UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported) April 3, 2006
--------------------------------------------------------------------------------
EMCOR Group, Inc.
--------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware
--------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
1-8267 11-2125338
--------------------------------------------------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
301 Merritt Seven, Norwalk, CT 06851
--------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(203) 849-7800
--------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
N/A
--------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
- Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
- Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
- Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
- Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry into a Material
Definitive Agreement.
Item 1.01 Entering into a Material Definitive Agreement.
On April 3, 2006, the Company entered into a Separation Agreement with
Leicle E. Chesser (the "Chesser Separation Agreement") in connection with
his resignation as Executive Vice President and Chief Financial Officer of
the Company and his election to the newly created office of Vice Chairman
of the Company through December 31, 2006 (the "Termination Date"). Under
the terms of the Chesser Separation Agreement, Mr. Chesser will receive the
benefits described below in consideration of his agreeing to remain as Vice
Chairman of the Company through December 31, 2006 and his agreement to
provide the Company with a general release and his agreement to abide by
certain confidentiality, non-competition and non-solicitation obligations.
The Chesser Separation Agreement is attached hereto as Exhibit 10.1, and is
incorporated by reference herein.
Pursuant to the Chesser Separation Agreement, it was agreed, among other
things, that Mr. Chesser shall continue to receive his base salary of
$450,000 per annum through the Termination Date. In addition, he will be
entitled to be considered for a senior executive incentive bonus with
respect to the 2006 fiscal year, which such bonus (if any) shall be payable
entirely in cash no later than March 15, 2007. Mr. Chesser shall be
entitled to continue his participation in the Company's benefit plans
through the Termination Date, and for 18 months after the Termination Date,
the Company shall pay the employer's share of his health insurance premiums
as if his employment had not been terminated.
The Separation Agreement also provides, among other things, that Mr.
Chesser may exercise the 67,400 options (as adjusted for the Company's
2-for-1 stock split effective February 10, 2006, the "Split") granted to
him on January 3, 2005 at any time prior to December 31, 2007, provided
that he may not exercise more than 22,466 of such options prior to January
3, 2007. In addition, shares issuable in respect of 6,834 restricted stock
units (as adjusted for the Split) granted to Mr. Chesser on March 3, 2005,
under the Company's Executive Stock Bonus Plan, shall be delivered on July
1, 2007, rather than on termination of employment as is provided in the
plan. Mr. Chesser also relinquished his rights under the Company's Long
Term Incentive Plan (the "LTIP"), including his rights, if any, to 15,284
stock units granted to him under the LTIP (as adjusted for the Split), but
Mr. Chesser received 5,095 restricted stock units under the Company's 2003
Management Incentive Plan, evidenced by a Restricted Share Unit Agreement
dated April 3, 2006, the form of which is attached to the Separation
Agreement as Exhibit I. The Company also agreed to pay the annual premium
for 2006 of $14,859.20 on Mr. Chesser's term life insurance policy.
In addition to agreeing to abide by confidentiality, non-competition and
non-solicitation provisions, Mr. Chesser agreed that for a period of 18
months from the Termination Date, he would make himself available to
provide consulting services to the Company upon the Company's request at
the rate of $300 per hour. In addition, he agreed to make himself available
to assist the Company in any investigations, litigation or other court
proceedings at the rate of $300 per hour.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On April 3, 2006, Mr. Chesser resigned as Executive Vice President and
Chief Financial Officer of the Company and was elected to the position of
Vice Chairman of the Company. In addition, on April 3, 2006, Mark A. Pompa,
the Company's Senior Vice President-Chief Accounting Officer and Treasurer
was elected to the position of Executive Vice President and Chief Financial
Officer of the Company. He will retain the office of Treasurer of the
Company.
In connection with Mr. Chesser's resignation as the Company's Executive
Vice President and Chief Financial Officer, the Company entered into the
Chesser Separation Agreement discussed above in Item 1.01 and attached
hereto as Exhibit 10.1 to this Current Report on Form 8-K. The terms of
such Chesser Separation Agreement are incorporated herein by reference.
On April 3, 2006, the Company issued a press release regarding Mr.
Chesser's election as Vice Chairman, and the election of Mark A. Pompa as
Executive Vice President and Chief Financial Officer of the Company. A copy
of such Press Release is filed as Exhibit 99.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Exhibit Number Description of Exhibits
10.1 Severance Agreement dated April 3, 2006 between the
Company and Leicle E. Chesser
99.1 Press Release dated April 3, 2006 relating to the
election of Leicle E. Chesser to the position of
Vice Chairman of the Company and the election of
Mark A. Pompa as the Executive Vice President,
Chief Financial Officer and Treasurer of the Company
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EMCOR GROUP, INC.
