EXHIBIT 4.6
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STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the 14th day of December, 2001 by and
between EMCOR GROUP, INC., a Delaware corporation (the "Corporation"), and
_______________ ("Grantee")
W I T N E S S E T H:
WHEREAS, the Corporation wishes to grant to Grantee, on the date set
forth above, a non-qualified stock option to purchase shares of Common Stock of
the Corporation, $.01 par value, upon the terms and conditions hereinafter
stated.
NOW, THEREFORE, in consideration of the premises and of the
undertakings hereinafter contained, the Corporation and Grantee agree as
follows:
1. Subject to the terms and conditions of this Agreement, the
Corporation hereby grants to Grantee a non-qualified stock option (the "Option")
to purchase all or any part of ______ shares of Common Stock of the Corporation,
$.01 par value (the "Shares"), at a price per share of $41.70. Unless sooner
terminated in accordance with the terms of this Agreement and prior to the
expiration date of the Option, all or any part of the Shares subject to the
Option may be purchased on or after the date hereof at any time or from time to
time, whether or not the Grantee is then an employee of the Corporation. The
Option shall expire ten years from the date hereof.
2. (a) The Option shall be exercised by the delivery of
written notice duly signed by the Grantee to such effect ("Exercise Notice"),
together with 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
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exercise of the Option; 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; or by such other methods as the Compensation and
Personnel Committee of the Board of Directors of the Company (the "Committee")
may permit from time to time. The provisions of Annex A attached hereto are made
a part of this Agreement as if set forth herein in full.
(b) Within a reasonable time after the exercise of the
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.
(c) Notwithstanding any other provision of the Option,
the Option may not be exercised at any time when the Option or the granting or
exercise thereof violates any law or governmental order or regulation.
(d) For purposes hereof the term Subsidiary means 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. (a) The Option shall be exercisable only by Grantee
during Grantee's lifetime, or, if permissible under applicable law, by Grantee's
legal guardian or representative. The Option may not be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by Grantee
otherwise than by will or by the laws of descent and distribution and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Corporation or its
Subsidiaries; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(b) Notwithstanding the foregoing, the Option may be
transferred by Grantee:
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(A) without consideration to any person who is a
"family member" of Grantee, as such term is
used in the instructions to Form S-8
(collectively, the "Immediate Family
Members");
(B) without consideration to a trust solely for
the benefit of Grantee and his or her
Immediate Family Members;
(C) without consideration to a partnership or
limited liability company whose only
partners or holders of interests are Grantee
and his or her Immediate Family Members; or
(D) with or without consideration to any other
transferee as may be approved by the Board
of Directors or the Committee in its sole
discretion;
(each transferee described in clauses (A), (B), (C) and (D)
above is hereinafter referred to as a "Permitted Transferee"); provided that
Grantee gives the Committee advance written notice describing the terms and
conditions of the proposed transfer and the Committee notifies Grantee in
writing that such a transfer is approved.
(c) If the Option is transferred in accordance with the
immediately preceding sentence, the terms of the Option shall apply to the
Permitted Transferee and any reference herein to a Grantee shall be deemed to
refer to the Permitted Transferee, except that (a) a Permitted Transferee shall
not be entitled to transfer the Option, other than by will or the laws of
descent and distribution; (b) a Permitted Transferee shall not be entitled to
exercise the Option unless there shall be in effect a registration statement on
an appropriate form covering the shares to be acquired pursuant to the exercise
of such Option if the Committee determines that such a registration statement is
necessary or appropriate, (c) the Committee or the Corporation shall not be
required to provide any notice to a Permitted Transferee, whether or not such
notice is or would otherwise have been required to be given to Grantee, and (d)
the consequences of termination of
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Grantee's employment by, or services to, the Corporation or Subsidiary hereunder
shall continue to be applied with respect to Grantee following which the Option
shall be exercisable by the Permitted Transferee only to the extent, and for the
periods, specified herein that the Option could otherwise have been exercised by
the Grantee.
4. In the event of the death of the Grantee prior to the exercise
in full of the Option and prior to the expiration date of the Option, the
representative of the estate of the Grantee may exercise the portion of the
Option which is unexercised at the time of the Grantee's death.
5. (a) If prior to the complete exercise of the Option 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 Grantee 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 hereunder.
(b) 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 the Option remains to be issued shall be adjusted in a similar manner.
(c) 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
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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, the Option shall terminate unless provision is made by the
Corporation in connection with such transaction for the assumption of the
Option, or the substitution for the Option 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 Option terminates as aforesaid in connection with such a dissolution,
liquidation, merger, consolidation or sale, the holder of the 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
shareholders in connection with such transaction) of the Shares subject to the
portion of the Option not theretofore exercised (whether or not the Option is
then exercisable pursuant to its terms or otherwise), over (ii) the aggregate
purchase price which would be payable for the Shares upon the exercise of the
Option. In the event of any other change in the corporate structure or
outstanding Shares, the Committee may make such equitable adjustments to the
number of Shares and the class of shares available under the Option as it shall
deem appropriate to prevent dilution or enlargement of rights.
