UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported) October 12, 2004
EMCOR Group, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-2315 11-2125338
(Commission File Number) (I.R.S. Employer Identification No.)
301 Merritt Seven, Norwalk, CT 06851
(Address of Principal Executive Offices) (Zip Code)
(203) 849-7800
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
__ Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
__ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
__ Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
__ Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entering into a Material Definitive Agreement.
Mr. Anthony Guzzi was elected President and Chief Operating Officer of EMCOR
Group, Inc. (the "Company"), effective upon the commencement of his employment
with the Company, which is expected to be on or about October 25, 2004, pursuant
to a resolution of the Company's Board of Directors adopted October 1, 2004. In
connection with his election to that position, the Company on October 12, 2004
entered into a letter agreement with him (the "Letter Agreement"), a copy of
which is attached to this Current Report on Form 8-K as Exhibit 10.1 and the
terms of which are hereby incorporated herein by reference.
Pursuant to the Letter Agreement, it was agreed, among other things, that (a)
Mr. Guzzi's salary will be at the annual rate of $525,000, (b) he will be
entitled to a minimum bonus in respect of 2004 of $175,000, (c) he will receive
a signing bonus of $200,000, (d) his annual target bonus will be no less than
100% of his base salary, (e) he will be granted an option to purchase 30,000
shares of common stock of the Company (the "Common Stock") at an exercise price
per share equal to the fair market value of a share of Common Stock on the date
of grant pursuant to an option agreement (the "Option Agreement"), a copy of
which is attached as Exhibit A to the Letter Agreement and the terms of which
are hereby incorporated herein by reference, and (f) he will be awarded 25,000
restricted stock units pursuant to a Restricted Stock Unit Agreement ("the RSU
Agreement") entitling him to an equal number of shares of Common Stock upon the
vesting of the restricted stock units, a copy of which agreement is attached as
Exhibit B to the Letter Agreement and the terms of which are incorporated herein
by reference. The Letter Agreement also provides that, upon the commencement of
Mr. Guzzi's employment with the Company, Mr. Guzzi and the Company will enter
into (i) a Severance Agreement (the "Severance Agreement"), a copy of which is
attached as Exhibit D to the Letter Agreement and the terms of which are hereby
incorporated herein by reference, (ii) a Change of Control Agreement (the
"Change of Control Agreement"), a copy of which is attached as Exhibit E to the
Letter Agreement and the terms of which are hereby incorporated herein by
reference, (iii) the Company's standard form of Indemnification Agreement with
each of its officers and directors (the "Indemnification Agreement"), a copy of
which is attached as Exhibit F to the Letter Agreement and the terms of which
are hereby incorporated herein by reference and (iv) the Company's standard form
of Confidentiality Agreement (the "Confidentiality Agreement"), a copy of which
is attached as Exhibit C to the Letter Agreement and the terms of which are
hereby incorporated herein by reference.
In addition, the Letter Agreement also provides for the payment to Mr. Guzzi of
certain costs and expenses, as set forth in Appendix I to the Letter Agreement,
incident to his relocation from his current home in upstate New York to a new
home in the Norwalk, Connecticut area where the Company's principal executive
offices are located.
The Option Agreement provides for the grant to Mr. Guzzi of options to purchase
30,000 shares of Common Stock at an exercise price per share equal to the fair
market value of a share of Common Stock on the grant date. Such options have a
ten year term, and one-third of the options are exercisable on or after the
first anniversary of the date of grant, an additional one-third of the options
are exercisable on or after the second anniversary of the date of grant, and the
balance of the options are exercisable on or after the third anniversary of the
date of grant. Under the terms of the Option Agreement, in the event Mr. Guzzi's
employment is terminated by the Company without Cause (as that term is defined
in a Severance Agreement) or is terminated by him for Good Reason (as that term
is defined in the Severance Agreement), all the options become exercisable and
may be exercised at any time or from time to time during a period of two years
from the date of such termination.
The RSU Agreement provides for the award to Mr. Guzzi of 25,000 restricted stock
units of which one-half will vest on the first business day immediately
following the day upon which the Company releases to the public generally its
results for the fourth quarter of 2004 (entitling him to receive 12,500 shares
of Common Stock on the vesting date), and of which one-half will vest on the
first business day immediately following the day upon which the Company releases
to the public generally its results for the fourth quarter of 2005 (entitling
him to receive 12,500 shares of Common Stock on the vesting date). Under the
terms of the RSU Agreement, if Mr. Guzzi's employment is terminated by the
Company without Cause (as that term is defined in the Severance Agreement) or is
terminated by him for Good Reason (as that term is defined in the Severance
Agreement), then the Company shall issue to him a number of shares of Common
Stock equal to any unvested restricted stock units.
Among other things, the Severance Agreement provides that if Mr. Guzzi's
employment is terminated by the Company without Cause (as that term is defined
in the Severance Agreement) or if he terminates his employment for Good Reason
(as that term is defined in the Severance Agreement), he will be entitled to
receive, in eight equal quarterly installments commencing with the date of
termination, an aggregate amount equal to twice his base salary in effect
immediately prior to the occurrence of the event or circumstance upon which the
termination is based. In addition, he will be entitled to receive all unpaid
amounts in respect of his bonus for any calendar year ended before the date of
termination and an amount equal to his target bonus for the year in which his
termination takes place multiplied by a fraction the numerator of which is the
number of days in the calendar year in which the termination occurs that he was
employed by the Company and the denominator of which is 365. He will also be
entitled for a period of 18 months from the date of termination, at the
Company's expense, to coverage for himself (and, to the extent applicable, his
eligible dependents) under the Company's medical, dental and hospitalization
insurance plans and for a period of 12 months from the date of termination, at
the Company's expense, to coverage under the Company's group life and accidental
death and dismemberment insurance plans; provided if he is provided with
comparable coverage by a successor employer any such coverage by the Company
shall cease. No severance benefits are payable under the Severance Agreement if
benefits are payable under the Change of Control Agreement hereafter referred
to.
The Change of Control Agreement generally provides to Mr. Guzzi a severance
benefit if the Company terminates his employment without Cause (as that term is
defined in the Change of Control Agreement) or if he terminates his employment
for Good Reason (as that term is defined in the Change of Control Agreement)
within two years following a Change of Control (as that term is defined in the
Change of Control Agreement) equal to the sum of three times (i) his base salary
at the time of the Change of Control, (ii) the higher of (A) his bonus in
respect of the year prior to the Change of Control and (B) the average of his
bonuses for the three years prior to the Change of Control and (iii) the value
of perquisites provided in respect of the year prior to the Change of Control.
Other severance benefits under the Change of Control Agreement include
outplacement assistance and a continuance of insurance benefits for three years.
For purposes of the agreement a "Change of Control" means, in general, the
occurrence of (i) the acquisition by a person or group of persons of 25% or more
of the voting securities of the Company, (ii) the approval by the Company's
stockholders of a merger, business combination or sale of the Company's assets,
the result of which is that less than 65% of the voting securities of the
resulting corporation is owned by the holders of Common Stock prior to such
transaction or (iii) the failure of Incumbent Directors (as defined in the
Change of Control Agreement) to constitute at least a majority of the Board of
Directors of the Company during any two year period.
Generally, no benefits are provided under the Change of Control Agreement for
any type of termination before a Change of Control, for termination after a
Change of Control due to death or disability, any termination for Cause (as the
term is defined in the Change of Control Agreement) or for voluntary termination
(other than for Good Reason (as that term is defined in the Change of Control
Agreement)).
If all or any portion of the payments or benefits payable under the Change of
Control Agreement, either alone or together with other payments and benefits
which Mr. Guzzi receives or is then entitled to receive from the Company, would
constitute a "parachute payment" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), then Mr. Guzzi will be
entitled to such additional payments as may be necessary to ensure that the net
after tax benefit of all such payments shall be equal to his respective net
after tax benefit as if no excise tax had been imposed under Section 4999 of the
Code.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
Mr. Guzzi was elected President and Chief Operating Officer of the Company,
effective upon the commencement of his employment with the Company, which is
expected to be on or about October 25, 2004, pursuant to a resolution of the
Company's Board of Directors adopted October 1, 2004. Mr. Guzzi, who is age 40,
has served as President of the North American Distribution and Aftermarket
Division of Carrier Corporation ("Carrier") since August 2001. Carrier is a
manufacturer and distributor of commercial and residential HVAC and
refrigeration systems and equipment and a provider of aftermarket service and
components of its own products and those of other manufacturers in both the HVAC
and refrigeration industries. From January 2001 to August 2001, Mr. Guzzi was
President of Carrier's Commercial Systems and Services Division and from June
1998 to December 2000, he was Vice President and General Manager of Carrier's
Commercial Sales and Services Division.
From time to time, the Company has purchased and will continue to purchase
equipment and parts from Carrier, and has retained and will continue to retain
the services of Carrier, in the ordinary course of business on terms and
conditions negotiated on an arm's length basis.
There are no familial relationships between Mr. Guzzi and any other of the
Company's offices and directors.
In connection with Mr. Guzzi's election as the Company's President and Chief
Operating Officer, the Company entered into the Letter Agreement discussed above
in Item 1.01 and attached hereto as Exhibit 10.1 to this Current Report on Form
8-K. Pursuant to the terms of the Letter Agreement, the Company also agreed to
enter into the Option Agreement, the RSU Agreement, the Severance Agreement, the
Change of Control Agreement, the Indemnification Agreement and the
Confidentiality Agreement, the material terms of which are referred to in Item
1.01 above and forms of which are attached as exhibits to the Letter Agreement.
The terms of such employment-related agreements are incorporated herein by
reference.
On October 13, 2004, the Company issued a press release regarding Mr. Guzzi's
election, a copy of which is filed as Exhibit 99.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Exhibit Number Description of Exhibits
10.1 Letter Agreement dated October 12, 2004 between the
Company and Anthony Guzzi
99.1 Press Release dated October 13, 2004 relating to
the election of Anthony Guzzi as President and
Chief Operating Officer
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EMCOR GROUP, INC.
Date: October 13, 2004 By:
Frank T. MacInnis
Chairman of the Board, President and
Chief Executive Officer
EXHIBIT INDEX
Exhibit Number Description
10.1 Letter Agreement dated October 12, 2004 between the
Company and Anthony Guzzi
99.1 Press Release dated October 13, 2004 relating to
the election of Anthony Guzzi as President and
Chief Operating Officer
Exhibit 10.1
October 12, 2004
Mr. Anthony Guzzi
6809 Holleston Circle
Fayetteville, NY 13066
Dear Tony:
We are pleased that you are willing to join EMCOR Group, Inc. (the "Company") as
President and Chief Operating Officer of the Company. We believe that you will
enjoy the challenges and opportunities that the Company has to offer.
This is to confirm the terms and conditions of your employment, as follows:
1. Position:
President and Chief Operating Officer, reporting to the Chief Executive
Officer and Chairman of the Board of Directors of the Company (the "CEO").
2. Base Salary:
Your salary for this position will be $525,000 per annum, payable weekly.