Date: April 4, 2006 By: /S/ Sheldon I. Cammaker
-------------------------------
Sheldon I. Cammaker
Executive Vice President and
General Counsel
EXHIBIT INDEX
Exhibit Number Description
10.1 Severance Agreement dated April 3, 2006 between the
Company and Leicle E. Chesser
99.1
Press Release dated April 3, 2006 relating to the
election of Leicle E. Chesser to the position of
Vice Chairman of the Company and the election of
Mark A. Pompa as the Executive Vice President,
Chief Financial Officer and Treasurer of the Company
Exhibit 10.1
EMCOR (logo)
Re: Separation Agreement and Mutual Release
Dear Leicle:
The purpose of this letter agreement and mutual general release (the
"Agreement") is to set forth the terms of our mutual agreement with regard to
your employment and separation from EMCOR Group, Inc. (the "Company").
1. The Company has informed you that effective April 3, 2006 it intends to
elect Mark A. Pompa, Senior Vice President - Chief Accounting Officer and
Treasurer of the Company, as its new Chief Financial Officer and has asked
you to take on different responsibilities. Because of that proposed change,
you have informed the Company that you propose to resign. However, the
Company has requested, and you have agreed, that you shall remain in its
employ as Vice Chairman of the Company with duties described in paragraph 2
below through December 31, 2006 (the "Termination Date").
2. From April 3, 2006 through the Termination Date you shall have
responsibility with respect to (a) analysis of proposed acquisitions,
including related due diligence, (b) integration of acquisitions into the
Company, (c) review, analysis and oversight of any proposed expansion of
the operations of the Company's Canadian subsidiary, and (d) oversight and
assistance in the transition of Mark A. Pompa to Chief Financial Officer
and the reorganization of his staff.
3. Your employment shall continue through the Termination Date at a base
salary of $450,000 per annum, which base salary shall be paid in accordance
with the Company's regular payroll practices. In addition, you shall be
entitled to be considered for a senior executive incentive bonus with
respect to the Company's 2006 operations and your personal contributions
thereto. Such bonus, if any, shall be payable entirely in cash no later
than March 15, 2007.
4. You shall be entitled, through the Termination Date, to the employee fringe
benefits that you and other senior executive offices of the Company
currently enjoy. Following the Termination Date and continuing for 18
months thereafter, the Company shall pay, in respect of the health
insurance premiums for your COBRA election, an amount equal to the
employer's share of such premiums as if your employment had not terminated.
In the event of your death, the Company shall continue to pay such portion
of the premiums for your family throughout the period noted above. In
addition, the Company shall reimburse you for any valid and reasonable
outstanding expenses incurred on its behalf during the course of your
employment with the Company after you submit vouchers or other
documentation consistent with the Company's regular reimbursement policies
and past practices.
5.
(a) The Company acknowledges that you currently hold the following
stock options, as adjusted for the 2-for-1 stock split effected
February 10, 2006 (the "Split"); that the termination of your
employment will be treated as a termination for good reason for
purposes of determining your stock option entitlements; that such
stock options will be fully vested as of the Termination Date;
and that you will have until the applicable expiration date
listed below to exercise such stock options:
Effective Date Termination Date
Award Date Quantity Vested Quantity Vested Strike Price Expiration
1/2/98 20,000 20,000 $10.00 1/1/08
1/4/99 20,000 20,000 8.10 1/3/09
1/3/00 20,000 20,000 8.78 1/2/10
1/2/01 20,000 20,000 12.72 1/1/11
12/14/01 51,800 51,800 20.85 12/14/11
1/2/02 35,000 35,000 23.18 1/2/12
1/2/03 34,098 34,098 27.37 1/2/13
1/2/04 45,590 45,590 21.92 1/2/14
(b) Notwithstanding anything contained in the Stock Option Agreement
between you and the Company dated as of January 3, 2005 which
provides for the grant to you of an option to purchase all or any
part of 67,400 shares of common stock (as adjusted for the Split)
of the Company at a price per share of $22.54 (as adjusted for
the Split), you shall be entitled to exercise all or any part of
such options, as you shall elect, at any time or from time to
time, through December 31, 2007; provided, however, no more than
22,466 options (as adjusted for the Split) may be exercisable
prior to January 3, 2007.
