As filed with the Securities and Exchange Commission on February 18, 2004
Registration No. 333-_____
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UNITED STATES 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.)
301 MERRITT SEVEN CORPORATE PARK
NORWALK, CT 06851-1060
(203) 849-7800
(Address of Principal Executive Offices)
EMCOR GROUP, INC. EXECUTIVE STOCK BONUS PLAN
STOCK OPTION AGREEMENTS DATED AS OF JANUARY 4, 1999,
MAY 5, 1999, JANUARY 3, 2000, JANUARY 2, 2001, DECEMBER 14, 2001,
JANUARY 2, 2002, JUNE 19, 2002, OCTOBER 25, 2002, JANUARY 2, 2003,
FEBRUARY 27, 2003 AND JANUARY 2, 2004
2003 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
2003 MANAGEMENT STOCK INCENTIVE PLAN
(Full titles of the plans)
FRANK T. MACINNIS
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
EMCOR GROUP, INC.
301 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, GENERAL COUNSEL AND SECRETARY
EMCOR GROUP, INC.
301 MERRITT SEVEN CORPORATE PARK
NORWALK, CT 06851-1060
(203) 849-7800
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 PER SHARE(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
------------------------------- ---------------------- ---------------------------- ----------------------------- ------------------
Common Stock, par value $0.01
per share.................. 1,744,533 shares $41.25 $71,961,987 $9,120
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(1) Includes an aggregate of 1,074,533 shares issuable to directors and
executive officers of EMCOR Group, Inc. pursuant to the exercise of
stock options granted other than under equity based plans, 120,000
shares issuable to directors pursuant to the exercise of stock options
to be granted under the 2003 Non-Employee Directors' Stock Option Plan,
330,000 shares issuable under the 2003 Management Stock Incentive Plan,
and 220,000 shares issuable under the Executive Stock Bonus Plan, as
amended. Pursuant to Rule 457(h) of the Securities Act, the offering
price for such shares is estimated solely for the purpose of computing
the registration fee and is based on the closing price of our common
stock on February 17, 2004, $41.25, as reported on the New York Stock
Exchange (a date within five business days of the filing of this
Registration Statement).
(2) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also covers an additional indeterminate number of shares that
may become issuable pursuant to the anti-dilution provisions of the
EMCOR Group, Inc. Executive Stock Bonus Plan, as amended, the 2003
Non-Employee Directors' Stock Option Plan and the 2003 Management Stock
Incentive Plan and/or the terms of the option agreements other than
under equity based plans.
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
(the "SEC") 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 "Securities Act"). The
information regarding each Plan 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.
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 SEC are incorporated in this Registration Statement by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2002, as amended by Form 10-K/As filed on March
6, 2003 and March 22, 2003, which contains our audited
financial statements for the fiscal year ended December 31,
2002.
2. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since December 31, 2002.
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 SEC 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 subsequently filed by us under
Section 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 (a) is entitled to shares of our common stock to be issued under our
EMCOR Group, Inc. Executive Stock Bonus Plan, as amended (b) has been granted
options to purchase shares of our common stock that may be issued pursuant to
option agreements, which shares are a portion of the shares being registered
pursuant to this registration statement, (c) has been granted options to
purchase shares of our common stock
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under our 1994 Management Stock Option Plan, and (d) may be awarded shares,
other awards, or options to purchase shares under the 2003 Management Stock
Incentive 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, and our subsidiaries', 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.
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We are a party to an indemnification agreement with each of our
directors and executive 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
indemnities' written consent, to fund our indemnification obligations
thereunder.
Insofar as indemnification for liabilities arising under 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 SEC, 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 of 1933;
(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 SEC 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
SEC by the registrant pursuant to Section 13 or
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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
Securities Exchange Act of 1934, as amended, 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 of 1933, as amended, 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.
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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 February 18,
2004.
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
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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 SEC, 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, this
Registration Statement, or amendment thereto, has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Frank T. MacInnis
------------------------ Chairman of the Board and Chief February 18, 2004
Frank T. MacInnis Executive Officer
(Principal Executive Officer)
/s/ Leicle E. Chesser
------------------------ Executive Vice President and Chief February 18, 2004
Leicle E. Chesser Financial Officer (Principal Financial
Officer)
/s/ Mark A. Pompa
------------------------ Senior Vice President - Chief February 18, 2004
Mark A. Pompa Accounting Officer and Treasurer
(Principal Accounting Officer)
------------------------ Director
Stephen W. Bershad
/s/ David A.B. Brown
------------------------ Director February 18, 2004
David A.B. Brown
/s/ Larry J. Bump
------------------------ Director February 18, 2004
Larry J. Bump
/s/ Albert Fried, Jr.
------------------------ Director February 18, 2004
Albert Fried, Jr.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Richard F. Hamm, Jr.
------------------------ Director February 18, 2004
Richard F. Hamm, Jr.
/s/ Michael T. Yonker
------------------------ Director February 18, 2004
Michael T. Yonker
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EXHIBIT INDEX
EXHIBITS
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4.1 EMCOR Group, Inc. Executive Stock Bonus Plan, as amended.
4.2 2003 Non-Employee Directors' Stock Option Plan(a)
4.3 2003 Management Stock Incentive Plan(b)
4.4 Option Agreement by and between EMCOR Group, Inc. and Frank T.
MacInnis, dated May 5, 1999
4.5 Form of EMCOR Executive Officer Option Agreement for options
granted January 4, 1999, January 3, 2000 and January 2, 2001
4.6 Form of EMCOR Executive Officer Option Agreement dated December 14,
2001
4.7 Form of EMCOR Executive Officer Option Agreement for options
granted January 2, 2002, January 2, 2003, and January 2, 2004
4.8 Form of Director Option Agreement for options granted June 19, 2002,
October 25, 2002 and February 27, 2003
5.1 Opinion of Sheldon I. Cammaker, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Sheldon I. Cammaker, Esq. (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
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(a) Incorporated by reference to Exhibit A to the Company's proxy statement for
its annual meeting held June 12, 2003.
(b) Incorporated by reference to Exhibit B to the Company's proxy statement for
its annual meeting of stockholders held June 12, 2003.