3. Bonus:
For 2004, you shall be entitled to a bonus of $175,000 provided you remain
employed by the Company through December 31, 2004. Your target bonus for
2005 and each year thereafter shall be no less than 100% of your base
salary for the applicable year, provided you are employed by the Company
through December 31 of such year. Your annual bonus will be payable in the
same combination of cash and equity as paid to other senior executive
officers of the Company and shall be based upon the achievement of agreed
upon goals established by the Compensation and Personnel Committee (the
"Committee") of the Board of Directors annually as provided in the
Company's Key Executive Incentive Bonus Plan and subject to the Committee's
right to reduce such bonus notwithstanding achievement of such goals.
4. Signing Bonus:
You shall receive a signing bonus of $200,000 payable promptly following
commencement of your employment.
5. Travel & Entertainment Expenses:
Reimbursement in accordance with the standard policy of EMCOR Group, Inc.
6. Auto Allowance:
$870 per month payable monthly together with reimbursement for your auto
insurance, any personal property tax on such auto, and the cost of
maintenance and repair of such auto. In addition, the Company shall
reimburse you for cost of a lease capital reduction payment relating to the
lease of such auto. The Company shall bear the cost to you of any increased
taxes caused by such auto allowance and reimbursement of the foregoing
costs.
7. Vacation: 4 weeks.
8. Benefits:
You will be eligible to participate in the Company's group medical, dental,
life and long term disability insurance plans and 401(K) Plan effective the
first day of the month following your date of employment. In addition, the
Company shall reimburse you for any initiation fee and monthly dues for
membership in a club suitable for entertaining clients of the Company and
provide you with term life insurance (in addition to coverage under the
Company's group life insurance policy) in the amount of $3,000,000.
9. Options:
You shall be granted options to purchase 30,000 shares of common stock of
the Company. Such options shall have the terms set forth in an Option
Agreement in the form annexed hereto as Exhibit A to be entered into as of
the date your employment with the Company commences.
10. Restricted Stock Units:
You shall be awarded 25,000 Restricted Stock Units, which shall have the
terms set forth in a Restricted Stock Unit Agreement in the form annexed
hereto as Exhibit B to be entered into as of the date your employment with
the Company commences.
11. Travel Assignment:
It is anticipated that a considerable amount of travel will be required in
the performance of this position.
12. Confidentiality Agreement:
You shall enter into an Agreement Regarding Confidential Information in the
form annexed hereto as Exhibit C as of the date your employment with the
Company commences.
13. Severance:
You and the Company shall enter into a Severance Agreement in the form
annexed hereto as Exhibit D as of the date your employment with the Company
commences.
14. Change of Control:
You and the Company shall enter into a Change of Control Agreement in the
form annexed hereto as Exhibit E as of the date your employment with the
Company commences.
15. Indemnification:
You and the Company shall enter into an Indemnification Agreement in the
form annexed hereto as Exhibit F as of the date your employment with the
Company commences.
16. Relocation:
The Company shall pay to you relocation costs and expenses in accordance
with the Relocation Plan annexed hereto as Appendix I.
As previously discussed, your employment is conditioned upon your execution of
this Letter.
This Letter is not to be considered an agreement for employment for a term, and
your employment will be one "at will." This means that you may terminate your
employment at any time and, similarly, the Company may terminate your employment
at any time; however, in certain cases you may be entitled to a severance
payment as set forth in the Severance Agreement referred to above. The terms of
any severance to which you may be entitled in connection with the termination of
your employment pursuant to a change of control of the Company are set forth in
the Change of Control Agreement referred to above. Your employment at-will
relationship cannot be altered except by express written agreement signed by you
and an authorized officer of the Company.
You further acknowledge that the terms and conditions of this Letter supersede
all prior oral or written understandings, agreements and statements or
representations concerning the subject matter of this Letter.
We look forward to the opportunity of working with you.
Please sign and return a copy of this Letter to confirm your agreement with the
foregoing. If you have any questions regarding any of these documents or this
offer, please do not hesitate to contact me.
Sincerely,
Frank T. MacInnis
Chairman, Chief Executive Officer
and President
I have read and understand the terms of this Letter and am signing this Letter
freely and voluntarily and confirm my agreement with the foregoing terms and
conditions of this Letter.
October 12, 2004
_____________________________ _________________
Anthony Guzzi Date
Appendix I
Relocation Plan
General
Should Executive voluntarily terminate his employment with the Company
without Good Reason within one year of the date hereof, Executive will
repay the Company for all relocation costs and expenses (including, without
limitation, any tax gross up).
Sale of Existing Home
Executive's existing home to be listed with a broker reasonably acceptable
to the Company at no more than 105% of Appraised Value Offer.
The "Appraised Value Offer" shall be equal to the average of two
independent appraisals conducted by two independent appraisers reasonably
acceptable to the Company. If the variance between the two appraisals is
greater than 5%, a third appraisal will be obtained from an independent
appraiser reasonably acceptable to the Company, and the Appraised Value
Offer will be the average of the two closest appraisals.
The Company will purchase Executive's existing home at the Appraised Value
Offer as set forth in a contract of sale delivered to Executive by the
Company, provided that such contract of sale is signed and returned to the
Company within 60-days of its receipt by Executive.
If within the 60-day period, Executive receives an offer from a buyer, it
must be presented to the Company for the Company's reasonable acceptance or
rejection. If an offer is accepted and is greater than the Appraised Value
Offer, the Appraised Value Offer and related contract of sale will be
amended (the "Amended Value Offer") to reflect the sale price set forth in
the offer and the Company will purchase the existing home at the Amended
Value Offer. If the buyer's offer is less than the Appraised Value Offer,
but is accepted by the Company, the Company will purchase the existing home
from Executive at the Appraised Value Offer.
If Executive does not accept the Appraised Value Offer within the 60-day
period, it will expire.
Company will reimburse Executive for any loss of up to $10,000 on sale of
existing home, but such loss is based on the Executive's original purchase
price and excludes the costs of any repairs or capital improvements.
Issues with respect to the existing home must be disclosed and resolved at
Executive's expense prior to the sale of the existing home, including,
without limitation, issues raised in an inspection, unclear title,
environmental problems, mold, structural issues, deficiencies in sewage,
septic systems or drainage, problems with underground or above-ground
storage tanks, existence of asbestos or hazardous materials, building code
violations, safety deficiencies and water problems.
Sale of existing home must be completed within one year of the date hereof.
Purchase of New Home
Company will reimburse for expenses of Executive and spouse for two
home-hunting trips to the Norwalk, Connecticut area for up to a total of
ten days/nine nights.
Company will reimburse Executive for following home purchase closing costs:
(a) inspection fees, customary survey fees and typical legal fees, (b)
title insurance/examination, (c) recording fees, (d) real estate transfer
fees, and (e) up to 1.0% point (not to exceed $10,000) in connection with a
mortgage.
Purchase of new home to be made within one year of the date hereof.
Moving Costs
Company will pay costs of moving Executive from existing home to new home,
which costs reflect packing and unpacking of ordinary household goods,
shipping of such goods and reasonable insurance.
Miscellaneous Expenses
Company will reimburse Executive, up to $50,000 on an accountable basis, to
cover, among other things, (a) incidental expenses incurred during home
hunting trips and final move trip such as phone, incidentals and laundry
expenses, (b) cleaning services at existing and new homes, (c) utility
connections and telephone installation at new home, (d) servicing of
appliances at new home for move related causes, (e) alteration and
installation of carpets and drapes at new home, (f) tax preparation
assistance, and (g) tips for movers.
Temporary Living Assistance
For a maximum of nine months from the date hereof, the Company will
reimburse Executive up to $3,000 per month to cover the cost of temporary
living quarters.
The foregoing costs and expenses (including loss reimbursement) shall be grossed
up for taxes other than payments in respect of (a) an Appraisal Value or Amended
Value Offer and (b) new home points; provided such costs and expense are
incurred within one year from the date hereof.
EXHIBIT A
STOCK OPTION AGREEMENT
THIS AGREEMENT made as of the _____ day of October, 2004 by and between
EMCOR GROUP, INC., a Delaware corporation (the "Corporation"), and Anthony Guzzi
("Grantee").
W I T N E S S E T H:
____________________
WHEREAS, the Corporation wishes to grant to Grantee, on the date set forth
above, a non-qualified stock option to purchase shares of Common Stock of the
Corporation, $.01 par value, upon the terms and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the premises and of the undertakings
hereinafter contained, the Corporation and Grantee agree as
follows:
1. Subject to the terms and conditions of this Agreement, the Corporation
hereby grants to Grantee a non-qualified stock option (the "Option") to
purchase all or any part of 30,000 shares of Common Stock of the
Corporation, $.01 par value (the "Shares"), at a price per share of
$________*. Unless sooner terminated in accordance with the terms of this
Agreement and prior to the expiration date of the Option, one-third of the
Shares subject to the Option may be purchased on or after the first
anniversary of the date hereof at any time or from time to time, one-third
of the shares subject to the Option may be purchased on or after the second
anniversary of the date hereof at any time or from time to time, and
one-third of the shares subject to the Option may be purchased on or after
the third anniversary of the date hereof at any time or from time to time;
provided, however, that if Grantee's employment with the Corporation shall
be terminated at any time by the Corporation other than for Cause (as that
term is defined in the Severance Agreement (the "Severance Agreement")
between the Grantee and the Corporation dated as of the date hereof) or by
the Grantee for Good Reason (as that term is defined in the Severance
Agreement), the Option shall become immediately exercisable in full and,
subject to the provisions of Section 5(c) hereof, remain exercisable, at
any time or from time to time, until two years from the date thereof.
Unless sooner exercised in full or sooner terminated as expressly provided
herein, the Option shall expire ten years from the date hereof.
2. (a) Notwithstanding the foregoing, all or any part of the Option may be
exercised in the following circumstances: (a) subject to the provisions of
Section 4 hereof, upon (but prior to the expiration of the term of the
Option) the Grantee's retirement from the Corporation and all Subsidiaries
on or after his 65th birthday, (b) subject to the provisions of Section 4
hereof, upon the disability (to the extent and in a manner as shall be
determined by the Compensation and Personnel Committee (the "Committee") of
the Board of Directors of the Corporation in its sole discretion) or death
of the Grantee, or (c) upon the occurrence of such special circumstance or
event as in the opinion of the Committee merits special consideration.
(b) The Option shall be exercised by the delivery of written notice duly
signed by the Grantee to such effect ("Exercise Notice"), together with the
full purchase price of the Shares purchased pursuant to the exercise of the
Option, to the Chairman of the Board or an officer of the Corporation
appointed by the Chairman of the Board for the purpose of receiving the
same. Payment of the full purchase price shall be made as follows: in cash
or by check payable to the order of the Corporation; by delivery to the
Corporation of Shares which shall be valued at their Fair Market Value on
the date of exercise of the Option; with the consent of the Chairman of the
Board or the officer referred to in the immediately preceding sentence, by
providing with the Exercise Notice an order to a designated broker to sell
part or all of the Shares and to deliver sufficient proceeds to the
Corporation, in cash or by check payable to the order of the Corporation,
to pay the full purchase price of the Shares and all applicable withholding
taxes; or by such other methods as the Committee may permit from time to
time. The provisions of Annex A attached hereto are made a part of this
Agreement as if set forth herein in full.
(c) Within a reasonable time after the exercise of the Option, the
Corporation shall cause to be delivered to the person entitled thereto a
certificate for the Shares purchased pursuant to the exercise of the
Option.
