As filed with the Securities and Exchange Commission on April 19, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EMCOR Group, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2125338
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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101 MERRITT SEVEN CORPORATE PARK
NORWALK, CT 06851-1060
(203) 849-7800
(Address of Principal Executive Offices)
EMCOR GROUP, INC. STOCK OPTION AGREEMENTS
DATED AS OF JANUARY 4, 1999, FEBRUARY 23, 1999,
JANUARY 3, 2000, MARCH 3, 2000, JANUARY 2, 2001 AND
DECEMBER 17, 2001
(Full titles of the plans)
FRANK T. MACINNIS
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER
EMCOR GROUP, INC.
101 MERRITT SEVEN CORPORATE PARK
NORWALK, CT 06851-1060
(203) 849-7800
(Name, address, telephone number, including area code, of agent for service)
with a copy to:
SHELDON I. CAMMAKER, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
EMCOR GROUP, INC.
101 MERRITT SEVEN CORPORATE PARK
NORWALK, CT 06851-1060
(203) 849-7800
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Registered(1)(2) Price Aggregate Offering Price(1) Registration Fee
Per Share(1)
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Common Stock, par value $0.01 90,000 shares $ 41.71 $ 3,705,300 $ 341
per share..................
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(1) Options to purchase 90,000 shares have been granted to certain
employees of EMCOR Group, Inc. at exercise prices ranging from $16.19
to $41.71 per share. Pursuant to Rule 457(h) of the Securities Act of
1933, as amended, the offering price for such shares is estimated
solely for the purpose of computing the registration fee.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers an additional indeterminate number
of shares that may become issuable pursuant to the anti-dilution
provisions of the options.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 are not required to be filed with the Securities and Exchange Commission
either as part of this registration statement or as prospectuses or prospectus
supplements pursuant to the Note to Part I of Form S-8 and rule 424 under the
Securities Act of 1933, as amended. The information required in the Section
10(a) prospectus is included in documents being maintained and delivered by
EMCOR Group, Inc. as required by Part I of Form S-8 and by Rule 428 under the
Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been and will in the future be filed
by us with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, which contains our audited financial
statements for the fiscal year ended December 31, 2001.
2. All other reports filed by the Company filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since December 31,
2001.
3. The description of our common shares contained in our
Registration Statement on Form 10-12G/A under the Exchange
Act, as filed with the Securities and Exchange Commission on
August 11, 1995 (File No. 0-2315), including any amendment or
report filed for the purpose of amending such description.
In addition, all reports and documents filed by us under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities being offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in and to be part of this Registration Statement from
the filing date of each such document.
Any statement contained in a document incorporated by reference or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Sheldon I. Cammaker, our Executive Vice President, General Counsel and
Secretary, has provided an opinion to us as to the validity of the shares of our
common stock being registered by this Registration Statement on Form S-8. Mr.
Cammaker has been granted options to purchase shares of our common stock under
certain of our employee benefit plans and programs and is entitled to shares of
our common stock to be issued in the future under the terms of our Executive
Stock Bonus Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Restated Certificate of Incorporation provides, as do the charters
of many other publicly held companies, that the personal liability of our
directors to us is eliminated to the maximum extent permitted by the Delaware
General Corporation Law. Our Restated Certificate of Incorporation and By-Laws
provide for the indemnification of our directors, officers, employees, and
agents to the fullest extent that may be permitted by the Delaware General
Corporation Law from time to time, and the By-Laws provide for various
procedures relating thereto. Certain provisions of our Restated Certificate of
Incorporation protect our directors against personal liability for monetary
damages resulting from breaches of their fiduciary duty as a director, except as
set forth below. Under the Delaware General Corporation Law, absent these
provisions, directors could be held liable for gross negligence in the
performance of their duty of care, but not for simple negligence. Our Restated
Certificate of Incorporation absolves directors of liability for negligence in
the performance of their duties, including gross negligence. However, our
directors remain liable for breaches of their duty of loyalty to us and our
stockholders, as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and transactions
from which a director derives improper personal benefit. Our Restated
Certificate of Incorporation also does not absolve directors of liability under
section 174 of the Delaware General Corporation Law, which makes directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions in certain circumstances and expressly sets forth a negligence
standards with respect to such liability.
