Exhibit 10(p)
1995 NON-EMPLOYEE DIRECTORS' NON-QUALIFIED
STOCK OPTION PLAN
OF
EMCOR GROUP, INC.
1. Purpose. The purpose of this Stock Option Plan is to advance the
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interests of the Corporation by encouraging and enabling the acquisition of a
personal proprietary interest in the Corporation by Non-Employee Directors of
the Corporation upon whose judgment and keen interest the Corporation is largely
dependent for the successful conduct of its business and by providing such Non-
Employee Directors with incentives to put forth maximum efforts for the success
of the Corporation's business. It is anticipated that the acquisition of such
proprietary interest in the Corporation and such incentives will stimulate the
efforts of Non-Employee Directors on behalf of the Corporation and strengthen
their desire to remain with the Corporation. It is also expected that such
incentives and the opportunity to acquire such a proprietary interest will
enable the Corporation to attract desirable Non-Employee Directors.
2. Definitions. When used in this Plan, unless the context otherwise
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requires:
(a) "Board of Directors" shall mean the Board of Directors of the
Corporation, as constituted at any time.
(b) "Chairman of the Board" shall mean the person who at the time
shall be Chairman of the Board of Directors.
(c) "Corporation" shall mean EMCOR Group, Inc., a Delaware
corporation.
(d) "Effective Date" shall mean the effective date of the Plan as set
forth in Section 17.
(e) "Fair Market Value" on a specified date shall mean the closing
price at which a Share is traded on the stock exchange, if any, on which
Shares are primarily traded or, if the Shares are not then traded on a
stock exchange, the closing price of a Share as reported on the NASDAQ
National Market System or, if the Shares are not then traded on the NASDAQ
National Market System, the average of the closing bid and ask prices at
which a Share is traded on the over-the-counter market, but if no Shares
were traded on such date, then on the last previous date on which a Share
was so traded, or, if none of the above are applicable, the value of a
Share as determined by an unaffiliated investment banking firm selected by
the Board of Directors.
(f) "Non-Employee Director" shall mean a director of the Corporation
who is not an employee of the Corporation or a Subsidiary.
(g) "Options" shall mean the Stock Options granted pursuant to this
Plan.
(h) "Plan" shall mean this 1995 Non-Employee Directors' Non-Qualified
Stock Option Plan of EMCOR Group, Inc., as adopted by the Board of
Directors on March 20, 1995, as such Plan from time to time may be amended.
(i) "President" shall mean the person who at the time shall be the
President of the Corporation.
(j) "Share" shall mean a share of common stock of the Corporation.
(k) "Subsidiary" shall mean 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. Participants. The class of persons who are potential recipients of
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Options granted under this Plan consists of Non-Employee Directors. The Non-
Employee Directors to whom Options are granted under this Plan, and the number
of Shares subject to each such Option, shall be determined in accordance with
the terms and conditions of this Plan.
4. Shares. Subject to the provisions of Section 12 hereof, the aggregate
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number of Shares which may be the subject of Options granted under the Plan is
200,000 Shares, all of which Shares may be either Shares held in treasury or
authorized but unissued Shares. If the Shares that would be issued or
transferred pursuant to any Option are not issued or transferred and cease to be
issuable or transferable for any reason, the number of Shares subject to such
Option will no longer be charged against the limitation provided for herein and
may again be made subject to Options; provided, that the counting of Shares
subject to Options granted under the Plan against the number of Shares available
for further Options shall in all cases conform to the requirements of Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
5. Grant of Options. Each person who is a Non-Employee Director on the
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Effective Date shall be granted an Option on the Effective Date to purchase
7,500 Shares. Each person who is elected to serve as a Non-Employee Director
after the Effective Date, including Non-Employee Directors on the Effective
Date, shall be granted an Option to purchase 3,000 Shares during each
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calendar year, beginning with 1995, on the date on which the Board of Directors
holds its first meeting following the annual meeting of stockholders of the
Corporation held during such calendar year provided such person is then a Non-
Employee Director. Notwithstanding the foregoing, if, beginning with 1996, an
annual meeting of stockholders of the Corporation does not occur within the
period ending on the last day of the 16th month following the month in which the
prior year's annual meeting of stockholders of the Corporation was held, then
such Option shall be granted on the last day of such 16th month to each then
Non-Employee Director and no additional Options shall be granted in respect of
such calendar year to any Non-Employee Director who received such Option.
