EXHIBIT 4.1
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EMCOR GROUP, INC.
EXECUTIVE STOCK BONUS PLAN
SECTION 1. PURPOSE.
The purpose of the Plan is to encourage stock ownership in the
Company by its senior management and to provide a vehicle through which (i) a
portion of each annual bonus payable to a Participant will be deferred and
ultimately may be paid in the form of Company Stock and (ii) an additional
portion of each annual bonus payable to a Participant may, at such Participant's
election, be deferred and ultimately may be paid in the form of Company Stock.
SECTION 2. DEFINITIONS.
As used in the Plan, the following capitalized terms shall
have the following meanings:
"Bonus" means the annual bonus, if any, awarded to a
Participant by the Committee.
"Board" means the Board of Directors of the Company.
"Change of Control" means 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 (unless the event causing the 25% threshold to be crossed is an
acquisition of voting common securities directly from the Company, other than
upon the conversion of convertible debt securities or other securities and/or
the exercise of options or warrants); 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 (a "Transaction")
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
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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).
"Committee" means the Compensation and Personnel Committee of
the Board.
"Company" means EMCOR Group, Inc., a Delaware corporation, or
any successor corporation.
"Company Stock" means common stock of the Company, par value
$.01 per share.
"Designated Beneficiary" means the beneficiary or
beneficiaries designated in accordance with Section 8.6 to receive the shares of
Company Stock, if any, payable to a Participant under the Plan upon the
Participant's death.
"Fair Market Value" means, as of a specified date, the closing
price at which a share of Company Stock is traded on the stock exchange, if any,
on which such 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.
"Financial Hardship" means severe financial hardship caused by
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant, as determined by the Committee in its
sole and absolute discretion.
"Participant" means each person designated to participate in
the Plan pursuant to Section 3.1.
"Plan" means the EMCOR Group, Inc. Executive Stock Bonus Plan.
"Plan Year" means the accounting fiscal year of the Company.
SECTION 3. ELIGIBILITY AND PARTICIPATION.
3.1 DESIGNATION. The Committee shall, in its sole
discretion, designate by March 31 of each Plan Year which executive officers of
the Company will participate in the Plan for such Plan Year. Each Participant
will be notified of his selection as soon after such selection as is
practicable. Notwithstanding the foregoing, for the Plan Year 2000 the following
persons shall be Participants in the Plan: Frank T. Maclnnis,
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Jeffrey M. Levy, Sheldon I. Cammaker, Leicle E. Chesser, R. Kevin Matz, and Mark
A. Pompa.
3.2 NO RIGHT TO PARTICIPATE. No person has or at any time
will have any right to be selected for current or future participation in the
Plan, nor may any person selected for Participation in the Plan decline to
participate therein.
SECTION 4. ADMINISTRATION.
4.1 AUTHORITY OF THE COMMITTEE. The Committee has and
will have all the authority that may be necessary or helpful to enable it to
discharge its responsibilities with respect to the Plan. Without limiting the
generality of the foregoing, and in addition to any authority or responsibility
specifically granted to the Committee elsewhere in the Plan, the Committee has
the exclusive right to (a) interpret the Plan, (b) decide the amount of each
Participant's Bonus, subject to and in accordance with any employment agreement
or other agreement between the Company and the Participant, (c) construe any
ambiguous provision of the Plan, (d) supply any omission, (e) reconcile any
inconsistency, (f) issue administrative guidelines as an aid to administer the
Plan, (g) make regulations, if any, for carrying out the Plan and to make
changes in such regulations as they from time to time deem proper, and (h)
decide any and all questions arising in the administration, interpretation and
application of the Plan.
4.2 DISCRETIONARY AUTHORITY. The Committee shall have
full discretionary authority in all matters related to the discharge of its
responsibilities and the exercise of its authority under the Plan including,
without limitation, its construction of the terms of the Plan. It is the intent
of the Company in establishing the Plan that the decisions of the Committee and
its action with respect to the Plan will be final, binding and conclusive upon
all persons having or claiming to have any right or interest in or under the
Plan.
SECTION 5. BONUSES.
