EXHIBIT 10(Q)
AMENDMENT TO THE CONTINUITY AGREEMENTS AND SEVERANCE
AGREEMENTS BETWEEN EMCOR GROUP, INC. AND CERTAIN EXECUTIVES
This Amendment dated this 23rd of
December, 2008 is made by and between
EMCOR Group, Inc. (the "Company") and each of the executives (each,
an
"Executive") named below and shall constitute a separate agreement
as to each
Executive.
WHEREAS, the Company and each Executive
has entered into a Continuity
Agreement or Change of Control Agreement (the "Continuity
Agreement") and a
Severance Agreement (the "Severance Agreement", and together with
the Continuity
Agreement, the "Agreements"); and
WHEREAS, the Company and each of the
Executives desires to amend the
Agreements as hereafter provided.
NOW THEREFORE, in consideration of the
mutual promises and agreements of
the parties as set forth below, the parties agree to amend the
Agreements as
follows:
The Continuity Agreement is amended as follows:
1. Section 16 of the Continuity Agreement is hereby
amended, in its entirety,
to read as follows:
"16. SECTION 409A. Reference is made to
Section 409A of the Internal
Revenue Code of 1986, as amended,
(together with the regulations and other
applicable guidance thereunder, "Section
409A"). The following rules shall
apply notwithstanding anything to the
contrary under this Agreement:
(a) DELAY IN
PAYMENT; OTHER FORMS OF PAYMENT. Subject to the following
sentence, any payments payable under
Section 4(a) shall be paid in a lump
sum six months following the Executive's
separation from service, unless at
the relevant time the Executive is no
longer a specified employee. Any
payments payable under Section 4(a), if
payable other than within the
two-year period following a "change in
control event" as that term is
defined in the Treasury Regulations under
Section 409A, shall be paid in
the same form (E.G., a lump sum or
installments), and at the same time or
over the same period as in that certain
Severance Agreement between the
Company and the Executive dated April 25,
2005, as amended and in effect.
The responsibility for determining whether
a Change of Control is a "change
in control event" as defined above shall
rest with the Committee; provided,
that in the absence of an express and
reasonable determination to the
contrary with respect to a Change of
Control, the Compensation Committee
shall be deemed to have determined that
the Change of Control is a "change
in control event" as so defined.
(b) CERTAIN
IN-KIND BENEFITS AND REIMBURSEMENTS. All in-kind benefits
required to be provided hereunder, and all
reimbursements provided for
herein, shall be subject to and paid in
accordance with the
reimbursement/in-kind benefit rules under
Section 409A, including any
related policies of the Company.
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(c) TAX GROSS-UP.
The additional payment or payments described in
Section 5 shall be paid contemporaneously
with or as soon as practicable
after the related tax is paid but in no
event later than December 31 of the
calendar year following the calendar year
in which such tax is paid.
(d) COMPLIANCE
WITH SECTION 409A. It is the mutual intent of the
parties that the payment terms under this
Agreement comply with the
requirements of Section 409A, and that
they be construed accordingly.
(e) DEFINITIONS.
For purposes of this Agreement, all references to
termination of employment, retirement,
separation from service and similar
or correlative terms shall mean a
"separation from service" (as defined at
Section 1.409A-1(h) of the Treasury
Regulations) from the Company and from
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