(c) You have been awarded 5,041 Phantom Units in respect of your 2005
bonus under the Company's Incentive Plan for Senior Executive
Officers of EMCOR Group, Inc. (the "Plan"). In accordance with
the Plan, you shall be paid in cash, on the date (the "Valuation
Date") that is six months from the Termination Date, in respect
of such Phantom Units, the cash equivalent of 5,041 shares of the
Company's common stock valued on the Valuation Date.
6. The Company and you agree that you are entitled to the following Stock
Units, as adjusted for the Split, under the Company's Executive Stock Bonus
Plan (the "Plan"); and notwithstanding anything contained in the Plan to
the contrary, that shares of the Company's common stock issuable in respect
of such Stock Units will become deliverable as follows:
Issue Date Number of Stock Units Delivery Date
March 3, 2004 6,838 Such date under the Plan as the
shares would be delivered to you
but for your termination of
employment
March 3, 2005 6,834 July 1, 2007
7.
(a) You hereby relinquish any rights to any amount payable to you
under the Company's Long Term Incentive Plan, including the award
to you thereunder of 15,284 Stock Units (as adjusted for the
2-for-1 stock split of the Company's Common Stock effected
February 10, 2006).
(b) The Company hereby awards to you under its 2003 Management Stock
Incentive Plan, 5,095 Restricted Stock Units, which Restricted
Stock Units have the terms set forth in the Restricted Stock Unit
Agreement executed contemporaneously herewith, a copy of which is
annexed hereto as Exhibit I.
8. The Company shall pay in July 2006 the annual premium of $14,859.20 on your
term life insurance policy, First Colony Life Insurance Company Policy
#6360987. Thereafter, you may (but shall not be obligated to) pay the
annual premiums for the remainder of the term of such policy. In the event
you do not make such payments, the Company shall be entitled to permit such
insurance policy to lapse.
9.
(a) You agree that for a period of 18 months from the Termination
Date you shall, on reasonable notice and at reasonable times,
make yourself reasonably available to the Company at its
principal offices or at such other places as it shall reasonably
designate to consult with it upon matters similar to those for
which you had responsibility during your employment by the
Company for which consulting services the Company will pay you at
the rate of $300 per hour plus your related reasonable
out-of-pocket expenses; provided it is understood and agreed that
the Company shall have no obligation to call upon you for
consulting services or if it does so, for any minimum period of
time.
(b) You also agree that you will, upon reasonable request, cooperate
fully with the Company and/or its affiliates and its or their
counsel in connection with any matter (including, without
limitation, any investigation, administrative proceeding or
litigation) in which you were involved or of which you may have
knowledge. The Company agrees that it will: reimburse you, at a
rate of $300 per hour, for any time you spend after the
Termination Date (other than as a testifying witness) cooperating
pursuant to this paragraph 9(b); reimburse you for any reasonable
out-of-pocket expenses you incur in cooperating pursuant to this
paragraph 9(b); and make all reasonable efforts to schedule any
necessary meetings or discussions at times and places that are
convenient in light of your business and personal schedule.
(c) If you receive a subpoena from any person or entity (including,
but not limited to, any government agency) to give testimony (in
a deposition, court proceeding or otherwise) which in any way
relates to the Company (including its subsidiaries and other
affiliates) or to your employment with the Company (including its
subsidiaries and other affiliates), you agree that you will
promptly notify the General Counsel of the Company of the
subpoena and will make no disclosure until the Company has had a
reasonable opportunity (i) to contest the right of the requesting
person or entity to such disclosure and/or (ii) to seek to
participate in the proceeding or matter in which the testimony is
to be given, except if the Company fails to timely respond then
you shall be entitled to comply with the subpoena as required by
law.
10.
(a) On the Termination Date, you shall be deemed to have resigned
from all offices and directorships then held with the Company or
any subsidiary or affiliate thereof.
(b) You and the Company shall not (except as required by law)
directly or indirectly make any statement or release any
information, or encourage others to make any statement or release
any information that is designed to embarrass or criticize the
other (or the Company's employees, directors or shareholders).
