against any continued coverage required by law.
(c) Outplacement. If so requested by the Executive, outplacement
services shall be provided by a professional outplacement provider at a cost to
the Company of not more than 20% of the Executive's Base Salary.
(d) Withholding. Payments and benefits provided pursuant to this
Section 4 shall be subject to any applicable payroll and other taxes required to
be withheld.
5. Certain Additional Payments by the Company:
(a) Anything in this Agreement to the contrary notwithstanding,
if it is determined (as hereafter provided) that any payment or distribution by
the Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement, policy, plan, program
or arrangement, including without limitation any stock option, stock
appreciation right or similar right, or the lapse or termination of any
restriction on or the vesting or exercisability of any of the foregoing (a
"Payment") , would be subject to the excise tax imposed by Section 4999 of the
Code (or any successor provision thereto) by reason of being "contingent on a
change in ownership or control" of the Company, within the meaning of Section
28OG of the Code (or any successor provision thereto) or to any similar tax
imposed by state or local law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such interest and penalties,
are hereafter collectively referred to as the "Excise Tax") , then the Executive
shall be entitled to receive an additional payment or payments (a "Gross-Up
Payment") in an amount such that, after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 5 (f) hereof, all
determinations required to be made under this Section 5, including whether an
Excise Tax is payable by the Executive and the amount of such Excise Tax and
whether a Gross-Up Payment is required and the amount of such Gross-Up Payment,
shall be made by the nationally recognized firm of certified public accountants
(the "Accounting Firm") used by the Company prior to the Change of Control (or,
if such Accounting Firm declines to serve, the Accounting Firm shall be a
nationally recognized firm of certified public accountants selected by the
Executive). The Accounting Firm shall be directed by the Company or the
Executive to submit its determination and detailed supporting calculations to
both the Company and the Executive within 15 calendar days after the Termination
Date, if applicable, and any other such time or times as may be requested by the
Company or the Executive. If the Accounting Firm determines that any Excise Tax
is payable by the Executive, the Company shall pay the required Gross-Up Payment
to the Executive within five business days after receipt of such determination
and calculations. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall, at the same time as it makes such
determination, furnish the Executive with an opinion that he has substantial
authority not to report any Excise Tax on his federal, state, local income or
other tax return. Any determination by the Accounting Firm as to the amount of
the Gross-Up Payment shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code (or any
successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments that will
not have been made by the Company should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts or fails to pursue its remedies pursuant to Section
5(f) hereof and the Executive thereafter is required to make a payment of any
Excise Tax, the Executive shall direct the Accounting Firm to determine the
amount of the Underpayment that has occurred and to submit its determination and
detailed supporting calculations to both the Company and the Executive as
promptly as possible. Any such Underpayment shall be promptly paid by the
Company to, or for the benefit of, the Executive within five business days after
receipt of such determination and calculations.
(c) The Company and the Executive shall each provide the
Accounting Firm access to and copies of any books, records and documents in the
possession of the Company or the Executive, as the case may be, reasonably
requested by the Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the determination
contemplated by Section 5(b) hereof.
(d) The federal, state and local income or other tax returns
filed by the Executive and the Company (or any filing made by a consolidated tax
group which includes the Company) shall be prepared and filed on a consistent
basis with the determination of the Accounting Firm with respect to the Excise
Tax payable by the Executive. The Executive shall make proper payment of the
amount of any Excise Tax, and at the request of the Company, provide to the
Company true and correct copies (with any amendments) of his federal income tax
return as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive shall within five business days pay to the Company the amount of such
reduction.
(e) The fees and expenses of the Accounting Firm for its services
in connection with the determinations and calculations contemplated by Sections
5 (b) and (d) hereof shall be borne by the Company. If such fees and expenses
are initially advanced by the Executive, the Company shall reimburse the
Executive the full amount of such fees and expenses within five business days
after receipt from the Executive of a statement therefor and reasonable evidence
of his payment thereof.
(f) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of a Gross-Up Payment. Such notification shall be given
as promptly as practicable but no later than 10 business days after the
Executive actually receives notice of such claim and the Executive shall further
apprise the Company of the nature of such claim and the date on which such claim
is requested to be paid (in each case, to the extent known by the Executive).