A certificate of Option in the form attached hereto as Exhibit A, signed by
the Chairman of the Board or the President or a Vice President of the
Corporation, attested by the Treasurer or an Assistant Treasurer, or Secretary
or an Assistant Secretary of the Corporation and bearing the seal of the
Corporation affixed thereto, shall be issued to each person to whom an Option is
granted. The certificate of Option for an Option shall be legended to indicate
that it is not an incentive stock option that meets the requirements of Section
422 of the Internal Revenue Code of 1986, as amended (the"Code").
6. Purchase Price. The purchase price per Share of the Shares to be
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purchased pursuant to the exercise of an Option shall be the Fair Market Value
of a Share on the date such Option is granted.
7. Duration of Options. The duration of any Option granted under this
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Plan shall be for a period of ten years from the date upon which the Option is
granted.
8. Exercise of Options. Options shall be fully exercisable by the holder
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as of the date of grant; provided, however, that no Options may be exercised in
part or in full prior to the approval of the Plan by a majority vote of the
stockholders of the Corporation as provided in Section 17.
An Option shall be exercised by the delivery of a written notice duly
signed by the holder thereof to such effect ("Exercise Notice"), together with
the Option certificate and 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 (provided, that a holder may not use
any Shares acquired pursuant to this
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Plan or any other plan maintained by the Company or a Subsidiary unless the
holder has beneficially owned such Shares for at least six months); or 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, if any.
Within a reasonable time after the exercise of an 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. If the Option
shall have been exercised with respect to less than all of the Shares subject to
the Option, the Corporation shall also cause to be delivered to the person
entitled thereto a new Option certificate in replacement of the certificate
surrendered at the time of the exercise of the Option, indicating the number of
Shares with respect to which the Option remains available for exercise, or the
original Option certificate shall be endorsed to give effect to the partial
exercise thereof.
Notwithstanding any other provision of the Plan or of any Option, no Option
granted pursuant to the Plan may be exercised at any time when the Option or the
granting or exercise thereof violates any law or governmental order or
regulation.
9. Consideration for Options. Options shall be granted under the Plan in
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consideration of the services of participants in the Plan.
10. Non-transferability of Options. Options and all other rights
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thereunder shall be non-transferable or non-assignable by the holder thereof
otherwise than by will or the laws of descent and distribution. Options may be
exercised or surrendered during the holder's lifetime only by the holder thereof
or his guardian or legal representative.
11. No Effect Upon Termination of Service. The holder may exercise any
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unexercised portion of such Option at any time prior to the expiration of the
term of such Option regardless of an Optionholder's cessation or termination of
service as a director of the Corporation for any reason. In the event of the
holder's death at any time prior to the expiration of the term of an Option and
before it is exercised in full, the executors, administrators, legatees or
distributees of the holder's estate shall have the privilege of exercising any
unexercised portion of such Option at any time prior to the expiration of the
term of such Option.
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12. Adjustment Provision. If prior to the complete exercise of any Option
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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 holder thereof 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 thereunder.
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 Options
remain to be issued, or with respect to which Options may be reissued, shall be
adjusted in a similar manner.
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, this Plan and the Options granted hereunder shall
terminate unless provision is made by the Corporation in connection with such
transaction for the assumption of Options theretofore granted, or the
substitution for such Options 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 Options
terminate as aforesaid in connection with such a dissolution, liquidation,
merger, consolidation or sale, the holder of any such 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
stockholders in connection with such transaction) of the Shares subject to the
portion of the Option not theretofore exercised, 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 out-
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standing Shares, the Board of Directors shall make such adjustments to the
number of Shares and the class of shares available hereunder or to any
outstanding Option as shall be necessary to prevent dilution or enlargement of
rights.