(d) Notwithstanding any other provision of the Option, the Option may not
be exercised at any time when the Option or the granting or exercise
thereof violates any law or governmental order or regulation.
(e) For purposes hereof the term Subsidiary means any corporation 50% or
more of whose stock having general voting power is owned by the Corporation
or by another Subsidiary, as herein defined, of the Corporation.
3. (a) The Option shall be exercisable only by Grantee during Grantee's
lifetime, or, if permissible under applicable law, by Grantee's legal
guardian or representative. The Option may not be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by Grantee
otherwise than by will or by the laws of descent and distribution and any
such purported assignment, alienation, pledge, attachment, sale, transfer
or encumbrance shall be void and unenforceable against the Corporation or
its Subsidiaries; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(b) Notwithstanding the foregoing, the Option may be transferred by
Grantee:
(A) without consideration to any person who is a "family member"
of Grantee, as such term is used in the instructions to Form
S-8 (collectively, the "Immediate Family Members");
(B) without consideration to a trust solely for the benefit of
Grantee and/or his or her Immediate Family Members;
(C) without consideration to a partnership or limited liability
company whose only partners or shareholders are Grantee
and/or his or her Immediate Family Members; or
(D) with or without consideration to any other transferee as may
be approved by the Board of Directors or the Committee in
its sole discretion;
(each transferee described in clauses (A), (B), (C) and (D) above is
hereinafter referred to as a "Permitted Transferee"); provided that Grantee
gives the Committee advance written notice describing the terms and
conditions of the proposed transfer and the Committee notifies Grantee in
writing that such a transfer is approved.
(c) If the Option is transferred in accordance with the immediately
preceding sentence, the terms of the Option shall apply to the Permitted
Transferee and any reference herein to a Grantee shall be deemed to refer
to the Permitted Transferee, except that (a) a Permitted Transferee shall
not be entitled to transfer the Option, other than by will or the laws of
descent and distribution; (b) a Permitted Transferee shall not be entitled
to exercise the Option unless there shall be in effect a registration
statement on an appropriate form covering the shares to be acquired
pursuant to the exercise of such Option if the Committee determines that
such a registration statement is necessary or appropriate, (c) the
Committee or the Corporation shall not be required to provide any notice to
a Permitted Transferee, whether or not such notice is or would otherwise
have been required to be given to Grantee, and (d) the consequences of
termination of Grantee's employment by, or services to, the Corporation or
Subsidiary hereunder shall continue to be applied with respect to Grantee
following which the Option shall be exercisable by the Permitted Transferee
only to the extent, and for the periods, specified herein that the Option
could otherwise have been exercised by the Grantee.
4. All or any part of the Option, to the extent unexercised, shall terminate
immediately, upon the termination for Cause by the Corporation of the
Grantee's employment by the Corporation or upon the termination without
Good Reason by the Grantee of the Grantee's employment by the Corporation
except that in either such case the Grantee shall have until the end of the
three-month period following the cessation of his employment with the
Corporation to exercise any unexercised part of the Option that he could
have exercised on the day on which such employment terminated; provided,
that such exercise must be accomplished prior to the expiration of the term
of such Option. Notwithstanding the foregoing, if the cessation of
employment is due to Grantee's retirement on or after he attains age 65
("Retirement") or disability (to the extent and in a manner as shall be
determined in each case by the Committee in its sole discretion) or death,
the Grantee (or the representative of the estate of the Grantee, if
deceased), may exercise the portion of the Option which is unexercised at
the time of such Retirement, disability or death; provided, however, that
such exercise must be accomplished prior to the expiration of the term of
the Option and (a) unless the Committee determines a longer period, within
three months of the Grantee's Retirement or disability or (b) unless the
Committee determines a longer period, within six months of the Grantee's
death.
5. (a) If prior to the complete exercise of the Option there shall be declared
and paid a stock dividend upon the Shares or if the Shares shall be split
up, converted, exchanged, reclassified, or in any way substituted for, then
the Option, to the extent that it has not been exercised, shall entitle the
Grantee upon the future exercise of the Option to such number and kind of
securities or cash or other property subject to the terms of the Option to
which he would have been entitled had he actually owned the Shares subject
to the unexercised portion of the Option at the time of the occurrence of
such stock dividend, split-up, conversion, exchange, reclassification or
substitution, and the aggregate purchase price upon the future exercise of
the Option shall be the same as if the originally optioned Shares were
being purchased hereunder.
(b) Any fractional shares or securities issuable upon the exercise of the
Option as a result of such adjustment shall be payable in cash based upon
the Fair Market Value of such shares or securities at the time of such
exercise. If any such event should occur, the number of Shares with respect
to which the Option remains to be issued shall be adjusted in a similar
manner.
(c) Notwithstanding the foregoing, upon the dissolution or liquidation of
the Corporation, or the occurrence of a merger or consolidation in which
the Corporation is not the surviving corporation, or in which the
Corporation becomes a subsidiary of another corporation or in which the
voting securities of the Corporation outstanding immediately prior thereto
do not continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of
the combined voting securities of the Corporation or such surviving entity
immediately after such merger or consolidation, or upon the sale of all or
substantially all of the assets of the Corporation, the Option shall
terminate unless provision is made by the Corporation in connection with
such transaction for the assumption of the Option, or the substitution for
the Option of new options of the successor corporation or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kinds
of shares and the per share exercise prices. In the event the Option
terminates as aforesaid in connection with such a dissolution, liquidation,
merger, consolidation or sale, the holder of the Option shall be entitled
to receive from the Corporation cash in an amount equal to the excess of
(i) the Fair Market Value (determined on the basis of the amount received
by shareholders in connection with such transaction) of the Shares subject
to the portion of the Option not theretofore exercised (whether or not the
Option is then exercisable pursuant to its terms or otherwise), over (ii)
the aggregate purchase price which would be payable for such Shares upon
the exercise of the Option. In the event of any other change in the
corporate structure or outstanding Shares, the Committee may make such
equitable adjustments to the number of Shares and the class of shares
available under the Option as it shall deem appropriate to prevent dilution
or enlargement of rights.
(d) For purposes hereof the term Fair Market Value of a security on a
specified date shall mean the closing price at which such security is
traded on the stock exchange, if any, on which such security is primarily
traded or, if such security is not then traded on a stock exchange, the
closing price of such security as reported on the NASDAQ National Market
System or, if such security is not then traded on the NASDAQ National
Market System, the average of the closing bid and asked prices at which
such security is traded on the over-the-counter market, but if no such
security was traded on such date, then on the last previous date on which
such security was so traded, or, if none of the above is applicable, the
value of such security as established by the Committee for such date using
any reasonable method of valuation.
6. The Corporation may postpone the issuance and delivery of Shares pursuant
to the grant or exercise of the Option until (a) the admission of such
Shares to listing on any stock exchange on which Shares of the Corporation
of the same class are then listed, and (b) the completion of such
registration or other qualification of such Shares under any State or
Federal law, rule or regulation as the Corporation shall determine to be
necessary or advisable. The Grantee shall make such representations and
furnish such information as may, in the opinion of counsel for the
Corporation, be appropriate to permit the Corporation, in the light of the
then existence or non-existence with respect to such Shares of an effective
Registration Statement under the Securities Act of 1933, as from time to
time amended (the "Securities Act"), to issue the Shares in compliance with
the provisions of the Securities Act or any comparable federal or state
laws. The Corporation shall have the right, in its sole discretion, to
legend any Shares which may be issued pursuant to the grant or exercise of
the Option, or may issue stop transfer orders in respect thereof.
7. If the Corporation or a Subsidiary shall be required to withhold any
amounts by reason of any Federal, State or local tax rules or regulations
in respect of the issuance of Shares pursuant to the exercise of the
Option, the Corporation or the Subsidiary shall be entitled to deduct and
withhold such amounts from any cash payments to be made to the Grantee. In
any event, the Grantee shall make available to the Corporation or
Subsidiary, promptly when requested by the Corporation or such Subsidiary,
sufficient funds to meet the requirements of such withholding; and the
Corporation or Subsidiary shall be entitled to take and authorize such
steps as it may deem advisable in order to have such funds made available
to the Corporation or Subsidiary out of any funds or property due or to
become due to the holder of such Option.
8. Nothing contained herein shall be construed to confer on the Grantee any
right to be continued in the employ of the Corporation or any Subsidiary or
derogate from any right of the Corporation or any Subsidiary to retire,
request the resignation of or discharge the Grantee (without or with pay)
at any time, with or without cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EMCOR GROUP, INC.
By:
_________________________________
Anthony Guzzi, Grantee
Annex A
STOCK OPTION DEFERRALS
This Annex A is made a part of this Stock Option Agreement dated as of
___________, 2004 between the Corporation and the Grantee. The Grantee (as
defined in the Stock Option Agreement) may elect (the "Deferral Election"), by
completing and signing the Stock Option Deferral Election Form attached as
Exhibit 1 (the "Election Form") hereto, to defer delivery of Common Stock of the
Corporation ("Stock") otherwise deliverable upon exercise of the Option to the
delivery date(s) specified in the Election Form, subject to the following rules.
1. Timing. The Deferral Election may only be made for an exercise of the
Option which occurs while the Grantee is employed by the Corporation or any
of its subsidiaries, and shall apply only to that exercisable portion of
the Option that has not been exercised as of the Election Date, as
specified in the Election Form. The exercise of the portion of the Option
subject to the Deferral Election may occur at any time after the period
referred to in Section 2 below, in accordance with the terms and conditions
of the Stock Option Agreement.
2. Restriction on Exercisability. The portion of the Option subject to the
Deferral Election shall not be exercisable during the period beginning with
the Election Date and ending on the day immediately prior to the six-month
anniversary of the Election Date (or if there is no corresponding date in
the sixth calendar month after the Election Date, the six-month anniversary
shall be deemed to be the first day of the seventh calendar month after the
Election Date); provided, however, that, if, prior to such six-month
anniversary, either (i) the Grantee's employment with the Corporation and
all of its subsidiaries terminates for any reason or (ii) the Compensation
Committee of the Board of Directors of the Company (the "Committee") so
determines, then the restriction set forth in the preceding portion of this
Section 2 shall be canceled, and the portion of the Option which had been
subject to the Deferral Election shall become exercisable (to the extent
that it would have otherwise have been exercisable in the absence of such
restriction).
3. Method of Exercise to Defer. The portion of the Option subject to the
deferral election shall be exercised in accordance with the terms of the
Stock Option Agreement; provided that the exercise price must be paid by
the Grantee in shares of Stock which are considered "mature" for purposes
of generally accepted accounting principles, i.e., (x) they have been held
by the Grantee free and clear for at least six months prior to their use to
pay the Option purchase price (y) they have been purchased by the Grantee
in other than a compensatory transaction, or (z) they meet any other
requirements for "mature" shares as may exist on the date of exercise, as
determined by the Committee (as the term is defined in the Stock Option
Agreement). The Grantee may use Common Stock in payment of the exercise
price by means of attestation to the Corporation of his ownership of
sufficient shares in a manner reasonably acceptable to the Committee.