(c) During the period of your employment by the Company and for one
year following the Termination Date, you agree that, without the
prior written consent of the Company, such consent not to be
unreasonably withheld, you shall not, in any state in the United
States where a member of the Restricted Group (as that term is
hereafter defined) conducts business, directly or indirectly,
own, manage, operate, conduct, control or participate as an
officer, employee, consultant, partner, or equity owner or
otherwise, in the ownership, management, operation, conduct or
control, or accept employment with, or be connected in any other
manner with, any business (a "Business") that is in competition
with any member of the Restricted Group, except for ownership of
no more than 2% of the debt or equity securities of corporations
listed on a registered securities exchange; provided, however,
that a Business shall not be deemed to be in competition with any
members of the Restricted Group if (i) no more than 20% of the
annual consolidated revenues of such Business (based upon its
most recently completed fiscal year) are attributable to one or
more business activities ("Incidental Competitive Activity") that
are in competition with any member of the Restricted Group and
(ii) you are not engaged, directly or indirectly, in such
Incidental Competitive Activity and have no direct or indirect
responsibility for, or oversight of, such Incidental Competitive
Activity. "Restricted Group" means the Company and its
subsidiaries and affiliates. However, notwithstanding the
foregoing, you may act as a bona fide outside consultant to a
Business if such consulting services are on an assignment by
assignment basis and do not, with respect to any particular
Business, represent regular, as opposed to occasional, consulting
with such Business and any such assignment does not take any more
than 90 days.
(d) For one year following the Termination Date, you agree that you
shall not (without the prior written consent of the Company),
either on your own behalf or on behalf of any person, firm or
company, directly or indirectly, (a) solicit, encourage or
participate in soliciting or encouraging any customer or supplier
of any member of the Restricted Group, or any other person or
entity to terminate (or otherwise adversely alter) such person or
entity's customer, supplier or other relationship with such
member of the Restricted Group, and/or (b) hire any person who is
at the time of the offer of employment, or within three months
prior to such offer was, an employee of any member of the
Restricted Group or encourage or participate in soliciting or
encouraging any employee of any member of the Restricted Group to
terminate (or otherwise adversely alter) such person's employment
relationship with such member of the Restricted Group.
(e) You and the Company agree that the covenants set forth in this
paragraph 10 are reasonable covenants under the circumstances,
and further agree that, if in the opinion of any arbitration
panel or court of competent jurisdiction, such restraint is not
reasonable in any respect, this Agreement shall be deemed
modified to the least degree necessary to make this Agreement
reasonable and fully enforceable. You agree that any breach of
the covenants contained in this paragraph 10 would irreparably
injure the Company. Accordingly, you agree that the Company may,
in addition to pursuing any other remedies it may have in law or
in equity, cease making any payments and/or providing benefits
otherwise required by this Agreement, including those provided
for in paragraphs 3 and 7 hereof, and obtain an injunction
against you from any court having jurisdiction over the matter
restraining any further violation of this Agreement by you.
11. You acknowledge and agree that the payments, benefits and/or other things
of value provided to you and on your behalf pursuant to this Agreement are
in full discharge of any and all liabilities and obligations of the Company
to you, monetarily or with respect to your employment. You and the Company
acknowledge that nothing in this Agreement shall impact your right to any
vested employee benefits that may have accrued under the terms of the
Company's benefit plans prior to your Termination Date.
12.
(a) For and in consideration of the payments, benefits and other
things of value to be provided to you and/or on your behalf
pursuant to this Agreement, you, on behalf of yourself, your
heirs, dependents, executors, administrators, trustees, legal
representatives and assigns (collectively referred to as
"Releasors") hereby forever release and discharge the Company,
its parents, subsidiaries, divisions, affiliated entities,
branches, predecessors, successors and assigns (collectively
referred to herein as the "Company and/or its affiliates"), and
all of its and their past and/or present officers, directors,
agents, attorneys, representatives, insurers, employees, and
assigns, whether acting as agents for the Company, or in their
individual capacities (collectively with the Company and/or its
affiliates referred to as the "Company Entities and Persons"),
from any and all claims, demands, causes of action, expenses,
fees and liabilities of any kind whatsoever, whether known or
unknown, which Releasors ever had, now have, or hereafter may
have against any of the Company Entities and Persons by reason of
employment, breach of agreement, any actual or alleged act,
omission, transaction, practice, conduct, statement, occurrence,
or any other matter up to and including the date on which you
sign this Agreement, except that this release shall not affect
any claim by you for indemnification by the Company or
contribution from the Company or anyone else relating to claims
brought by parties other than the Company or in the name of the
Company.