5.1 ESTABLISHMENT OF AMOUNT AND COMMUNICATION TO
PARTICIPANTS. On or before March 31 of each year, commencing with the year 2001,
the Committee shall determine the Bonus, if any, payable to each Participant in
respect of the immediately preceding calendar year. Determination of such Bonus
shall be subject to and in accordance with any employment agreement or any other
agreement between the Company and the Participant.
5.2 MANDATORY DEFERRAL. 25% of each such Bonus shall be
immediately deferred into a Mandatory Stock Unit Account in accordance with the
provisions of Section 6.2(b), unless the Committee in its discretion determines,
on or before March 31 of each year (but no later than the day on which such
deferral occurs), commencing with the year 2001, that the percentage of each
such Bonus for the immediately preceding year to be deferred into a Mandatory
Stock Unit Account shall be a lower percentage but not less than 10%; provided
further that any such determination shall apply uniformly to all Participants
participating in the Plan.
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5.3 VOLUNTARY DEFERRAL. That portion of a Participant's
Bonus (or any part thereof) that is not subject to a mandatory deferral referred
to in Section 5.2 may be deferred into a Voluntary Stock Unit Account in
accordance with the provisions of Sections 6.1 and 6.2(c).
5.4 CASH PAYMENT. The balance of the Participant's Bonus
as to which the above-mentioned mandatory deferral and the above-mentioned
voluntary deferral does not apply shall be payable in a lump sum cash payment by
March 31 of each year.
5.5 MODIFICATION OF VOLUNTARY DEFERRAL. Notwithstanding
any other provision of the Plan, at any time prior to the last day of any
calendar year the Committee may, in its sole discretion, determine to decline to
implement voluntary deferrals made under the Plan with respect to Bonuses
payable in respect of such year; provided that any such determination shall
apply uniformly to all Participants participating in the Plan.
SECTION 6. DEFERRED BONUSES.
6.1 VOLUNTARY DEFERRAL BONUS. A Participant may elect
("Deferred Bonus Election") to defer the payment of all or part of his Bonus
that is not mandatorily deferred into a Voluntary Stock Unit Account (as
described in Section 6.2(c) below) by submitting an election form ("Deferred
Bonus Election Form") to the Company by June 30 of the Plan Year in respect of
which a Bonus may be payable, except with respect to the Bonus for 2000, in
which case such Deferred Bonus Election Form shall be submitted to the Company
by October 31, 2000. The Deferred Bonus Election Form shall indicate: (i) the
Elected Date (as that term is defined in Section 6.3(b)), and (ii) the
percentage of the Bonus, if any, to be voluntarily deferred that will not be
mandatorily deferred.
All deferral elections shall be irrevocable once made. A
Participant may designate, in a Deferred Bonus Election Form, one or more
Designated Beneficiaries to receive any distributions under the Plan upon the
death of the Participant in accordance with Section 8.6.
6.2 COMMON STOCK, STOCK UNIT ACCOUNTS AND DIVIDEND
EQUIVALENTS.
(a) COMPANY STOCK. Subject to the following
sentence, the aggregate number of shares of Company Stock reserved for issuance
under the Plan shall be 220,000 shares presently held in the treasury of the
Company. In the event of any merger, reorganization, recapitalization,
consolidation, sale or other distribution of all or substantially all of the
assets of the Company, any stock dividend, split, spin-off, split-up, split-off,
distribution of securities or other property by the Company, or other change in
the Company's corporate structure affecting the shares of Company Stock, the
number of shares reserved under the Plan and the number of Stock Units then
credited to Mandatory and Voluntary Stock Unit Accounts pursuant to Section 6.3
shall be appropriately adjusted as determined by the Committee in its sole
discretion in a manner intended to prevent dilution or enlargement of the
intended benefits to Participants under the Plan.
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(b) MANDATORY STOCK UNIT ACCOUNTS. Each portion
of a Bonus required to be deferred pursuant to the Plan ("Mandatory Deferred
Amount") shall be credited to a separate account ("Mandatory Stock Unit
Account") in units, with each unit representing one share of Company Stock
("Stock Units") and the number of Stock Units calculated in accordance with
Section 6.2(d). A separate Mandatory Stock Unit Account shall be established for
the portion of each year's Bonus required to be deferred pursuant to the Plan.