Shares of Common Stock used to pay all or part of the Option purchase price
pursuant to this provision will be credited at their fair market value on
the date of delivery. Subject to any action required of the Corporation by
any law or regulation and to the Grantee's payment to the Corporation of
the amount of any required tax or other withholding as described in Section
7 below, the Corporation shall, as soon as practicable after the exercise,
return to the Grantee the Common Stock previously delivered to satisfy the
Option purchase price (unless such exercise was accomplished by means of
the attestation mechanism described above).
4. Deferral Account. A number of units equal to the number of shares of Common
Stock otherwise deliverable to the Grantee from the exercise of the portion
of the Option subject to the Deferral Election, less that number of shares
of Common Stock used to exercise such portion of the Option pursuant to
Section 3 hereof, shall be credited to a "deferral account" on behalf of
the Grantee. The Grantee's deferral account shall be a bookkeeping account
only.
5. Delivery of Deferred Stock. Subject to any action required of the
Corporation by any law or regulation and to the Grantee's payment of the
Corporation of the amount of any required tax or other withholding, the
Corporation shall deliver to the Grantee on each "Deferred Delivery Date"
(as defined in the following sentence) a certificate representing a number
of shares of Common Stock equal to (i) the number of units credited to the
Grantee's deferral account, divided by (ii) the number of Deferred Delivery
Dates indicated in the Election Form, subject to withholding in accordance
with Section 7 below, if applicable. The "Deferred Delivery Date" shall be
the date or dates selected by the Grantee in the Election Form; provided
that if a Grantee elects multiple Deferred Delivery Dates, (A) each must be
an anniversary of the first Deferred Delivery Date and (B) there may no
more than ten Deferred Delivery Dates. The number of shares of Common Stock
delivered to the Grantee shall reduce by the same number the units credited
to the Grantee's deferral account.
6. Rights of Grantee. Following exercise of the portion of the Option subject
to the Deferral Election and prior to the delivery of any shares of Common
Stock related thereto on a Deferred Delivery date, (a) the Grantee shall
not be treated as owner of such shares, shall not have any rights as a
shareholder as to such shares, and shall have only a contractual right to
receive such shares, unsecured by any assets of the Corporation or its
subsidiaries; (b) the Grantee's right to receive such shares may not be
transferred by the Grantee other than by will or the laws of descent and
distribution; and (c) the Grantee's right to receive such shares will be
subject to adjustment as set forth in Section 5 of the Stock Option
Agreement, relating to stock splits, stock dividends, stock changes and
similar events.
7. Tax Withhholding. The Grantee shall be responsible for satisfying such tax
withholding as may be required (i) at the time of exercise of the portion
of the Option subject to the deferral election and (ii) at the time of
delivery of Common Stock on a Deferred Delivery Date, by delivery of a
check to the Corporation in the amount due for such withholding; provided
that the Committee may, at its sole discretion, with respect to the
delivery of Common Stock on a Deferred Delivery Date, allow the Grantee to
satisfy any required withholding by electing to have the necessary number
of shares of Stock withheld by the Corporation.
8. Administration. A Deferral Election is subject to such additional
administrative rules as the Committee may establish from time to time.
9. Revocation and Hardship Payment. Subject to Section 2 hereof, a Deferral
Election may not be revoked by the Grantee. The Committee may, in its sole
discretion, accelerate the Deferred Delivery Date with respect to shares of
Common Stock in the event of (i) an "unforeseeable emergency," (ii) the
death or disability of the Grantee or (iii) the Committee's determination
that continuing to honor the Deferral Election is no longer in the best
interest of the Corporation. An "unforeseeable emergency" is defined as an
unanticipated emergency caused by an event beyond the control of the
Grantee that would result in severe financial hardship if the distribution
were not permitted. The Deferred Delivery Date may be accelerated only as
to that number of shares of Stock necessary to sufficiently address the
financial hardship.
10. Assignability. No rights to a Grantee's deferral account may be assigned or
subject to any encumbrance, pledge, or charge of any nature, except that a
Grantee may designate a beneficiary pursuant to any rules established by
the Committee.
EXHIBIT I
STOCK OPTION DEFERRAL ELECTION FORM
1. Grantee: ____________________ [TYPE NAME]
2. Election Date (date this form is submitted to the Corporation):
_____________
3. Grant date of Option subject to this Deferral Election: ____________
4. Number of shares of Common Stock subject to the unexercised portion of the
Option to which this Deferral Election relates [CHECK ONE]:
: All ___________ Shares
: ___________ Shares, being less than all Shares
5. Deferred Delivery Date
Subject to the terms of "Annex A" (to which this Deferral Election
Form is attached): [CHECK ONE]
: I want delivery of my deferred Common Stock to commence upon my
termination of employment
: I want delivery of my deferred Common Stock to commence upon a
particular date, which is written here: _____
6. Number of Deferred Delivery Dates [CHECK ONE]:
: One [this means you will receive 100% of your deferred Common Stock
on the Deferred Delivery Date specified in Item 5 above, subject
to applicable withholding]
: ______ [MUST BE A WHOLE NUMBER MORE THAN ONE AND NO GREATER THAN
TEN[ [this means that you will receive an equal number of shares
of your deferred Common Stock on the date specified in Item 5 above,
and each of the specified number of anniversaries of that date,
subject to applicable withholding]
BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS
DEFERRAL ELECTION FORM, AS WELL AS `"ANNEX A" TO WHICH IT IS ATTACHED,
PARTICULARLY, YOU UNDERSTAND THAT YOUR ELECTION IS IRREVOCABLE (OTHER THAN AS
SPECIFICALLY STATED IN THE ELECTION FORM), AND THAT YOU CANNOT EXERCISE THE
PORTION OF THE OPTION SUBJECT TO THE ELECTION FOR SIX MONTHS FOLLOWING THE
ELECTION DATE.
EMCOR GROUP, INC.
__________________________ By: _____________________________
Grantee Signature/Date
* The average of the high and low prices of the Company's common stock on the
NYSE on the date as of which this agreement is made.
EXHIBIT B
RESTRICTED SHARE UNIT AGREEMENT
Recipient: Anthony Guzzi Date of Grant: October , 2004
-
Number of RSUs: 25,000
Dates of Vesting of RSUs:
Date Number of RSUs
The first business day immediately following 12,500
the day upon which the Company releases to
the public generally its results for the
fourth quarter of 2004
The first business day immediately following 12,500
the day upon which the Company releases to
the public generally its results for the
fourth quarter of 2005
1. Grant of RSUs. For valuable consideration, receipt of which is hereby
acknowledged, Emcor Group, Inc., a Delaware Corporation (the "Company"),
hereby grants the number of restricted share units ("RSUs") listed above to
the Recipient, on the terms and conditions hereinafter set forth. This
grant is not made pursuant to the terms and conditions of a plan of the
Company. However, for the purpose of certain defined terms expressly
identified hereunder, these RSUs will be treated as if they had been
granted pursuant to the Company's 2003 Management Stock Incentive Plan (the
"Plan"). Each RSU represents the unfunded, unsecured right of the Recipient
to receive a share of common stock of the Company, $.01 par value per share
(a "Share") on the date(s) specified herein.
2. Vesting and Timing of Transfer.
(a) The Recipient will become vested in the RSUs in accordance with the
schedule set forth above.
(b) The Company shall transfer to the Recipient, after an applicable
vesting date, a number of Shares equal to the number of RSUs that
became vested on that vesting date (rounded down, if necessary, to the
next whole share), provided, however, that upon the final transfer of
Shares to the Recipient (i) such number of Shares shall be increased
to the extent necessary to reflect any previous rounding down pursuant
to this sentence, and (ii) in lieu of a fractional Share, the
Recipient shall receive a cash payment equal to the Fair Market Value
(as defined in the Plan, the "Fair Market Value") of such fractional
Share.
(c) Notwithstanding Sections 2(a) and 2(b) of this Agreement, if the
Recipient's employment with the Company and its Affiliates is
terminated due to death or due to "Permanent Disability", voluntary
termination by the Recipient for "Good Reason" or termination of the
Recipient by the Company other than for "Cause", each as defined in
the Recipient's severance agreement, dated as of the date hereof (the
"Severance Agreement"), with the Company, or if there is a "Change of
Control" of the Company, as defined in the Severance Agreement, the
Company shall cause there to be transferred to the Recipient, as soon
as practicable following such termination or Change of Control, as the
case may be, a number of Shares equal to the aggregate number of then
unvested RSUs granted to the Recipient under this Agreement; provided,
however, that upon the transfer of such Shares to the Recipient, in
lieu of a fractional Share, the Recipient shall receive a cash payment
equal to the Fair Market Value of such fractional Share, and provided
further that, in the event of a Change of Control, the Company
reserves the right to satisfy its obligation hereunder in the form of
cash. In the event of the death of the Recipient, the transfer of
Shares under this Section 2(c) shall be made in accordance with the
beneficiary designation form on file with the Company; provided,
however, that, in the absence of any such beneficiary designation
form, the transfer of Shares under this Section 2(c) shall be made to
the person or persons to whom the Recipient's rights under the
Agreement shall pass by will or by the applicable laws of descent and
distribution.
(d) Upon each transfer of Shares in accordance with Sections 2(a), 2(b)
and 2(c) of this Agreement, a number of RSUs equal to the number of
Shares transferred to the Recipient shall be extinguished.
(e) Upon the Recipient's termination of employment for any reason other
than as set forth in Section 2(c) of this Agreement, any unvested RSUs
shall immediately terminate for no further consideration.
3. Dividends. If on any date while RSUs are outstanding hereunder the Company
shall pay any dividend on the Shares (other than a dividend payable in
Shares), the number of RSUs granted to the Recipient shall, as of such
dividend payment date, be increased by a number of RSUs equal to: (a) the
product of (x) the number of RSUs held by the Recipient as of the related
dividend record date, multiplied by (y) the per Share amount of any cash
dividend (or, in the case of any dividend payable in whole or in part other
than in cash, the per Share value of such dividend, as determined in good
faith by the Committee (as defined in the Plan, the "Committee"), divided
by (b) the Fair Market Value of a Share on the payment date of such
dividend. In the case of any dividend declared on Shares that is payable in
the form of Shares, the number of RSUs granted to the Recipient shall be
increased by a number equal to the product of (a) the RSUs that are held by
the Recipient on the related dividend record date, multiplied by (b) the
number of Shares (including any fraction thereof) payable as a dividend on
a Share.
4. Adjustments Upon Certain Events. In the event of any change in the
outstanding Shares by reason of any Share dividend or split,
reorganization, recapitalization, merger, consolidation, spin-off or
combination transaction or exchange of Shares or other similar events
(collectively, an "Adjustment Event"), the Committee shall make an
appropriate and equitable adjustment in the number of RSUs subject to this
Agreement to reflect such Adjustment Event, as determined in good faith by
the Committee. Any such adjustment made by the Committee shall be final and
binding upon the Recipient, the Company and all other interested persons.
5. No Right to Continued Employment. Nothing in this Agreement shall be
construed as giving the Recipient the right to be retained in the employ
of, or in any consulting relationship to, the Company or any affiliate of
the Company. Further, the Company may at any time dismiss the Recipient,
free from any liability or any claim under this Agreement, except as
otherwise expressly provided herein.
6. No Rights of a Shareholder. The Recipient shall not have any rights or
privileges as a shareholder of the Company until the Shares in question
have been registered in the Company's register of shareholders.