(b) Without limiting the generality of the foregoing, Releasors
release and discharge the Company Entities and Persons from: (i)
any claim under federal, state or local law pertaining to
employment or employment discrimination (statutory or
decisional), including the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 200e et seq., the Fair Labor Standards Act, as amended,
29 U.S.C. Section 2601 et seq., Connecticut General Statutes
Section 46a-60 et seq. and the Americans with Disabilities Act;
(ii) any claim under the Employee Retirement Income Security Act
("ERISA"); (iii) any claim under the Family and Medical Leave Act
("FMLA"); (iv) any claim for breach of contract (express or
implied) or tort, including claims of fraud, duress, wrongful or
constructive discharge, intentional or negligent
misrepresentation, retaliatory discharge, intentional
interference with contract, detrimental reliance, defamation,
slander, libel, or emotional distress; (v) any claim under any
federal, state or local law governing wages, vacation pay, or
fringe benefits; (vi) any claim for monetary or equitable relief,
or compensatory or punitive damages; (vii) any other claim
(whether based on federal, state or local law, statutory or
decisional) in connection with, relating to, or arising out of
your employment with the Company and/or its affiliates or the
terms and conditions of such employment, including but not
limited to, the separation or termination of such employment
and/or any of the events relating directly or indirectly to such
separation or termination; and (viii) any claim for attorneys'
fees, costs, disbursements and the like (which relate to claims
referred to in clauses (i) through (vii) of this subparagraph
12(b)), which Releasors ever had, now have, or hereafter may have
against any of the Company Entities and Persons by reason of any
actual or alleged act, omission, transaction, practice, conduct,
statement, occurrence, or other matter occurring up to and
including the date on which you sign this Agreement.
(c) The provisions of paragraphs 12(a) and (b) above notwithstanding,
nothing in this Agreement shall release, diminish or otherwise
affect any vested monies or other benefits to which you may be
entitled to under any pension or retirement savings plan.
(d) You agree not to commence any proceeding (judicial,
administrative or otherwise) against the Company Entities or
persons with respect to any matter or claim released under
paragraphs 12(a) and (b) above, and you represent that you have
not done so as of the date you sign this Agreement. You further
agree that your release set forth in this Agreement may be
pleaded as a full and complete defense to any claim so released
that is or may be instituted, prosecuted or maintained by any
person or entity.
(e) The Company represents that, as of the date hereof, it is not
aware of any misconduct or neglect on your part that would
subject you to liability for your conduct at the Company, and
recognizes that you are relying on this representation in signing
this Agreement. To the extent you are eligible for
indemnification by the Company as an officer of the Company under
the Company's bylaws and certificate of incorporation or under
applicable law or otherwise, this Agreement shall have no impact
on your eligibility for such indemnification.
(f) You agree, and it shall be a condition to the Company's
obligations to provide you with the payments, benefits, and other
things of value hereunder, that you shall execute and deliver to
the Company immediately following your Termination Date an
executed form of release attached hereto as Appendix A which
release is not thereafter revoked. If you fail to do so this
Agreement shall be null and void.
(g) Each of us acknowledges, for himself/itself, he/it is agreeing to
the releases contained in this Agreement, and is releasing,
waiving and discharging rights or claims, only in exchange for
consideration that he/it is not already entitled to receive.
13.
(a) For and in consideration of the value provided to the Company
pursuant to this Agreement, the Company, its subsidiaries, and
their successors and assigns hereby forever release and discharge
you from any and all claims, demands, causes of action, expenses,
fees and liabilities of any kind whatsoever, whether known or
unknown, which the Company ever had, now has, or hereafter may
have against you by reason of employment, breach of contract,
breach of fiduciary duty, any actual or alleged act, omission,
transaction, practice, conduct, statement, occurrence, or other
matter up to and including the date hereof, other than any
claims, demands, causes of action, expenses, fees and liabilities
that arise out of (or otherwise relate to) willful misconduct, or
gross neglect, by you.
(b) The Company agrees not to commence any proceeding (judicial,
administrative or otherwise) against you, with respect to any
matter or claim released under paragraph 13(a) above, and the
Company represents that it has not done so as of the date hereof.
The Company further agrees that its release may be pleaded as a
full and complete defense to any claim so released that is or may
be instituted, prosecuted or maintained by any person or entity.
(c) You represent that, as of the date on which you sign this
Agreement, you are not aware of any misconduct or neglect on the
Company's part that would subject it to liability to you for your
conduct, and recognizes that the Company is relaying on this
representation in signing this Agreement.
14. Each of us agrees to perform any further acts and to execute and deliver
any further documents that may be reasonably necessary to carry out the
provisions of this Agreement.
15. If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability
shall not affect the remaining provisions hereof, which shall remain in
full force and effect. Any controversy or claim arising out of or relating
to this Agreement or the breach of this Agreement that cannot be resolved
by you and the Company, including any dispute as to the calculation of your
benefits or any payments hereunder, shall be submitted to arbitration in
New York, New York in accordance with the laws of the State of New York and
the procedures of the American Arbitration Association, except if equitable
relief is sought, such action may be brought in any court of competent
jurisdiction. Judgment may be entered on an arbitrator(s)' award in any
court having jurisdiction.