13. Issuance of Shares and Compliance with Securities Act. The
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Corporation may postpone the issuance and delivery of Shares pursuant to the
grant or exercise of any Option until 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. Any
holder of an Option 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 act. 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
any Option, or may issue stop transfer orders in respect thereof.
14. Income Tax Withholding. If the Corporation shall be required to
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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 any
Option, the Corporation shall be entitled to deduct and withhold such amounts
from any cash payments to be made to the holder of such Option. In any event,
the holder shall make available to the Corporation, promptly when requested by
the Corporation, sufficient funds to meet the requirements of such withholding;
and the Corporation 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 out
of any funds or property due or to become due to the holder of such Option.
15. Administration and Amendment of the Plan. Except as hereinafter
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provided, the Board of Directors may at any time withdraw or from time to time
amend the Plan as it relates to, and the terms and conditions of, any Option not
theretofore granted, and the Board of Directors, with the consent of the
affected holder of an Option, may at any time withdraw or from time to time
amend the Plan as it relates to, and the terms and conditions of, any
outstanding Option; provided, however, that any amendment by the Board of
Directors which would increase the number of Shares issuable under the Plan,
change the class of persons eligible to participate in the Plan or materially
increase the benefits to participants in the Plan shall be subject to the
approval of the stockholders of the Corporation; and provided, further, that no
provision of the Plan that
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specifies the directors who may receive Options, the timing of Option grants,
the number or purchase price of Shares that may be purchased under Options, or
the time when Options may be exercised, shall be amended more than once every
six months, other than to comport with changes in the Code or the Employee
Retirement Income Security Act of 1974, as amended.
The Plan is intended to comply with Rule 16b-3 under the Exchange Act. Any
provision inconsistent with such Rule shall be inoperative and shall not affect
the validity of the Plan.
16. No Right of Service. Nothing contained herein or in an Option shall
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be construed to confer on any participant in the Plan any right to continue to
serve as a director of the Corporation.
17. Effective Date of the Plan. This Plan is conditioned upon its
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approval at the next special or annual meeting of the stockholders of the
Corporation on or before June 30, 1996 by the vote of the holders of a majority
of the stock of the Corporation present in person or by proxy and entitled to
vote at such meeting; except that this Plan is adopted and approved by the Board
of Directors effective March 20, 1995 to permit the grant of Options prior to
the approval of the Plan by the stockholders of the Corporation as aforesaid.
In the event that this Plan is not approved by the stockholders of the
Corporation as aforesaid, this Plan and any Options granted hereunder shall be
void and of no force or effect.
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Exhibit A
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OPTION CERTIFICATE
NON-QUALIFIED STOCK OPTION
(Non-Assignable)
___________ Shares
To Purchase Common Stock of
EMCOR GROUP, INC.
Issued Pursuant to the 1995
Non-Employee Directors' Non-Qualified
Stock Option Plan of EMCOR Group, Inc.
THIS CERTIFIES that on ________________, 19__,
_________________________________ (the "Holder") was granted an option
("Option"), which is not an incentive stock option, to purchase at the Option
price of $_________ per share all or any part of ____________________ fully paid
and non-assessable shares ("Shares") of the Common Stock (par value $0.01 per
share) of EMCOR Group, Inc. ("Corporation"), a Delaware corporation, upon and
subject to the following terms and conditions.
This Option shall expire on _________________, 20__.
This Option may be exercised or surrendered during the Holder's lifetime
only by the Holder. This Option shall not be transferable by the Holder
otherwise than by will or by the laws of descent and distribution.
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The Option and this Option certificate are issued pursuant to and are
subject to all of the terms and conditions of the Corporation's 1995 Non-
Employee Directors' Non-Qualified Stock Option Plan, the terms and conditions of
which are hereby incorporated as though set forth at length, and the receipt of
a copy of which the Holder hereby acknowledges by his receipt of this
certificate.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Dated: _______________________, 19__.
(SEAL) EMCOR GROUP, INC.
By:
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ATTEST:
By:
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