The Executive shall not pay such claim prior to the earlier of (a) the
expiration of the 30-calendar-day period following the date on which he gives
such notice to the Company and (b) the date that any payment of amount with
respect to such claim is due. If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Executive shall:
(i) provide the Company with any written records or documents in
his possession relating to such claim reasonably requested by the
Company;
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including without limitation accepting legal representation with respect
to such claim by an attorney competent in respect of the subject matter
and reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including interest and penalties) incurred in
connection with such contest and shall indemnify and hold harmless the
Executive, on an after-tax basis, for and against any Excise Tax or
income tax, including interest and penalties with respect thereto,
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this Section 5
(f), the Company shall control all proceedings taken in connection with
the contest of any claim contemplated by this Section 5 (f) and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim (provided however, that the Executive may
participate therein at his cost and expense) and may, at its option,
either direct the Executive to pay the tax claimed and ▇▇▇ for a refund
or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay the tax claimed and ▇▇▇
for a refund, the Company shall advance the amount of such payment to
the Executive on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income
tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of taxes for
the taxable year of the Executive with respect to which the contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of any such contested claim shall be
limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(g) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 5 (f) hereof, the Executive receives any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 5 (f) hereof) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after any taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 5(f) hereof,
a determination is made that the Executive is not entitled to any refund with
respect to such claim and the Company does not notify the Executive in writing
of its intent to contest such denial or refund prior to the expiration of 30
calendar days after such determination, then such advance shall be forgiven and
shall not be required repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be pursuant to this
Section 5.
6. Obligations Absolute; No Mitigation; No Effect On
Other Rights.
(a) The obligations of the Company to make the payment to the
Executive, and to make the arrangements, provided for herein are absolute and
unconditional and may not be reduced by any circumstances, including without
limitation any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or any third party at any time.
(b) The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Executive in any subsequent employment.
(c) The provisions of this Agreement, and any payment provided
for herein, shall not supersede or in any way limit the rights, benefits, duties
or obligations which the Executive may now or in the future have under any
benefit, incentive or other plan or arrangement of the Company or any other
agreement with the Company.
7. Not an Employment Agreement. Subject to the terms of this or
any other agreement or arrangement between the Company and the Executive that
may then be in effect, nothing herein shall prevent the Company from terminating
the Executive's employment.
8. Successors; Binding Agreement, Assignment.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business of the Company, by agreement to expressly,
absolutely and unconditionally assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a material
breach of this Agreement and shall entitle the Executive to terminate the
Executive's employment with the Company or such successor for Good Reason
immediately prior to or at any time after such succession. As used in this
Agreement, "Company" shall mean (i) the Company as hereinbefore defined, and
(ii) any successor to all or substantially all of the Company's business or
assets which executes and delivers an agreement provided for in this Section
8(a) or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law, including any parent or subsidiary of such a
successor.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would be payable to the Executive
hereunder if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's estate or designated beneficiary. Neither this
Agreement nor any right arising hereunder may be assigned or pledged by the
Executive.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall be in
writing and shall be deemed to have been duly given when personally delivered or
when mailed United States certified or registered mail, return receipt
requested, postage prepaid, and addressed, in the case of the Company, to the
Company at:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman of the Board
and in the case of the Executive, to the Executive at the most current address
shown on the Executive's employment records. Either party may designate a
different address by giving notice of change of address in the manner provided
above, except that notices of change of address shall be effective only upon
receipt.
10. Expenses. In addition to all other amounts payable to the
Executive under this Agreement, the Company shall pay or reimburse the Executive
for legal fees (including without limitation, any and all court costs and
attorneys' fees and expenses) , incurred by the Executive in connection with or
as a result of any claim, action or proceeding brought by the Company or the
Executive with respect to or arising out of this Agreement or any provision
hereof; unless, in the case of an action brought by the Executive, it is
determined by an arbitrator or by a court of competent jurisdiction that such
action was frivolous and was not brought in good faith.
11. Confidentiality. The Executive shall retain in confidence any
and all confidential information concerning the Company and its respective
business which is now known or hereafter becomes known to the Executive, except
as otherwise required by law and except information (i) ascertainable or
obtained from public information, (ii) received by the Executive at any time
after the Executive's employment by the Company shall have terminated, from a
third party not employed by or otherwise affiliated with the Company or (iii)
which is or becomes known to the public by any means other than a breach of this
Section 11. Upon any termination of Executive's employment, the Executive shall
not take or keep any proprietary information or documentation belonging to the
Company.
12. Miscellaneous. No provision of this Agreement may be amended,
altered, modified, waived or discharged unless such amendment, alteration,
modification, waiver or discharge is agreed to in writing signed by the
Executive and such officer of the Company as shall be specifically designated by
the Committee or by the Board. No waiver by either party, at any time, of any
breach by the other party of, or of compliance by the other party with, any
condition or provision of this Agreement to be performed or complied with by
such other party shall be deemed a waiver of any similar or dissimilar provision
or condition of this Agreement or any other breach of or failure to comply with
the same condition or provision at the same time or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without giving effect to its conflict of laws rules. Any
action brought by the Executive or the Company shall be brought and maintained
in a court of competent jurisdiction in the State of New York.
13. Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
hereto waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
14. Revocation. This Agreement may be revoked at any time prior
to the Effective Date, without prior notice to Executive, upon the resolution of
the Board that the continued existence of this Agreement and of similar
agreements with other employees of the Company is no longer in the best
interests of the Company.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior oral or written agreements, commitments or
understanding with respect to the matters provided for herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
EMCOR GROUP, INC.
By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
_________________________________
Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