7. Legend on Certificates. Any Shares issued or transferred to the Recipient
pursuant to Section 2 of this Agreement shall be subject to such stop
transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such
Shares are listed, and any applicable Federal or state laws or relevant
securities laws of the jurisdiction of the domicile of the Recipient, and
the Committee may cause a legend or legends to be put on any certificates
representing such Shares to make appropriate reference to such
restrictions.
8. Transferability. RSUs may not be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by the Recipient otherwise than
by will or by the laws of descent and distribution, and any purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance
not permitted by this Section 8 shall be void and unenforceable against the
Company or any affiliate of the Company.
9. Withholding. The Recipient may be required to pay to the Company and the
Company shall have the right and is hereby authorized to withhold from any
transfer due under this Agreement or from any compensation or other amount
owing to the Recipient, applicable withholding taxes with respect to any
transfer under this Agreement and to take such action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of
such taxes.
10. Choice of Law. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
11. Signature in Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
EMCOR GROUP, INC.
By: ________________________________
By: ________________________________
Anthony Guzzi, Recipient
EXHIBIT C
AGREEMENT REGARDING
CONFIDENTIAL INFORMATION
This Agreement is made as of October ___, 2004 between EMCOR Group, Inc.
(hereinafter the "Company"), and Anthony Guzzi, 6809 Holleston Circle,
Fayetteville, NY 13066 (hereinafter "Executive").
In consideration of the offer of employment extended by the Company to
Executive, and in accepting such employment, the terms of which are described in
the Letter executed contemporaneously herewith (the "Letter"), Executive hereby
agrees as follows:
1. Prohibition on Using Confidential Information
1.1 Executive recognizes and acknowledges that Confidential
Information (as hereinafter defined) is a valuable and unique asset of the
Company and its affiliated companies, access to and knowledge of which is
essential to the performance of the Executive's duties to the Company.
Except as needed to perform the duties to be required as contemplated by
the Letter or by other job-related responsibilities Executive undertakes,
Executive shall not, during Executive's employment or any time thereafter,
under any circumstances, make use of such Confidential Information for
Executive's own purposes or disclose, in whole or in part, such
Confidential Information to any person, firm, corporation, association, or
other entity ("Other Person") for any reason or purpose whatsoever other
than in furtherance of the Company's business.
1.2 Executive shall, prior to or upon leaving the Company, deliver to
the Company any and all records, items, media of any type (including all
partial or complete copies or duplicates) containing or otherwise relating
to Confidential Information whether prepared or acquired by Executive or
provided to Executive by the Company or any of its affiliated companies.
Executive also acknowledges that all such records, items and media are at
all times and shall remain the property of the Company or its affiliated
companies.
1.3 Confidential information means information disclosed to or known
by Executive as a consequence or through his association with the Company
or its affiliated company, including any information conceived, originated,
discovered, or developed by Executive, which is not generally known to the
public or potential competitors of the Company or its affiliated companies
other than by reason of Executive's acts and which constitutes or relates
to marketing, sales, research, development, or know-how of the Company or
its affiliated companies, including, but not limited to methods of
operation, internal procedures, plans, specifications, drawings, sketches,
lay-outs, purchasing, accounting, customer or contact lists, lists
containing the names, addresses, salary or other personnel information of
employees, engineering and technical data, computer software and hardware
design, similar types information entrusted to the Company by third
parties, or any trade secrets or proprietary materials belonging to the
Company or its affiliated companies.
1.4 Executive shall not acquire any intellectual property rights under
this Agreement or under the terms of Executive's employment with the
Company except the limited right to use as set out above. Executive
acknowledges that, as between the Company and Executive, the Confidential
Information and all related copyrights and other intellectual property
rights, are (and at all times will be) the property of the Company or its
affiliated companies, even if suggestions, comments, and/or ideas made by
Executive are incorporated into the Confidential Information or related
materials during the period of this Agreement.
2. Representations Regarding Obligations to Former Employers.
Executive represents and warrants that Executive is not currently
bound by or a party to any obligation or agreement (whether contained in
any agreement, Executive handbook or offer letter or otherwise) with any
current or former employer that would or could restrict or prohibit
Executive from being employed by the Company or from performing Executive's
duties for the Company. Executive further acknowledges that to the extent
the Executive has an obligation to any current or former employer not to
disclose trade secrets and/or other legally protected confidential
information, Executive intends to honor such obligation at all times while
in the employ of the Company. Specifically, Executive represents and agrees
that Executive has not and will not knowingly use for the benefit of the
Company or its affiliated companies, or disclose to any person employed by
the Company or its affiliated companies, any trade secrets or other legally
protected confidential information of any current or former employer or of
any other third party, and that Executive will not otherwise knowingly
infringe any proprietary right of any third party and that Executive does
not have in Executive's possession or under Executive's control any
documents, records, forms, customers lists or any other "papers" in hard
copy or computer format that belong to Executive's current or former
employer or that have been compiled by Executive while working for any
current or former employer.
3. Enforcement.
If Executive breaches or threatens to breach the terms of this
Agreement, the Company may pursue any remedies it is or may be entitled to
under the law or equity, including injunctive relief. Executive
acknowledges that the Company would be irreparably injured upon Executive's
breach of this Agreement, and it is difficult to ascertain with certainty
the amount of money damages the Company will suffer; provided further,
however, that nothing herein shall preclude the Company from seeking a
recoupment of its actual damages should they be ascertainable.
4. Successors.
This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns and any such successor or assignee
shall be deemed substituted for the Company under the terms of this
Agreement for all purposes. As used herein, "successor" and "assignee"
shall include any person, firm, corporation, or other business entity that
at any time, whether by purchase, merger, or otherwise, directly or
indirectly acquires the stock of the Company or to which the Company
assigns this Agreement by operation of law or otherwise
5. General Provisions.
5.1 This Agreement sets forth the entire understanding of the parties
regarding confidential information. Any amendments must be in writing and
signed by all of the parties hereto. This Agreement is made pursuant to,
and shall be governed, construed, and enforced in all respects and for all
purposes in accordance with the laws of the State of New York.
5.2 In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein and the same shall
be enforceable to the fullest extent permitted by law.
EMCOR Group, Inc.
By _________________________
Name:
Title:
__________________________
Anthony Guzzi
Date:
EXHIBIT D
SEVERANCE AGREEMENT
THIS AGREEMENT made as of October __, 2004, is made by and between EMCOR Group,
Inc., a Delaware corporation (the "Company"), and Anthony Guzzi (the
"Executive").
WHEREAS the Company considers it essential to the best interests of its
stockholders to foster the continuous employment of key management personnel;
and
WHEREAS the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of the Executive
to his assigned duties;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. Defined Terms.
The definitions of capitalized terms used in this Agreement are provided in
Article 20 hereof.
2. Company's Covenants Summarized.
In order to induce the Executive to remain in the employ of the Company and
its consideration of the Executive's covenants set forth in Article 6
hereof, the Company agrees, subject to the terms and conditions hereof, to
pay the Executive the "Severance Payments" described in Article 3 hereof
and the other payments and benefits described herein in the event the
Executive's employment with the Company is terminated under certain
circumstances. No amount or benefit shall be payable under this Agreement
unless there shall have been a termination of the Executive's employment
with the Company, as described in Articles 3, 4 or 5 hereof. This Agreement
shall not be construed as creating an express or implied contract of
employment, and, except as otherwise agreed in writing between the
Executive and the Company, the Executive shall not have any right to be
retained in the employ of the Company and the Company may terminate the
Executive's employment at any time and Executive may terminate his
employment at any time.
3. Severance Payments.
3.01.Subject to Sections 6.04 and 6.05 hereof, the Company shall pay the
Executive the amounts, and provide the benefits, described in this
Article 3 (the "Severance Payments") upon the termination of the
Executive's employment with the Company, unless such termination is by
the Company for Cause, by reason of death or Permanent Disability of
the Executive, or by the Executive without Good Reason.
3.02.In lieu of any further salary payments or bonuses to the Executive
for periods subsequent to the Date of Termination and in lieu of any
severance benefit otherwise payable to the Executive, the Company
shall pay to the Executive (A) two times the Executive's Base Salary
in effect immediately prior to the occurrence of the event or
circumstance upon which the Notice of Termination is based and (B) an
amount equal to Executive's target bonus for the calendar year in
which his employment terminates, multiplied by a fraction, the
numerator of which is number of days in such calendar year the
Executive was an employee of the Company, and the denominator of which
is 365. Subject to the provisions of Sections 6.04 and 6.05, the
amount set forth in clause (A) of the immediately preceding sentence
shall be payable in advance in 8 equal quarterly installments
commencing with the Date of Termination and on each succeeding 90th
day thereafter, and the amount set forth in clause (B) of the
immediately preceding sentence shall be payable on the Date of
Termination.
3.03.In addition to the amounts described in Section 3.02 above, Executive
shall be entitled to receive:
(a) until 18 months from the Date of Termination, Executive (and, to
the extent applicable, Executive's dependents) shall continue to
be covered, at the Company's expense, under the Company's
medical, dental and hospitalization insurance plans and until 12
months from the Date of Termination, Executive shall continue to
be covered, at the Company's expense, under the Company's group
life and accidental death and dismemberment insurance plans;
provided that if Executive is provided with comparable coverage
by a successor employer any such coverage by the Company shall
cease;
(b) all payments to which Executive has vested rights as of the Date
of Termination under any employee benefit, disability, insurance
and similar plans which provide for payments beyond the period of
employment; and
(c) all unpaid amounts, as of the Date of Termination, in respect of
any bonus for any calendar year ending before the calendar year
in which the Date of Termination occurs, which would have been
payable had Executive remained in the Company's employ until such
bonus would have been paid.
4. Permanent Disability.
4.01.The Company may terminate the Executive's employment by reason of his
Permanent Disability, and in such case the compensation to which
Executive is entitled shall be paid through the last day of the month
in which the notice is given. In addition, in such case Executive
shall be entitled to receive:
(a) all unpaid amounts, as of the Date of Termination, in respect of
any bonus for any calendar year ending before the calendar year
in which such termination occurs, which would have been payable
had Executive remained in the Company's employ until the date
such bonus would otherwise have been paid, plus an amount equal
to Executive's target bonus for the calendar year in which his
employment terminates, multiplied by a fraction, the numerator of
which is the number of days in such calendar year the Executive
was an employee of the Company, and the denominator of which is
365;
(b) for 18 months from the Date of Termination , Executive (and, to
the extent applicable, Executive's dependents) shall continue to
be covered, at the Company's expense, under the Company's
medical, dental, hospitalization insurance plans, and until 12
months from the Date of Termination the Executive shall continue
to be covered, at the Company's expense, under the Company's
group life and accidental death and dismemberment insurance
plans; provided that if Executive is provided with comparable
coverage by a successor employer any such coverage by the Company
shall cease; and
(c) all amounts payable under the Company's disability plans, in
accordance with their terms.
4.02.Nothing herein contained shall affect Executive's right to any
benefits that may accrue under the terms of any other Company benefit
plans by reason of the Executive's Permanent Disability.