(d) For purposes hereof the term 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
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System, the average of the closing bid and asked 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 is applicable, the value of a Share as established by the Committee
for such date using any reasonable method of valuation.
6. The Corporation may postpone the issuance and delivery of
Shares pursuant to the grant or exercise of the Option until (a) the admission
of such Shares to listing on any stock exchange on which Shares of the
Corporation of the same class are then listed, and (b) 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. The Grantee 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 the Option, or may issue stop transfer orders in respect thereof.
7. If the Corporation or a Subsidiary shall be required to
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 the
Option, the Corporation or the Subsidiary shall be entitled to deduct and
withhold such amounts from any cash payments to be made to the Grantee. In any
event, the Grantee shall make available to the Corporation or Subsidiary,
promptly when requested by the Corporation or such Subsidiary, sufficient funds
to meet the requirements of such withholding; and the
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Corporation or Subsidiary 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 or Subsidiary out of any funds or property due or to become due to
the holder of such Option.
8. Nothing contained herein shall be construed to confer on the
Grantee any right to be continued in the employ of the Corporation or any
Subsidiary or derogate from any right of the Corporation or any Subsidiary to
retire, request the resignation of or discharge the Grantee (without or with
pay) at any time, with or without cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMCOR GROUP, INC.
By: ___________________________
__________________, Grantee
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Annex A
STOCK OPTION DEFERRALS
This Annex A is made a part of this Stock Option Agreement
dated as of January 2, 2002 between the Corporation and the Grantee. The Grantee
(as defined in the Stock Option Agreement) may elect (the "Deferral Election"),
by completing and signing the Stock Option Deferral Election Form attached as
Exhibit 1 (the "Election Form") hereto, to defer delivery of Common Stock of the
Corporation ("Stock") otherwise deliverable upon exercise of the Option to the
delivery date(s) specified in the Election Form, subject to the following rules.
1. TIMING. The Deferral Election may only be made for an exercise
of the Option which occurs while the Grantee is employed by
the Corporation or any of its subsidiaries, and shall apply
only to that exercisable portion of the Option that has not
been exercised as of the Election Date, as specified in the
Election Form. The exercise of the portion of the Option
subject to the Deferral Election may occur at any time after
the period referred to in Section 2 below, in accordance with
the terms and conditions of the Stock Option Agreement.
2. RESTRICTION ON EXERCISABILITY. The portion of the Option
subject to the Deferral Election shall not be exercisable
during the period beginning with the Election Date and ending
on the day immediately prior to the six-month anniversary of
the Election Date (or if there is no corresponding date in the
sixth calendar month after the Election Date, the six-month
anniversary shall be deemed to be the first day of the seventh
calendar month after the Election Date); provided, however,
that, if, prior to such six-month anniversary, either (i) the
Grantee's employment with the Corporation and all of its
subsidiaries terminates for any reason or (ii) the
Compensation Committee of the Board of Directors of the
Company (the "Committee") so determines, then the restriction
set forth in the preceding portion of this Section 2 shall be
canceled, and the portion of the Option which had been subject
to the Deferral Election shall become exercisable (to the
extent that it would have otherwise have been exercisable in
the absence of such restriction).
3. METHOD OF EXERCISE TO DEFER. The portion of the Option subject
to the deferral election shall be exercised in accordance with
the terms of the Stock Option Agreement; provided that the
exercise price must be paid by the Grantee in shares of Stock
which are considered "mature" for purposes of generally
accepted accounting principles, i.e., (x) they have been held
by the Grantee free and clear for at least six months prior to
their use to pay the Option purchase price (y) they have been
purchased
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by the Grantee in other than a compensatory transaction, or
(z) they meet any other requirements for "mature" shares as
may exist on the date of exercise, as determined by the
Committee (as the term is defined in the Stock Option
Agreement). The Grantee may use Common Stock in payment of the
exercise price by means of attestation to the Corporation of
his ownership of sufficient shares in a manner reasonably
acceptable to the Committee. Shares of Common Stock used to
pay all or part of the Option purchase price pursuant to this
provision will be credited at their fair market value on the
date of delivery. Subject to any action required of the
Corporation by any law or regulation and to the Grantee's
payment to the Corporation of the amount of any required tax
or other withholding as described in Section 7 below, the
Corporation shall, as soon as practicable after the exercise,
return to the Grantee the Common Stock previously delivered to
satisfy the Option purchase price (unless such exercise was
accomplished by means of the attestation mechanism described
above).
4. DEFERRAL ACCOUNT. A number of units equal to the number of
shares of Common Stock otherwise deliverable to the Grantee
from the exercise of the portion of the Option subject to the
Deferral Election, less that number of shares of Common Stock
used to exercise such portion of the Option pursuant to
Section 3 hereof, shall be credited to a "deferral account" on
behalf of the Grantee. The Grantee's deferral account shall be
a bookkeeping account only.