16. This Agreement shall be binding upon and inure to the benefit of your heirs
and representatives and the assigns and successors of the Company, but
neither this Agreement nor any rights hereunder shall be assignable or
otherwise subject to hypothecation by you (except by will or by operation
of the laws of intestate succession) or by the Company (any such purported
assignment by either shall be null and void), except that the Company may
assign this Agreement to any successor (whether by merger, purchase or
otherwise) to all or substantially all of the stock, assets or business of
the Company.
17. The Agreement may be amended at any time, but only by our mutual written
agreement. Either you or the Company may waive compliance by the other with
any provision hereof, but only by an instrument in writing executed by the
one granting such waiver.
18. All notices or communications hereunder shall be in writing, addressed as
follows:
to Executive:
Leicle E. Chesser
10 Sunrise Lane
New Milford, CT 06776
to Company:
c/o Sheldon I. Cammaker, Esq.
Executive Vice President and General Counsel
EMCOR Group, Inc.
301 Merritt Seven, 6th Floor
Norwalk, CT 06851
Any such notice or communication shall be delivered by hand or sent certified or
registered mail, return receipt requested, postage prepaid, addressed as above
(or to such other address as such party may designate in a notice duly delivered
as described above), and the actual date or delivery or mailing shall determine
the time at which notice was given.
19. Our respective rights and obligations hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this
paragraph are in addition to the survivorship provisions of any other
paragraph of this Agreement.
20. This Agreement shall be construed, interpreted, and governed in accordance
with the laws of the State of Connecticut without reference to rules
relating to conflicts of law.
21. The Company shall be entitled to withhold from payment any amount of
withholding required by law.
22. This Agreement may be executed in two or more counterparts, each of which
will be deemed an original.
23. This Agreement represents the complete understanding between you and the
Company and/or its affiliates and supercedes any and all other written and
oral agreements between you and the Company and/or its affiliates,
including, without limitation, the Severance Agreement between you and the
Company dated as of April 25, 2005 and the Continuity Agreement between you
and the Company dated as of June 22, 1998, as amended. This Agreement may
not be orally modified. No other promises or agreements shall be binding
unless in writing and signed by both the Company and you after the date
hereof.
24. You agree that as of the Termination Date (or such earlier date as the
Company may reasonably request) you will return to the Company all of the
Company's property (including confidential information) (including that of
its subsidiaries and other affiliates) in your possession or control,
including without limitation, any information in any tangible form (any
documents, memoranda and/or files, faxes, and any means of data storage
such as computer disks, CDROMS and the like, and all copies thereof),
concerning the Company, its business, employees, clients an/or projects,
and any keys, credit cards, equipment, computers, portable telephones,
identification cards, books, notes, and any other Company property. You
agree not to disclose to any person (other than an employee or agent of the
Company or an affiliate of the Company entitled to receive the same) any
confidential information relating to the business of the Company and
obtained by you while providing services to the Company, without the
consent of the Company's Board of Directors, or until such information
ceases to be confidential.
25.
(a) You are hereby advised by the Company, and acknowledge that you
have been so advised in writing, to consult independent legal
counsel of your choice before signing this Agreement. You further
acknowledge that you have had an opportunity to consider fully
the terms and conditions of this Agreement for a period of up to
twenty-one (21) days; that you have carefully read this Agreement
in its entirety; that you have had an adequate and reasonable
opportunity to consult with independent counsel of your own
choosing and have had answered to your satisfaction all questions
you had regarding this Agreement; that you fully understand all
the terms and conditions of this Agreement and their
significance; that you knowingly and voluntarily assent to, and
intend to be bound by, all the terms and conditions contained
herein; and that you are signing this Agreement voluntarily and
of your own free will.
(b) This Agreement shall not become effective until the eighth (8th)
day following your signing of this Agreement (the "Effective
Date"). You may at any time prior to the Effective Date revoke
this Agreement, but only by delivering written notice of
revocation before the end of the seventh (7th) day following your
execution of this Agreement (the "Revocation Period") to the
General Counsel of the Company. In the event that you revoke this
Agreement prior to the Effective Date, this Agreement and the
promises contained in it (including, but not limited to, the
obligation of the Company to provide payments, benefits and other
things of value hereunder) shall automatically be null and void.