5. Death.
5.01.In the event of Executive's death while an employee of the Company,
the Executive's estate or designated beneficiaries shall receive (i)
payments of Executive's Base Salary for a period of three months after
the date of death; (ii) all unpaid amounts, as of the date of death,
in respect of any bonus for any calendar year ending before the
calendar year in which such death occurs, which would have been
payable had Executive remained in the Company's employ until the date
such bonus would otherwise have been paid, plus an amount equal to
Executive's target bonus for the calendar year in which his death
occurs, multiplied by a fraction, the numerator of which is the number
of days in such calendar year the Executive was an employee of the
Company, and the denominator of which is 365; and (iii) any death
benefits provided under the employee benefit programs, in accordance
with their terms.
5.02.Nothing herein contained shall affect Executive's rights to any
benefits that may accrue under the terms of any other Company death
benefit plan or life insurance policy or programs by reason of
Executive's death.
6. Confidential Information, Non-Competition, Non-Solicitation, etc.
6.01.Executive hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports,
notes, contracts, lists, and other documents, equipment and other
Confidential Information furnished to or prepared by Executive in the
course of or incident to his employment, belong to the Company and
shall be promptly returned to the Company upon termination of his
employment with the Company. Executive agrees not to disclose to any
person (other than an employee or agent of the Company or any
affiliate of the Company entitled to receive the same) any
Confidential Information relating to the business of the Company and
obtained by him while providing services to the Company, without the
consent of the Board, or until such information ceases to be
confidential.
(a) Upon termination of his employment by the Company, the Executive
shall be deemed to have resigned from all offices and
directorships then held with the Company or any subsidiary or
affiliate thereof.
(b) Executive and the Company shall not (except as required by law)
directly or indirectly make any statement or release any
information, or encourage others to make any statement or release
any information that is designed to embarrass or criticize the
other (or their respective employees, directors or shareholders).
6.02.During the period of the Executive's employment by the Company and for
two years following the Date of Termination, Executive shall not, in
any state in the United States where a member of the Restricted Group
conducts business, directly or indirectly own, manage, operate,
conduct, control or participate as a director, officer, employee,
consultant, partner, or equity owner or otherwise, in the ownership,
management, operation, conduct or control, or accept employment with,
or be connected in any other manner with, any business (a "Business")
that is in competition with any member of the Restricted Group, except
for ownership of no more than 2% of the debt or equity securities of
corporations listed on a registered securities exchange, provided,
however, that a Business shall not be deemed to be in competition with
any members of the Restricted Group if (i) no more than 20% of the
annual consolidated revenues of such Business (based upon its most
recently completed fiscal year) are attributable to one or more
business activities ("Incidental Competitive Activity") that are in
competition with any member of the Restricted Group and (ii) the
Executive is not engaged, directly or indirectly, in such Incidental
Competitive Activity and has no direct or indirect responsibility for,
or oversight of, such Incidental Competitive Activity. Notwithstanding
the foregoing, the provisions of this Section 6.02 shall not apply if
(A) in the case of any Notice of Termination given by the Executive
for Good Reason or (B) in the case of any Notice of Termination given
by the Company without Cause, the Executive prior to the receipt of
any Severance Payments or portion thereof irrevocably and
unconditionally waives in writing the right to receive any Severance
Payments and accompanies such waiver with an executed form of release
attached hereto as Appendix A which release is not thereafter revoked.
6.03.For one year following the Date of Termination, Executive shall not
(without the prior written consent of the Company), either on his or
her own behalf or on behalf of any person, firm or company, directly
or indirectly (a) solicit, encourage or participate in soliciting or
encouraging any customer or supplier of any member of the Restricted
Group, or any other person or entity to terminate (or otherwise
adversely alter) such person or entity's customer, supplier or other
relationship with such member of the Restricted Group, and/or (b) hire
any person who is at the time of the offer of employment, or within
six months prior to such offer was, an employee of any member of the
Restricted Group or encourage or participate in soliciting or
encouraging any employee of any member of the Restricted Group to
terminate (or otherwise adversely alter) such person's employment
relationship with such member of the Restricted Group.
6.04.As a condition of receiving payments and benefits under this
Agreement, the Executive agrees to sign the form of release attached
hereto as Appendix A.
6.05.Executive and the Company agree that the covenants set forth in this
Article 6 are reasonable covenants under the circumstances, and
further agree that, if in the opinion of any court of competent
jurisdiction, such restraint is not reasonable in any respect, this
Agreement shall be deemed modified to the least degree necessary to
make the Agreement reasonable and fully enforceable. Executive agrees
that any breach of the covenants contained in this Article 6 would
irreparably injure the Company. Accordingly, Executive agrees that the
Company may, in addition to pursuing any other remedies it may have in
law or in equity, cease making any payments and/or providing benefits
otherwise required by this Agreement, including those provided for in
Article 3 hereof, and obtain an injunction against Executive from any
court having jurisdiction over the matter restraining any further
violation of this Agreement by Executive.
7. Termination Procedures.
7.01.Any purported termination of the Executive's employment with the
Company (other than by reason of death) shall be communicated by
written Notice of Termination from one party hereto to the other party
hereto in accordance with Article 9 hereof. For purposes of this
Agreement a "Notice of Termination", in the case of termination for
Cause, shall mean delivery to Executive of a copy of a resolution duly
adopted by the Board at a meeting of the Board called and held for
that purpose (after not less than 10 days notice to Executive
("Preliminary Notice") and reasonable opportunity for Executive,
together with the Executive's counsel, to be heard before the Board
prior to such vote) finding, that in good faith opinion of the Board,
Executive was guilty of conduct constituting Cause and specifying the
particulars thereof in detail. The Board shall not later than 30 days
after the receipt of the Preliminary Notice by Executive communicate
its findings to Executive. A failure by the Board to make its finding
of Cause or to communicate its conclusions within such 30-day period
shall be deemed to be a finding that Executive was not guilty of
conduct constituting Cause.
7.02."Date of Termination", with respect to any purported termination of
the Executive's employment, shall mean (a) if the Executive's
employment is terminated for Permanent Disability, thirty (30) days
after the Company shall have given the Executive a Notice of
Termination for disability; provided that the Executive shall not have
returned, within such 30-day period, to the full-time performance of
the Executive's duties, and (b) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of
Termination (which, in the case of a termination by the Company, shall
not be less than thirty (30) days (except in the case of a termination
for Cause) and, in the case of a termination by the Executive, shall
not be less than fifteen (15) days nor more than sixty (60) days,
respectively, from the date such Notice of Termination is given).
8. No Mitigation; Generally No Offset.
The Company agrees that, if the Executive's employment is terminated, the
Executive is not required to seek other employment or to attempt in any way
to reduce any amounts payable to the Executive by the Company pursuant to
Article 3. Further, the amount of any payment or benefit provided for in
Article 4 (other than as provided in Sections 3.03(a) and 4.01(b)) shall
not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against
any amount claimed to be owed by the Executive to the Company or any of its
subsidiaries, or otherwise.
9. Notices. All notices or communications hereunder shall be in writing,
addressed as follows:
to Executive:
Mr. Anthony Guzzi
6809 Holleston Circle
Fayetteville, NY 13066
to Company:
Sheldon I. Cammaker, Esq.
Executive Vice President and General Counsel
EMCOR Group, Inc.
301 Merritt Seven, 6th Floor
Norwalk, CT 06851
Any such notice or communication shall be delivered by hand or sent certified or
registered mail, return receipt requested, postage prepaid, addressed as above
(or to such other address as such party may designate in a notice duly delivered
as described above), and the actual date of delivery or mailing shall determine
the time at which notice was given.
10. Agreement to Perform Necessary Acts.
Each party agrees to perform any further acts and to execute and deliver
any further documents that may be reasonably necessary to carry out the
provisions of this Agreement.
11. Separability; Legal Actions; Legal Fees.
If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability
shall not affect the remaining provisions hereof, which shall remain in
full force and effect. Any controversy or claim arising out of or relating
to this Agreement or the breach of this Agreement that cannot be resolved
by Executive and the Company, including any dispute as to the calculation
of Executive's benefits or any payments hereunder, shall be submitted to
arbitration in New York, New York in accordance with the laws of the State
of New York and the procedures of the American Arbitration Association,
except that if Executive institutes an action relating to this Agreement,
Executive may, at Executive's option, bring that action in any court of
competent jurisdiction. Judgment may be entered on an arbitrator(s)' award
in any court having jurisdiction.
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. Such legal fees shall be
paid or reimbursed by the Company to the Executive from time to time within
five business days following receipt by the Company of copies of bills for
such fees and if the Company fails to make such payment within such five
day period, the Company shall pay the Executive interest thereon at the
rate of 5% per annum. All other expenses relating to any arbitration or
court proceedings shall be paid by the Company.
12. Assignment.
This Agreement shall be binding upon and inure to the benefit of the heirs
and representatives of Executive and the assigns and successors of the
Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by Executive (except by
will or by operation of the laws of intestate succession) or by the Company
(any such purported assignment by either shall be null and void), except
that the Company may assign this Agreement to any successor (whether by
merger, purchase or otherwise) to all or substantially all of the stock,
assets or business of the Company.
13. Amendment; Waiver.
The Agreement may be amended at any time, but only by mutual written
agreement of the parties hereto. Any party may waive compliance by the
other party with any provision hereof, but only by an instrument in writing
executed by the party granting such waiver.
14. Entire Agreement.
Except as otherwise provided in the Change of Control Agreement dated as of
the date hereof between the Company and the Executive and any plans or
programs providing for perquisites, options and/or other equity grants
otherwise provided to the Executive, the terms of this Agreement are
intended by the parties to be the final expression of their agreement with
respect to the employment and/or termination of employment of Executive by
the Company. This Agreement shall not apply at all if the Change of Control
Agreement is applicable to the Executive due to a Change of Control.
15. Death or Incompetence.
In the event of Executive's death or a judicial determination of his
incompetence, reference in this Agreement to Executive shall be deemed,
where appropriate, to refer to his estate or other legal representative.
16. Survivorship.
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations. The provisions of
this Article are in addition to the survivorship provisions of any other
Article of this Agreement.
17. Governing Law.
This Agreement shall be construed, interpreted, and governed in accordance
with the laws of the State of New York without reference to rules relating
to conflicts of law.
18. Withholdings.
The Company shall be entitled to withhold from payment any amount of
withholding required by law.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
will be deemed an original.
20. Definitions.
For purposes of this Agreement, the following terms shall have the meanings
indicated below:
(a) "Base Salary" shall mean the Executive's regular basic annual rate of
compensation prior to any reduction therein under a salary reduction
agreement pursuant to Section 401(k) or Section 125 of the Code, and
shall not include (without limitation) cost of living allowances,
fees, retainers, reimbursements, bonuses, incentive awards, prizes or
similar payments.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" for termination by the Company of the Executive's employment,
shall mean (a) an action by Executive involving willful malfeasance in
connection with his employment which results in material harm to the
Company, (b) a material and continuing breach by Executive of the
terms of this Agreement which breach is not cured within 60 days after
Executive receives written notice from the Company of any such breach
or (c) Executive being convicted of a felony. Termination of Executive
for Cause shall be communicated by a Notice of Termination given
within six months after the Board both (i) had knowledge of conduct or
an event allegedly constituting Cause and (ii) had reason to believe
that such conduct or event could be grounds for Cause. For purposes of
this definition, no act, or failure to act, on the Executive's part
shall be deemed "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the
Company and its subsidiaries.