(c) VOLUNTARY STOCK UNIT ACCOUNTS. Each portion
of a Bonus deferred by a Participant pursuant to a properly completed Deferred
Bonus Election Form under Section 6.1 (the "Voluntary Deferred Amount") shall be
credited to a separate account ("Voluntary Stock Unit Account") in Stock Units
with the number of Stock Units calculated in accordance with Section 6.2(d). A
separate Voluntary Stock Unit Account shall be established for the portion of
each year's Bonus elected to be deferred pursuant to the Plan. (Mandatory Stock
Unit Accounts and Voluntary Stock Unit Accounts are referred to herein
collectively as "Stock Unit Accounts".)
(d) CALCULATION OF STOCK UNITS. The number of
Stock Units credited to each Stock Unit Account shall be an amount equal to the
Mandatory Deferred Amount and Voluntary Deferred Amount, respectively, divided
by .85% of the Fair Market Value of a share of Company Stock on the day on which
the Bonus to which such Mandatory Deferral Amount and/ or Voluntary Deferral
Amount relates is determined.
(e) DIVIDEND EQUIVALENTS. If Stock Units exist
in a Participant's Mandatory Stock Unit Account or Voluntary Stock Unit Account
on a dividend record date for the Company Stock, each Stock Unit Account shall
be credited, on the dividend payment date, with an additional number of Stock
Units equal to (i) the cash value of the dividend paid on one share of Company
Stock multiplied by the number of Stock Units in the Stock Unit Account on the
dividend record date and (ii) divided by 85% of the Fair Market Value of a share
of Company Stock on the trading day immediately preceding the dividend payment
date.
(f) VESTING. All Mandatory and Voluntary
Deferred Amounts allocated to Stock Unit Accounts shall be fully vested at all
times and shall be credited to the appropriate Stock Unit Account as of the date
a Participant's Bonus is determined.
6.3 DISTRIBUTIONS.
(a) DISTRIBUTION DATE OF MANDATORY DEFERRED
PAYMENT. Subject to the provisions of Section 6.3(d), amounts credited to a
Participant's Mandatory Stock Unit Account in respect of a Bonus shall be paid
in shares of Company Stock equal to the number of Stock Units credited thereto
on the earlier of (i) the first business day immediately following the day (the
"Release Date") upon which the Company releases to the public generally its
results in respect of the fourth quarter of the third calendar year following
the year in respect of which such Bonus was payable, (ii) the Participant's
termination of employment for any reason or (iii) immediately prior to a Change
of Control ("Mandatory Distribution Date").
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(b) DISTRIBUTION DATE OF VOLUNTARY DEFERRED
PAYMENT. Subject to the provisions of Section 6.3(d), amounts credited to a
Participant's Voluntary Stock Unit Account in respect of a Bonus shall be paid
in shares of Company Stock equal to the number of Stock Units credited thereto
on the earlier of (i) the Elected Date, (ii) the Participant's termination of
employment for any reason or (iii) immediately prior to a Change of Control
("Voluntary Distribution Date"). Each Participant shall designate on a Deferred
Bonus Election Form a date (the "Elected Date") on which he or she elects to
have the amounts credited to the Participant's Voluntary Stock Unit Account
paid; provided that such date is (A) no earlier than the Mandatory Distribution
Date with respect to such Bonus and no later than the first business day
immediately following the Release Date in respect of the fourth quarter of the
tenth calendar year following the year in respect of which such Bonus was
payable, (B) is at least one business day after the release by the Company to
the public generally of its results for the immediately preceding quarter and
(C) is not within 16 days of the end of the calendar quarter in which such date
falls. Notwithstanding the foregoing, but subject to proviso of the immediately
preceding sentence, the Participant may, at least six months prior to the
Elected Date and in the calendar year preceding the Elected Date, on one or more
occasions, defer such Elected Date by filing with the Secretary of the Company a
written extension of the Elected Date and the latest such extended date shall be
deemed thereafter to be the "Elected Date" with respect to such Voluntary Stock
Unit Account; provided such extended date (A) is at least one business day after
the release by the Company to the public generally of its results for the
immediately preceding quarter and (B) is not within 16 days of the end of the
calendar quarter in which such date falls.