Under the Delaware General Corporation Law, directors, officers,
employees and other individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation (a "derivative action")) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to our best interest and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful. A similar standard of care is applicable in the case
of a derivative action, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with the defense or
settlement of such an action and the Delaware General Corporation Law requires
court approval before there can be any indemnification of expenses where the
person seeking indemnification has been found liable to us.
Our Restated Certificate of Incorporation and By-laws provide, among
other things, that each person who was or is made a party to, or is threatened
to be made a party to, any pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of ours), by reason of the fact that he or she is or was a
director or officer of us (or was serving at our request as a director, officer,
employee, or agent for another entity, including an employee benefit plan), will
be indemnified and held harmless by us to the fullest extent authorized by the
Delaware General Corporation Law against all expense, liability, or loss
(including attorneys' fees, judgments, fines, and amounts to be paid in
settlement) reasonably incurred by such person in connection therewith. The
rights conferred thereby will be deemed to be contract rights and will include
the rights to be paid by us for the expenses incurred in defending the
proceedings specified above in advance of their final disposition.
We are a party to an indemnification agreement with each of our
directors and officers. These indemnification agreements provide for, among
other things, the indemnification by us of
our directors and officers to the fullest extent permitted by law and the
advancement of attorneys' fees and expenses. The agreements also state that in
the event of a potential change in control, we shall establish trusts, which are
irrevocable except upon the indemnitees' written consent, to fund our
indemnification obligations thereunder.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors
and officers and persons controlling us pursuant to the above provisions, we
have been advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. We carry certain insurance
coverage, in respect of potential claims against our directors and officers and
in respect of losses of which we may be required or permitted by law to
indemnify such directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
A list of exhibits included as part of this registration statement is
set forth in the Exhibit Index which immediately precedes such exhibits and is
hereby incorporated by reference herein.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which is registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement;
and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the
registrant pursuant to Section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Norwalk, State of Connecticut on April 19, 2002.
EMCOR GROUP, INC.
By: /s/ Frank T. MacInnis
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Name: Frank T. MacInnis
Title: Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
The Registrant and each director and officer of the Registrant whose
signature appears below, constitutes and appoints Frank T. MacInnis, Sheldon I.
Cammaker and Leicle E. Chesser, or any of them, his or her true and lawful
attorneys-in-fact and agents, each of whom may act alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post-effective amendments, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, and hereby ratifies and confirms all his or her said
attorneys-in-fact and agents or any of them or his or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement, or amendment thereto, has been signed below by the
following persons in the capacities as of 19th day of April, 2002.
SIGNATURE TITLE
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/s/ Frank T. MacInnis Chairman of the Board and Chief
----------------------------- Executive Officer
Frank T. MacInnis (Principal Executive Officer)
/s/ Leicle E. Chesser Executive Vice President and Chief
----------------------------- Financial Officer (Principal Financial
Leicle E. Chesser Officer)
/s/ Mark A. Pompa Vice President and Controller
----------------------------- (Principal Accounting Officer)
Mark A. Pompa
/s/ Stephen W. Bershad Director
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Stephen W. Bershad
/s/ David A.B. Brown Director
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David A.B. Brown
/s/ Albert Fried, Jr. Director
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Albert Fried, Jr.
/s/ Richard F. Hamm, Jr. Director
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Richard F. Hamm, Jr.
/s/ Kevin C. Toner Director
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Kevin C. Toner
EXHIBIT INDEX
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EXHIBITS
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4.1 Form of EMCOR Option Agreement
4.2 Form of EMCOR Option Agreement
5.1 Opinion of Sheldon I. Cammaker, Esq.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Sheldon I. Cammaker, Esq. (included in Exhibit
5.1).
25.1 Powers of Attorney (included on the signature page of this
Registration Statement).