5. DELIVERY OF DEFERRED STOCK. Subject to any action required of
the Corporation by any law or regulation and to the Grantee's
payment of the Corporation of the amount of any required tax
or other withholding, the Corporation shall deliver to the
Grantee on each "Deferred Delivery Date" (as defined in the
following sentence) a certificate representing a number of
shares of Common Stock equal to (i) the number of units
credited to the Grantee's deferral account, divided by (ii)
the number of Deferred Delivery Dates indicated in the
Election Form, subject to withholding in accordance with
Section 7 below, if applicable. The "Deferred Delivery Date"
shall be the date or dates selected by the Grantee in the
Election Form; provided that if a Grantee elects multiple
Deferred Delivery Dates, (A) each must be an anniversary of
the first Deferred Delivery Date and (B) there may no more
than ten Deferred Delivery Dates. The number of shares of
Common Stock delivered to the Grantee shall reduce by the same
number the units credited to the Grantee's deferral account.
6. RIGHTS OF GRANTEE. Following exercise of the portion of the
Option subject to the Deferral Election and prior to the
delivery of any shares of Common Stock related thereto on a
Deferred Delivery date, (a) the Grantee shall not be treated
as owner of such shares, shall not have any rights as a
shareholder as to such shares, and shall have only a
contractual right to
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receive such shares, unsecured by any assets of the
Corporation or its subsidiaries; (b) the Grantee's right to
receive such shares may not be transferred by the Grantee
other than by will or the laws of descent and distribution;
and (c) the Grantee's right to receive such shares will be
subject to adjustment as set forth in Section 5 of the Stock
Option Agreement, relating to stock splits, stock dividends,
stock changes and similar events.
7. TAX WITHHHOLDING. The Grantee shall be responsible for
satisfying such tax withholding as may be required (i) at the
time of exercise of the portion of the Option subject to the
deferral election and (ii) at the time of delivery of Common
Stock on a Deferred Delivery Date, by delivery of a check to
the Corporation in the amount due for such withholding;
provided that the Committee may, at its sole discretion, with
respect to the delivery of Common Stock on a Deferred Delivery
Date, allow the Grantee to satisfy any required withholding by
electing to have the necessary number of shares of Stock
withheld by the Corporation.
8. ADMINISTRATION. A Deferral Election is subject to such
additional administrative rules as the Committee may establish
from time to time.
9. REVOCATION AND HARDSHIP PAYMENT. Subject to Section 2 hereof,
a Deferral Election may not be revoked by the Grantee. The
Committee may, in its sole discretion, accelerate the Deferred
Delivery Date with respect to shares of Common Stock in the
event of (i) an "unforeseeable emergency," (ii) the death or
disability of the Grantee or (iii) the Committee's
determination that continuing to honor the Deferral Election
is no longer in the best interest of the Corporation. An
"unforeseeable emergency" is defined as an unanticipated
emergency caused by an event beyond the control of the Grantee
that would result in severe financial hardship if the
distribution were not permitted. The Deferred Delivery Date
may be accelerated only as to that number of shares of Stock
necessary to sufficiently address the financial hardship.
10. ASSIGNABILITY. No rights to a Grantee's deferral account may
be assigned or subject to any encumbrance, pledge, or charge
of any nature, except that a Grantee may designate a
beneficiary pursuant to any rules established by the
Committee.
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EXHIBIT I
STOCK OPTION DEFERRAL ELECTION FORM
1. Grantee: ____________________ [TYPE NAME]
2. Election Date (DATE THIS FORM IS SUBMITTED TO THE CORPORATION):
_____________
3. Grant date of Option subject to this Deferral Election:
____________
4. Number of shares of Common Stock subject to the unexercised portion of
the Option to which this Deferral Election relates [CHECK ONE]:
: All ___________ Shares
: ___________ Shares, being less than all Shares
5. DEFERRED DELIVERY DATE
Subject to the terms of "Annex A" (to which this Deferral
Election Form is attached): [CHECK ONE]
: I want delivery of my deferred Common Stock to
commence upon my termination of employment
: I want delivery of my deferred Common Stock to
commence upon a particular date, which is written
here: _____
6. NUMBER OF DEFERRED DELIVERY DATES [CHECK ONE]:
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: One [this means you will receive 100% of your
deferred Common Stock on the Deferred Delivery
Date specified in Item 5 above, subject to
applicable withholding]
: ______ [MUST BE A WHOLE NUMBER MORE THAN ONE AND
NO GREATER THAN TEN[ [this means that you will
receive an equal number of shares of your
deferred Common Stock on the date specified in
Item 5 above, and each of the specified number of
anniversaries of that date, subject to applicable
withholding]
BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND
UNDERSTAND THIS DEFERRAL ELECTION FORM, AS WELL AS `"ANNEX A" TO WHICH IT IS
ATTACHED, PARTICULARLY, YOU UNDERSTAND THAT YOUR ELECTION IS IRREVOCABLE (OTHER
THAN AS SPECIFICALLY STATED IN THE ELECTION FORM), AND THAT YOU CANNOT EXERCISE
THE PORTION OF THE OPTION SUBJECT TO THE ELECTION FOR SIX MONTHS FOLLOWING THE
ELECTION DATE.
EMCOR GROUP, INC.
__________________________ By: _____________________________
Grantee Signature/Date