(c) EARLY DISTRIBUTION. Notwithstanding anything
contained herein to the contrary, the Committee may permit distribution of all
or a part of a Participant's Mandatory Stock Unit Account and/or Voluntary Stock
Unit Account earlier than otherwise provided herein if it determines, in its
sole discretion, following written request therefor by the Participant, that the
Participant (or his estate or beneficiary) is experiencing a Financial Hardship;
provided that such distribution may not be in an amount greater than that
determined by the Committee as necessary to alleviate the Financial Hardship.
(d) CASH IN LIEU OF STOCK. If any fractional
shares or securities would be issuable to a Participant in respect of Stock
Units, in lieu thereof such fractional shares or securities shall be payable in
cash based upon the Fair Market Value of such shares or securities on the
Mandatory Distribution Date or Voluntary Distribution Date, as the case may be,
or in the case of a distribution pursuant to Section 6.3(c), on the date of
determination as provided for therein.
(e) DISTRIBUTION FOR TAXES. Notwithstanding
anything contained herein to the contrary, the Committee shall immediately
distribute any portion of a Participant's Mandatory Stock Unit Account and/or
Voluntary Stock Unit Account which has been determined by the Internal Revenue
Service or a taxing authority of another jurisdiction, in a manner which cannot
be appealed or as to which the time to appeal has expired, to be currently
taxable to the Participant or to have been taxable to the Participant in a prior
taxable year.
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SECTION 7. TERMINATION OR AMENDMENT OF THE PLAN.
The Board may amend, modify, suspend or terminate the Plan at
any time, except that without stockholder approval the Board may not increase
the maximum number of shares which may be issued under the Plan (other than
increases pursuant to the second sentence of Section 6.2(a)) or extend the term
of the Plan. The termination or any modification, suspension, or amendment of
the Plan shall not, without the consent of a Participant, adversely affect the
Participant's rights with respect to Bonuses, Stock Units and/or Company Stock
previously awarded to him or her or credited to his or her Stock Unit Accounts
or result in a distribution of amounts credited to his or her Stock Unit
Accounts earlier than otherwise provided herein.
SECTION 8. MISCELLANEOUS.
8.1 REORGANIZATION OR DISCONTINUANCE. The obligations of
the Company under the Plan shall be binding upon any successor corporation or
organization resulting from merger, consolidation or other reorganization of the
Company, or upon any successor corporation or organization succeeding to
substantially all of the assets and business of the Company. The Company will
make appropriate provision for the preservation of Participants' rights under
the Plan in any agreement or plan which it may enter into or adopt to effect any
such merger, consolidation, reorganization or transfer of assets.
8.2 NON-ALIENATION OF BENEFITS. A Participant may not
assign, sell, encumber, transfer or otherwise dispose of any rights or interests
under the Plan except by will or by the laws of descent and distribution. Any
attempted disposition in contravention of the preceding sentence shall be null
and void.
8.3 NO CLAIM OR RIGHT TO PLAN PARTICIPATION. Except as
otherwise specifically provided in the Plan, no employee or other person shall
have any claim or right to be selected as a Participant under the Plan. Neither
the Plan nor any action taken pursuant to the Plan shall be construed as giving
any employee any right to be retained in the employ of the Company or any
subsidiary.
8.4 RESTRICTIONS ON STOCK TRANSFERABILITY. The Committee
shall impose such restrictions on disposition of shares of Company Stock
acquired under the Plan as it may deem advisable to comply with applicable
Federal securities laws, the requirements of any stock exchange upon which the
Company Stock is then listed or the National Association of Securities Dealers
if the Company Stock is not then listed and is traded on the NASDAQ National
Market System or on the over-the-counter market, and blue sky or state
securities laws applicable to such shares.