(d) "Change of Control" shall have that meaning set forth in the Change of
Control Agreement referred to in Article 14 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Company" shall mean EMCOR Group, Inc. and any successor to its
business and/or assets which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(g) "Confidential Information" shall mean non-public information
concerning the financial data, strategic business plans, product
development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential
information of any member of the Restricted Group or the customers of
any member of the Restricted Group, that, in any case, is not
otherwise available to the public (other than by Executive's breach of
the terms hereof).
(h) "Date of Termination" shall have the meaning stated in Section 7.02
hereof.
(i) "Good Reason" for termination by the Executive of the Executive's
employment shall mean the occurrence (without the Executive's express
written consent) of any one of the following acts, or failure to act,
unless, in the case of any act or failure to act described in clause
(1), (2), (3), (4) or (5) below, such act or failure to act is
corrected prior to the Date of Termination specified in the Notice of
Termination by the Executive given in respect thereof:
(1) any reduction by the Company of his authority, duties or
responsibilities as, or any removal of the Executive from the
position of, president and chief operating officer, except in
connection with the termination of the Executive's employment (A)
for Cause, (B) as a result of the Executive's Permanent
Disability (as hereinafter defined) or death or (C) by the
Executive other than for Good Reason;
(2) a reduction by the Company in the Executive's Base Salary as in
effect on the date hereof or as the same may be increased from
time to time except in connection with a similar reduction in
salary that is applicable to all senior executives of the
Company;
(3) the failure by the Company or a subsidiary to pay to the
Executive any portion of the Executive's current compensation
that is already earned and due;
(4) the failure by the Company to obtain the assumption (either
specifically or by operation of law) of this Agreement by any
successor or assign of the Company or any person acquiring
substantially all of the Company's assets; or
(5) the termination of the Indemnity Agreement effective as of the
date hereof between Executive and the Company.
The Executive's continued employment shall not constitute consent to, or a
waiver of rights with respect to, any act or failure to act constituting
Good Reason hereunder, but the Executive shall only be considered to have
terminated employment for "Good Reason" if the Executive gives a Notice of
Termination within 90 days after the Executive becomes aware of the event
or events constituting Good Reason.
(j) "Notice of Termination" shall have the meaning stated in Section 7.01
hereof.
(k) "Permanent Disability" shall be deemed to exist, if, as a result of
the Executive's incapacity due to physical or mental illness, the
Executive shall have been absent from his duties with the Company on a
full-time basis for a period of six (6) consecutive months.
(l) "Restricted Group" shall mean the Company, its subsidiaries and their
affiliates.
(m) "Severance Payments" shall mean those payments described in Article 3
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this amended and
restated employment agreement as of the date first above written.
EMCOR GROUP, INC.
By:
__________________________
EXECUTIVE
__________________________
Anthony Guzzi
APPENDIX A
FORM OF RELEASE
For and in consideration of the payments and other benefits described in the
Severance Agreement dated as of October ___, 2004, between EMCOR Group, Inc.
(the "Company") and me (the "Agreement"), and for other good and valuable
consideration, I hereby release the Company, its divisions, affiliates,
subsidiaries, parents, branches, predecessors, successors, assigns, officers,
directors, trustees, employees, agents, shareholders, administrators,
representatives, attorneys, insurers and fiduciaries, past, present and future
(the "Released Parties") from any and all claims of any kind which I now have or
may have against the Released Parties, whether known or unknown to me, by reason
of facts which have occurred on or prior to the date that I have signed this
Release (except a claim for the payments described in the Agreement). Such
released claims include, without limitation, any and all claims under federal,
state or local laws pertaining to employment, including the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Section 2000e et seq., the Fair Labor Standards Act, as amended, 29
U.S.C. Section 2601 et seq., and Connecticut General Statutes, Section 46a-60 et
seq., and any and all state or local laws regarding employment discrimination
and/or federal, state or local laws of any type or description regarding
employment, including but not limited to any claims arising from or derivative
of my employment with the Company and its subsidiaries, as well as any and all
claims under state contract or tort law.
I have read this Release carefully, acknowledge that I have been given at least
21 days to consider all of its terms, and have been advised to consult with an
attorney and any other advisors of my choice prior to executing this Release,
and I fully understand that by signing below I am voluntarily giving up any
right which I may have to sue or bring any other claims against the Released
Parties, including any rights and claims under the Age Discrimination in
Employment Act. I also understand that I have a period of 7 days after signing
this Release within which to revoke my agreement, and that neither the Company
nor any other person is obligated to make any payments or provide any other
benefits to me pursuant to the attached Agreement until 8 days have passed since
my signing of this Release without my signature having been revoked. Finally, I
have not been forced or pressured in any manner whatsoever to sign this Release,
and I agree to all of its terms voluntarily.
Notwithstanding anything else herein to the contrary, this Release shall not
affect: the obligations of the Company set forth in the Agreement or other
obligations that, by their terms, are to be performed after the date hereof
(including, without limitation, obligations to me under any stock option, stock
award or incentive plans or agreements or litigations under any person plan or
other benefit or deferred compensation plan, all of which shall remain in effect
in accordance with their terms); obligations to indemnify me respecting acts or
omissions in connection with my service as an officer or employee of the company
and its subsidiaries; or any right I may have to obtain contribution in the
event of the entry of judgment against me as a result of any act or failure to
act for which both I and the Company are jointly responsible.
This Release, and the attached Agreement, are final and binding and may not be
changed or modified except in a writing signed by both parties.
EXHIBIT E
CHANGE OF CONTROL AGREEMENT
This Agreement ("Agreement") is made as of October __, 2004, by and between
the EMCOR GROUP, INC., a Delaware corporation (the "Company"), and Anthony Guzzi
(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 change of
control 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 change of
control 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.
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; 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 or (ii) by Executive for Good Reason or (B) prior to a
Change of Control, as a result of an Anticipatory Termination.
Notwithstanding the foregoing, Executive shall not be entitled to severance
benefits in the event of a termination of employment on account of death,
Disability or Retirement, but excluding any such termination which is coincident
with or subsequent to an event constituting Good Reason. 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 and obtain 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 between the Company and the
Executive is pending, the Executive shall continue to receive his
salary (including any Bonus) and benefits as if his employment with
the Company had continued through the date of the final determination
thereof (i.e. after decision following any trial or arbitration
proceeding and after all appeals therefrom or after the time for any
appeal therefrom has run), and any such payments or benefits shall not
be offset against any severance, either under this Agreement or
otherwise, to which Executive may be entitled.
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) an amount equal to the Executive's annual bonus for any calendar
year ending before such termination occurs, which would have been
payable had Executive remained in the Company's employ until the date
such bonus would otherwise have been paid, (C) a pro rata portion of
the Bonus (calculated through the date of termination), and (D) an
amount, if any, equal to compensation previously deferred (excluding
any qualified plan deferral) and any accrued vacation pay, in each
case, in full satisfaction of Executive's rights thereto.
(b) 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. If payments required
pursuant to this subsection to be made by the Company to the Executive
are not made within such five-day period, the Company shall pay the
Executive interest thereon at the rate of 10% per annum.
(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.
If such amounts are not reimbursed to the Executive by the Company
within such five-day period, the Company shall pay the Executive
interest thereon at the rate of 10% per annum.
(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 sue 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 sue 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:
301 Merritt Seven, 6th Floor
Norwalk, CT 06851
Attention: Frank T. MacInnis, 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, arbitration costs,
and attorneys' fees and expenses) , incurred by the Executive in connection
with or as a result of any claim, action or proceeding brought by the
Company or the Executive with respect to or arising out of this Agreement
or any provision hereof; unless, in the case of an action brought by the
Executive, it is determined by an arbitrator or by a court of competent
jurisdiction that such action was frivolous and was not brought in good
faith. If such legal fees shall not be paid or reimbursed by the Company to
the Executive from time to time within such five-day period, the Company
shall pay the Executive interest thereon at the rate of 10% per annum.
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. 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.
15. Entire Agreement.
Except as otherwise provided in a Severance Agreement dated the date hereof
between the Executive and the Company, as the same may be amended from time
to time hereafter, this Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, commitments or
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 ___________________________________________________
Name:__________________________________________________
Title:_________________________________________________
_______________________________________________________
Executive
EXHIBIT F
AGREEMENT, made as of October __, 2004 between EMCOR GROUP, INC., a
Delaware corporation (the "Company"), and Anthony Guzzi (the "Indemnitee").
WHEREAS, Indemnitee is a director or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
public companies in today's environment;
WHEREAS, basic protection against undue risk of personal liability of
directors and officers heretofore has been provided through insurance coverage
providing reasonable protection at reasonable cost, and Indemnitee has relied on
the availability of such coverage; but as a result of substantial changes in the
marketplace for such insurance it has become increasingly more difficult to
obtain such insurance on terms providing reasonable protection at reasonable
cost;
WHEREAS, the By-laws of the Company require the Company to indemnify
expenses to its directors and officers to the full extent permitted-by law and
Indemnitee has been serving and continues to serve as a director or officer of
the Company in part in reliance on such By-laws;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner, and Indemnitee's reliance on the aforesaid
Bylaws, and in part to provide Indemnitee with specific contractual assurance
that the protection afforded by such By-laws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of such
By-laws or any change in the composition of the Company's Board of Directors or
acquisition transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the full extent (whether partial or complete) permitted by law and
as set forth in this Agreement, and, to the extent insurance is maintained, for
the continued coverage of Indemnitee under the Company's directors and officers
liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee's
service to the Company, directly or indirectly, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. In the event Indemnitee was, is or becomes a party to or a witness or other
participant in, or is threatened to be made a party to, or a witness or
other participant in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes might
lead to any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (a "Claim") by reason of (or
arising in part out of) the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of anything
done or not done by Indemnitee in any such capacity (an "Indemnifiable
Event") , the Company shall indemnify Indemnitee, to the fullest extent
permitted by law as soon as practicable but in any event no later than ten
days after written demand is presented to the Company, against any and all
expenses (including attorneys' fees and all other costs, expenses and
obligations paid or incurred by Indemnitee in connection with
investigating, preparing for and defending or participating in the defense
of (including an appeal) any Claim relating to any Indemnifiable Event
actually and reasonably incurred by Indemnitee) (collectively "Expenses"),
judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with
or in respect of such judgments, fines, penalties or amounts paid in
settlement) of such Claim. If so requested by Indemnitee, the Company shall
advance (within ten days of such request) any and all such Expenses to
Indemnitee; provided, however, that if, when and to the extent that an
appropriate person or body (the "Reviewing Party") determines that
Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore
paid and the Company shall cease to advance expenses (unless Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, in which event Indemnitee shall be
entitled to have his expenses advanced and shall not be required to so
reimburse the Company until a final judicial determination requiring such
reimbursement is made with respect thereto as to which all rights of appeal
therefrom have been exhausted or lapsed). If there has not been a Change in
Control of the Company (as hereinafter defined), the Reviewing Party (which
can, but does not have to, be the disinterested members of the Board of
Directors or a committee comprised of one or more disinterested members of
the Board of Directors) shall be selected by the Board of Directors. If
there has been a Change of Control of the Company (other than a Change in
Control which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control) ,
the Reviewing Party shall be the special, independent counsel referred to
in Section 2 hereof. If, by the expiration of the foregoing ten-day period,
Indemnitee has not been indemnified or received expense advances or the
Reviewing Party determines that Indemnitee would not be permitted to be
indemnified or be entitled to expense advances in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation
seeking from the court a finding that Indemnitee is entitled to
indemnification and expense advances or enforcement of Indemnitee's
entitlement to indemnification and expense advances or challenging any
determination by the Reviewing Party or any aspect thereof that Indemnitee
is not entitled to be indemnified or receive expense advances; any
determination by the Reviewing Party otherwise shall be conclusive and
binding on the Company and Indemnitee. Indemnitee agrees to bring any such
litigation in any court in the states of New York, Connecticut, or Delaware
having subject matter jurisdiction thereof and in which venue is proper,
and the Company hereby consents to service of process and to appear in any
such proceeding.