We have agreed that this Agreement may be executed in counterparts, and
that signatures delivered by facsimile shall be fully effective for all
purposes. If this Agreement is acceptable to you, please date and sign it and
return a copy to me at the Company's address noted above.
Very truly yours,
EMCOR GROUP, INC.
April 3, 2006 By: /S/ Frank T. MacInnis
------------- ---------------------------
Date Frank T. MacInnis
Chief Executive Officer and
Chairman of the Board
Acknowledged, Accepted and Agreed to:
April 3, 2006 /S/ Leicle E. Chesser
------------- ---------------------------
Date Leicle E. Chesser
APPENDIX A
FORM OF RELEASE
For and in consideration of the payments, other benefits and/or other
things of value described in the Letter Agreement dated as of April 3, 2006,
between EMCOR Group, Inc. (the "Company") and me (the "Agreement"), and for
other good and valuable consideration, I, on behalf of myself and my heirs,
dependents, executors, administrators, trustees, legal representatives and
assigns (collectively "Releasors"), hereby release the Company, its parents,
subsidiaries, divisions, affiliated entities, branches, predecessors, successors
and assigns (collectively referred to herein as the "Company and/or its
affiliates"), and all of its and their past and/or present officers, directors,
agents, attorneys, representatives, insurers, employees and assigns, whether
acting as agents for the Company or in their individual capacities (collectively
with the Company and/or its affiliates referred to as the "Company Entities and
Persons") from any and all claims, demands, causes of action, expenses, fees and
liabilities of any kind whatsoever, whether known or unknown, which Releasors
ever had, now have or hereafter may have against any of the Company Entities and
Persons by reason of employment, breach of agreement, any actual or alleged act
or omission, transaction, practice, conduct, statement occurrence, or any other
matter up to the date hereof (except that this release shall not affect a claim
by Releasors for payment or benefits under the Agreement, any claim by Releasors
for indemnification by the Company or contribution from the Company or anyone
else relating to claims brought by parties other than the Company or in the name
of the Company). Such released claims include, without limitation, (i) any claim
under federal, state or local law pertaining to employment or employment
discrimination (statutory or decisional), including the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 200e et seq., the Fair Labor Standards Act, as amended, 29 U.S.C.
Section 2601 et seq., Connecticut General Statutes Section 46a-60 et seq., and
the Americans with Disabilities Act; (ii) any claim under the Employee
Retirement Income Security Act ("ERISA"); (iii) any claim under the Family and
Medical Leave Act ("FMLA"); (iv) any claim for breach of contract (express or
implied) or tort, including claims of fraud, duress, wrongful or constructive
discharge, intentional or negligent misrepresentation, retaliatory discharge,
intentional interference with contract, detrimental reliance, defamation,
slander, libel, or emotional distress; (v) any claim under any federal, state or
local law governing wages, vacation pay, or fringe benefits; (vi) any claim for
monetary or equitable relief, or compensatory or punitive damages; (vii) any
other claim (whether based on federal, state or local law, statutory or
decisional) in connection with, relating to, or arising out of my employment
with the Company and/or its affiliates or the terms and conditions of such
employment, including but not limited to, the separation or termination of such
employment and/or any of the events relating directly or indirectly to such
separation or termination; and (viii) any claim for attorneys' fees, costs,
disbursements and the like (which relate to claims referred to in the foregoing
clauses (i) through (vii)); which Releasors ever had, now have, or hereafter may
have against any of the Company Entities and Persons by reason of any actual or
alleged act, omission, transaction, practice, conduct, statement, occurrence, or
other matter occurring up to and including the date hereof.
I have read this Release carefully, acknowledge that I have been given at
least 21 days to consider all of its terms, and have been advised to consult
with an attorney and any other advisors of my choice prior to executing this
Release, and I fully understand that by signing below I am voluntarily giving up
any right which I may have to sue or bring any other claims against the Released
Parties, including any rights and claims under the Age Discrimination in
Employment Act. I also understand that I have a period of 7 days after signing
this Release within which to revoke my agreement, and that neither the Company
nor any other person is obligated to make any payments or provide any other
benefits to me pursuant to the Agreement until 8 days have passed since my
signing of this Release without my signature having been revoked. Finally, I
have not been forced or pressured in any manner whatsoever to sign this Release,
and I agree to all of its terms voluntarily.
Notwithstanding anything else herein to the contrary, this Release shall
not affect: the obligations of the Company set forth in the Agreement or other
obligations that, by their terms, are to be performed after the date hereof
(including, without limitation, obligations to me under any stock option, stock
award or incentive plans or agreements or other benefit or deferred compensation
plan, all of which shall remain in effect in accordance with their terms).