8.5 TAXES. The Company shall have the power to withhold,
or require a Participant to remit to the Company, an amount sufficient to
satisfy Federal, state and local withholding tax requirements on any
distribution of shares of Company Stock or cash pursuant to this Plan. To the
extent permissible under applicable tax, securities, and other laws, the Company
shall, at the Participant's election, permit the Participant to
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satisfy a tax withholding requirement by directing the Company to apply shares
of Company Stock to which the Participant is entitled under the Plan to satisfy
such requirement, which shares shall be valued at their Fair Market Value as of
the Mandatory or Voluntary Distribution Date, as the case may be, or in the case
of amounts distributed pursuant to Section 6.3(c), valued as of the date of
determination provided for therein.
8.6 DESIGNATION AND CHANGE OF BENEFICIARY. Each
Participant may indicate at any time after being notified that he or she is a
Participant the designation of one or more persons as his or her Designated
Beneficiary who shall be entitled to receive the amount, if any, payable under
the Plan upon the death of the Participant. Such designation shall be in writing
to the Committee, or an officer of the Company designated by the Committee. A
Participant may, from time to time, revoke or change his or her Designated
Beneficiary without the consent of any prior Designated Beneficiary by filing a
written designation with the Committee or such designated officer. The last such
designation received by the Committee or such officer shall be controlling;
provided, however, that no designation, or change or revocation thereof, shall
be effective unless received by the Committee prior to the Participant's death,
and in no event shall it be effective as of a date prior to such receipt. In the
absence of any designation of a Designated Beneficiary, the benefits hereunder
unpaid at the Participant's death shall be paid to his estate.
8.7 PAYMENTS TO PERSONS OTHER THAN THE PARTICIPANT. If
the Committee shall find that any person to whom any amount is payable under the
Plan is unable to care for his or her affairs because of illness or accident,
then any payment due to such person or his or her estate (unless a prior claim
therefor has been made by a duly appointed legal representative) may, if the
Committee so directs, be paid to his or her spouse, a child, a relative, an
institution maintaining or having custody of such person, or any other person
deemed by the Committee, in its sole discretion, to be a proper recipient on
behalf of such person otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Company therefor.
8.8 NO LIABILITY OF COMMITTEE MEMBERS. No member of the
Committee shall be personally liable by reason of any act taken hereunder or any
failure to act hereunder or on his or her behalf in his or her capacity as a
member of the Committee, and the Company shall indemnify and hold harmless each
member of the Committee and any employee, officer, or director of the Company to
whom any duty or power relating to the administration or interpretation of the
Plan may be delegated, against any cost or expense (including legal fees,
disbursements and other related charges) or liability (including any sum paid in
settlement of a claim with the approval of the Board of Directors) arising out
of any act or omission to act in connection with the Plan, unless arising out of
such person's own fraud or willful misconduct.
8.9 UNFUNDED PLAN. Participants shall have no right,
title, or interest whatsoever in or to any investments which the Company may
make to aid it in meeting its obligations under the Plan. Nothing contained in
the Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship between the
Company and any Participant, beneficiary, legal
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representative or any other person. To the extent that any person acquires a
right to receive payments from the Company under the Plan, such right shall be
no greater than the right of an unsecured general creditor of the Company. All
payments to be made hereunder shall be paid from the general funds of the
Company and no special or separate fund shall be established and no segregation
of assets shall be made to assure payment of such amounts except as expressly
set forth in the Plan.
The Plan is not intended to be subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
8.10 RIGHTS AS A STOCKHOLDER. No Participant shall have
any rights as a stockholder of the Company with respect to any Stock Units
credited to his Stock Unit Accounts.
8.11 GOVERNING LAW. This Plan shall be governed by and
construed in accordance with laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state (without regard
to any conflict of law provisions that might indicate the applicability of any
other laws).
8.12 EFFECTIVE DATE. This Plan shall become effective as
of October 24, 2000.
8.13 DURATION. Subject to the provisions of Section 7, the
Plan shall remain in effect until the earlier of (a) all shares of Company Stock
subject to it shall have been allocated to Stock Unit Accounts in the form of
Stock Units and paid out to Participants, (b) the Board terminates the Plan, or
(c) 10 years from the effective date of the Plan.