Doc#: NY6: 107920.3
As filed with the Securities and Exchange Commission on October 5, 2005
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)
2005 Stock Plan for Directors
and
2005 Management Stock Incentive Plan
(Full titles of the plans)
Frank T. MacInnis
Chairman of the Board, 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 Proposed Maximum Amount of
Securities to be Registered Registered (1)(2) Offering Price per Share Aggregate Offering Price Registration Fee
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Common Stock, par value 476,000 shares $60.87 $28,974,120 $7,243.53
$0.01 per share
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(1) Includes an aggregate of 26,000 shares issuable under the 2005 Stock
Plan for Directors and 450,000 shares issuable under the 2005
Management Stock Incentive Plan. Pursuant to Rule 457(h) of the
Securities Act of 1933, the offering price for such shares is
estimated solely for the purpose of computing the registration fee and
is based on the average of the high and low price of our common stock
on October 4, 2005, $60.87, 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 of 1933, this
Registration Statement also covers an additional indeterminate number
of shares that may become issuable pursuant to the anti-dilution
provisions of the 2005 Stock Plan for Directors and the 2005
Management Stock Incentive Plan.
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,
2004, which contains our audited financial statements for the fiscal
year ended December 31, 2004.
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, 2004.
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 may be awarded shares, other awards, or options to purchase shares
under the 2005 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
standard 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 us or
in our right), 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 executive officers. These indemnification agreements provide for, among
other things, the indemnification by us of our directors and executive 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
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;
(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) of the Securities Act 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 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, 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 SEC 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 October 5, 2005.
EMCOR GROUP, INC.
By: /s/ Frank T. MacInnis
------------------------------------------------
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 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, as amended,
this Registration Statement, has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ Frank T. MacInnis Chairman of the Board and Chief October 5, 2005
------------------------------ Executive Officer
Frank T. MacInnis (Principal Executive Officer)
/s/ Leicle E. Chesser Executive Vice President and Chief October 5, 2005
------------------------------ Financial Officer
Leicle E. Chesser (Principal Financial Officer)
/s/ Mark A. Pompa Senior Vice President - Chief Accounting October 5, 2005
------------------------------ Officer and Treasurer
Mark A. Pompa (Principal Accounting Officer)
/s/ Stephen W. Bershad Director October 5, 2005
------------------------------
Stephen W. Bershad
/s/ David A.B. Brown Director October 5, 2005
------------------------------
David A.B. Brown
/s/ Larry J. Bump Director October 5, 2005
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Larry J. Bump
/s/ Albert Fried, Jr. Director October 5, 2005
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Albert Fried, Jr.
/s/ Richard F. Hamm, Jr. Director October 5, 2005
------------------------------
Richard F. Hamm, Jr.
/s/ Michael T. Yonker Director October 5, 2005
------------------------------
Michael T. Yonker
EXHIBIT INDEX
Exhibits
4.1 2005 Stock Plan for Directors (a)
4.2 2005 Management Stock Incentive Plan (b)
5.1 Opinion of Sheldon I. Cammaker, Esq.
23.1 Consent of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
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 C to the Company's proxy statement for
its annual meeting of stockholders held June 16, 2005.
(b) Incorporated by reference to Exhibit B to the Company's proxy statement for
its annual meeting of stockholders held June 16, 2005.
Exhibit 5.1
[Letterhead of Sheldon I. Cammaker]
October 5, 2005
EMCOR Group, Inc.
301 Merritt Seven, 6th Floor
Norwalk, CT 06851
Gentlemen:
With respect to the Registration Statement on Form S-8 filed by EMCOR
Group, Inc. ("EMCOR") with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended, 476,000
shares of EMCOR's common stock, par value $0.01 per share (the "Common Stock"),
to be issued pursuant to each of your 2005 Stock Plan for Directors and the 2005
Management Stock Incentive Plan (collectively, the "Plans"), I am acting as
counsel to you.
I wish to advise you that in my opinion the 476,000 shares of Common Stock
to be issued by you under the Plans or pursuant to the exercise of options
issued under the Plans, when issued in accordance with the respective terms
thereof, will be legally issued, fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-8. In giving this consent, I do not thereby admit that I am
within the category of persons whose consent is required under the Securities
Act of 1933, as amended, or under the rules and regulations of the Securities
and Exchange Commission.
Very truly yours,
/s/ Sheldon I. Cammaker
----------------------------
Sheldon I. Cammaker
Executive Vice President, General
Counsel and Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the registration of 476,000 shares of common
stock related to the 2005 Stock Plan for Directors and the 2005 Management Stock
Incentive Plan of our reports dated March 8, 2005, with respect to the
consolidated financial statements and schedule of EMCOR Group, Inc. and
Subsidiaries, included in its Annual Report (Form 10-K) for the year ended
December 31, 2004, EMCOR Group, Inc. and Subsidiaries management's assessment of
the effectiveness of internal control over financial reporting, and the
effectiveness of internal control over financial reporting of EMCOR Group, Inc.
and Subsidiaries, filed with the Securities and Exchange Commission.
Stamford, Connecticut
October 5, 2005