2. The Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately prior to
such Change in Control)then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense
advances under this Agreement or any other agreement or By-laws now or
hereafter in effect relating to Claims for Indemnifiable Events (including
any Claim for Indemnifiable Events arising prior to such Change in
Control), the Company shall seek legal advice only from special,
independent counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld or delayed). Unless
Indemnitee has selected counsel pursuant to this Section 2 and such counsel
has been approved by the Company (which approval shall not be unreasonably
withheld or delayed), the firms in the attached Exhibit A shall be deemed
to satisfy the requirements set forth above. Such counsel, among other
things, shall determine whether and to what extent Indemnitee is permitted
to be indemnified, is entitled to expense advances under applicable law, or
is obligated to reimburse the Company for expenses advanced and shall
render its written opinion to the Company and Indemnitee to such effect.
For purposes of this Agreement, a "Change in Control of the Company" shall
be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, is or becomes the beneficial owner
(as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined voting
power of the Company's then outstanding securities, or (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute
a majority thereof, or (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least 80% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all the
Company's assets. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto except for willful misconduct or gross
negligence.
3. (a) In the event of a Potential Change in Control (as defined below)
which has not ceased to exist, the Company shall, upon written request
by Indemnitee, create a trust for the benefit of Indemnitee and from
time to time upon written request of Indemnitee shall fund such trust
in an amount sufficient to satisfy any and all Expenses reasonably
anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any Claim
relating to an Indemnifiable Event, and any and all judgments, fines,
penalties and settlement amounts of any and all Claims relating to an
Indemnifiable Event from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid. The amount or amounts
to be deposited in the trust pursuant to the foregoing funding
obligation shall be determined by the Reviewing Party, in any case in
which the independent legal counsel referred to above is involved. The
terms of the trust shall provide that upon a Change in Control (i) the
trust shall not be revoked or the principal thereof invaded, without
the written consent of Indemnitee, (ii) the trustee shall advance,
within ten days of a request by Indemnitee, any and all Expenses to
Indemnitee (and Indemnitee hereby agrees to reimburse the trust under
the circumstances under which Indemnitee would be required to
reimburse the Company under Section 1 of this Agreement), (iii) the
trust shall continue to be funded by the Company in accordance with
the funding obligation set forth above, (iv) the trustee shall
promptly pay to Indemnitee all amounts for which Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise,
and (v) all unexpended funds in such trust shall revert to the Company
upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that Indemnitee has been
fully indemnified under the terms of this Agreement. The trustee shall
be a bank organized under the laws of the United States of America or
of any state and having a combined capital surplus of at least
$50,000,000 and shall be chosen by Indemnitee. Nothing in this Section
3 shall relieve the Company of any of its obligations under this
Agreement.
(b) A "Potential Change In Control" shall be deemed to have occurred if
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or to
consider taking actions which if consummated would constitute a Change
in Control; (iii) any person, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, who
is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 9.5% or more of the combined
voting power of the Company's then outstanding voting securities
increases his beneficial ownership of such securities by five
percentage points (5%) or more over the percentage so owned by such
person; or (iv) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has
occurred.
4. In the event the Company shall be obligated hereunder to pay Expenses of
any action, suit or proceeding against Indemnitee, the Company shall be
entitled to assume the defense of such proceeding, with counsel approved by
Indemnitee (such approval not to be unreasonably withheld or delayed) upon
the delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding;
provided that (i) Indemnitee shall have the right to employ his counsel in
any such proceeding at Indemnitee's expense and (ii) if (A) the employment
of counsel by Indemnitee has been previously authorized by the Company,(B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such
defense or (C) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of
Indemnitee's counsel shall be at the expense of the Company.
5. The Company shall indemnify Indemnitee against any and all expenses
(including attorneys' fees) and, if requested by Indemnitee', shall (within
ten days of such request) advance such expenses to Indemnitee, which are
incurred by Indemnitee in connection with any claim asserted or action
brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or
Company By-laws now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors' and
officers' liability insurance policies maintained by the Company,
regardless of whether the Indemnitee ultimately is determined to be
entitled to such indemnification, advance payment of Expenses or insurance
recovery, as the case may be.
6. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses,
judgments, fines, penalties and amounts paid in settlement of a Claim but
not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder the burden of
proof shall be on the Company to establish that Indemnitee is not so
entitled.
7. For purposes of this Agreement, the termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of conduct
or have any particular belief or that a court has determined that
Indemnitee is not entitled to indemnification or expense advance or that
indemnification or expense advance is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did
not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under applicable law shall be a defense to Indemnitee's claim
or create a presumption that Indemnitee has not met any particular standard
of conduct or did not have any particular belief.
8. The rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Company's By-laws as in effect on the date of
this Agreement or the Delaware General Corporation Law or otherwise. To the
extent a change in the Delaware General Corporation Law (whether by statute
or judicial decision) permits greater indemnification by agreement than
would be afforded currently under the Company's By-laws and this Agreement,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change.
9. Indemnitee shall notify the Company in writing of the institution of any
action, suit, proceeding, inquiry or investigation that is or may be
subject to this Agreement. Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be
within Indemnitee's power. No legal action under this Agreement shall be
brought and no cause of action under this Agreement shall be asserted by or
in the right of the Company against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, and any claim or
cause of action of the Company under this Agreement shall be extinguished
and deemed released unless asserted by the timely filing of a legal action
within such two-year period; provided, however, that, if any shorter
period-of limitations is otherwise applicable to any such cause of action,
such shorter period shall govern.
10. To the extent the Company maintains an insurance policy or policies
providing directors' and officers' liability insurance, Indemnitee shall be
covered by such policy or policies, in accordance with its or their terms,
to the maximum extent of the coverage available for any Company director or
officer.
11. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall
such waiver constitute a continuing waiver.
12. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
13. The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance Policy,
By-laws or otherwise) of the amounts otherwise indemnifiable hereunder.
14. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, executors and personal and
legal representatives. This Agreement shall continue in effect regardless
of whether Indemnitee continues to serve as an officer or director of the
Company or of any other enterprise at the Company's request.
15. The provisions of this Agreement shall be severable in the event that any
of the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the fullest extent permitted by law.
16. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state, but excluding any conflicts of law,
rule or principle which might refer such governance, construction or
enforcement to the laws of another state or country.
EMCOR GROUP, INC.
By: _________________________
Frank T. MacInnis
Chairman, President and
Chief Executive Officer
_________________________
Anthony Guzzi
EXHIBIT A
Milbank, Tweed, Hadley & McCloy
Paul, Weiss, Rifkind, Wharton & Garrison
Schulte Roth & Zabel
Simpson Thacher & Bartlett
Skadden, Arps, Slate, Meagher & Flom
Stroock & Stroock & Lavan
Exhibit 99.1
EMCOR GROUP, INC. APPOINTS ANTHONY GUZZI AS
PRESIDENT AND CHIEF OPERATING OFFICER
NORWALK, CONNECTICUT, October 13, 2004 -- EMCOR Group, Inc. (NYSE: EME) today
announced that Anthony J. Guzzi will become the Company's President and Chief
Operating Officer, effective October 25, 2004. Frank T. MacInnis will remain as
Chairman of the Board and Chief Executive Officer of the Company.
As President and Chief Operating Officer, Mr. Guzzi, age 40, will be responsible
for the day-to-day operations of the Company and will report directly to Mr.
MacInnis.
From 1997 to the present, Mr. Guzzi held a variety of senior leadership
positions at United Technologies Corporation (NYSE: UTX) and its subsidiary
Carrier Corporation, the world's leading manufacturer and distributor of
commercial and residential HVAC and refrigeration systems and equipment. While
at Carrier, Mr. Guzzi successfully carried out major programs in a number of
different areas, including initiatives to increase market share, reduce
operating costs, improve financial performance, and evaluate and execute
strategic acquisitions. Since 2001 he has been President of Carrier's North
American Parts, Distribution and Services division with annual revenues of $2.6
billion.
"Tony's proven leadership qualities and passion for operational excellence make
him an excellent choice for EMCOR Group", stated Frank MacInnis. "EMCOR
continues to set new standards in offering an unmatched array of services to
customers, anytime and anywhere. Tony's broad experience in meeting and
exceeding customer and market requirements is aligned with our strategy. We
expect his industry knowledge and customer relationships to pay immediate and
long-term dividends as we continue to develop our unique service model and
blue-chip customer list. I look forward to working with Tony and the rest of our
talented management team to build value for our shareholders."
From 1993 to 1996, Mr. Guzzi was an Engagement Manager at McKinsey & Company,
Inc. From 1986 to 1991, he served in the U.S. Army as a Light Infantry Captain
and is Ranger qualified. Mr. Guzzi received a B.S. in Civil Engineering and
Economics from the United States Military Academy (West Point) in 1986. He
received an M.B.A. from Harvard Business School in 1993.
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EMCOR Group Appoints Anthony Guzzi as President and COO Page 2
In accordance with New York Stock Exchange rules, the Company reported that upon
commencement of his employment with the Company, Mr. Guzzi will be granted
25,000 restricted stock units (the "RSUs") and an option (the "Options") to
purchase 30,000 shares of the common stock of the Company (the "Common Stock").
One-half of the RSUs will vest on the first business day immediately following
the day upon which the Company releases to the public its results for the fourth
quarter of each of 2004 and 2005, respectively, entitling him to receive 12,500
shares of Common Stock on each such date. The Options will have an exercise
price per share equal to the fair market value of a share of Common Stock on the
date of grant and a ten-year term. One-third of the Options will become
exercisable on each of the first, second and third anniversaries of the grant
date. In the event Mr. Guzzi's employment is terminated by the Company without
cause or is terminated by him for good reason, then all unvested RSUs will
become vested and converted into shares of Common Stock, and all unvested
Options will become vested and may be exercised for a period of two years from
the date of such termination.
EMCOR Group, Inc. is a worldwide leader in mechanical and electrical
construction services and facilities services. This press release and other
press releases may be viewed at the Company's Web site at www.emcorgroup.com.
This release may include "forward looking statements." These statements are
based on certain assumptions and analyses made by the Company in light of its
experience and its perception of historical trends, current conditions, expected
future developments and other factors it believes are appropriate. Such
statements are subject to a number of assumptions, risks and uncertainties,
general economic and business conditions, business opportunities that may be
presented to and pursued by the Company and other factors, many of which are
beyond the control of the Company. Actual results may differ materially from
those anticipated in the statements.
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