This Release, and the attached Agreement, are final and binding and may not
be changed or modified except in a writing signed by both parties to the
Agreement.
_____________________________
Leicle E. Chesser
Exhibit I
---------
EMCOR GROUP, INC.
RESTRICTED SHARE UNIT AGREEMENT
Recipient: Leicle E. Chesser Date of Grant: April 3, 2006
Number of RSUs: 5,095
Date of Vesting of RSUs:
The first business day immediately following
the day upon which the Company releases to
the public generally its results for the
fourth quarter of 2008
1. Grant of RSUs.
For valuable consideration, receipt of which is hereby acknowledged, Emcor
Group, Inc., a Delaware Corporation (the "Company"), hereby grants the
number of restricted stock units ("RSUs") listed above to the Recipient, on
the terms and conditions hereinafter set forth. This grant is made pursuant
to the terms and conditions of the Company's 2003 Management Stock
Incentive Plan (the "Plan"). Each RSU represents the unfunded, unsecured
right of the Recipient to receive a share of common stock of the Company,
$.01 par value per share (a "Share") on the date specified herein.
2. Vesting and Timing of Transfer.
(a) The Recipient will become vested in the RSUs in accordance with the
schedule set forth above.
(b) The Company shall transfer to the Recipient, after the applicable
vesting date, a number of Shares equal to the number of RSUs that
became vested on that vesting date (rounded down, if necessary, to the
next whole share).
(c) Notwithstanding Sections 2(a) and 2(b) of this Agreement, upon the
death of the Recipient or if there is a "Change of Control" of the
Company, as defined in the Plan, the Company shall cause there to be
transferred to the Recipient, as soon as practicable following his
death or Change of Control, as the case may be, a number of Shares
equal to the aggregate number of then unvested RSUs granted to the
Recipient under this Agreement. In the event of the death of the
Recipient, the transfer of Shares under this Section 2(c) shall be
made in accordance with a beneficiary designation form on file with
the Company; provided, however, that, in the absence of any such
beneficiary designation form, the transfer of Shares under this
Section 2(c) shall be made to the person or persons to whom the
Recipient's rights under the Agreement shall pass by will or by the
applicable laws of descent and distribution.
(d) Upon each transfer of Shares in accordance with Sections 2(a), 2(b)
and 2(c) of this Agreement, a number of RSUs equal to the number of
Shares transferred to the Recipient shall be extinguished.
3. Dividends.
If on any date while RSUs are outstanding hereunder the Company shall pay
any dividend on the Shares (other than a dividend referred to in Section 4
hereof), the number of RSUs granted to the Recipient shall, as of such
dividend payment date, be increased by a number of RSUs (rounded down to
the nearest whole RSU) equal to: (a) the cash value of the dividend paid on
one Share multiplied by the number of RSUs represented hereby on the
dividend record date divided by (b) the closing price of a Share on the New
York Stock Exchange on the trading day immediately preceding the dividend
payment date.
4. Adjustments Upon Certain Events.
In the event of any merger, reorganization, recapitalization, sale or other
distribution of assets of the Company, any stock or extraordinary cash
dividend, stock split, spin-off, split-up, split-off, distribution of
security or other property of the Company, or other change in the Company's
capital structure affecting Shares, the number of RSUs shall be
appropriately adjusted as determined by the Compensation and Personnel
Committee of the Board of Directors of the Company in its sole discretion
in a manner intended to prevent dilution or enlargement of the benefits of
the Recipient hereunder.
5. No Rights of a Shareholder.
The Recipient shall not have any rights or privileges as a shareholder of
the Company until the Shares in question have been registered in the
Company's register of shareholders.
6. Transferability.
Except as provided in Section 2(c) hereof, RSUs may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered
by the Recipient otherwise than by will or by the laws of descent and
distribution, and any purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance not permitted by this Section 6 shall be void
and unenforceable against the Company or any affiliate of the Company.
7. Withholding.
The Recipient may be required to pay to the Company and the Company shall
have the right and is hereby authorized to withhold from any transfer due
under this Agreement or from any compensation or other amount owing to the
Recipient, applicable withholding taxes, if any, with respect to any
transfer under this Agreement and to take such action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of
such taxes.
8. Choice of Law.
THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
9. Signature in Counterparts.
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
EMCOR GROUP, INC.
By: ________________________________
________________________________
Leicle E. Chesser, Recipient
Exhibit 99.1
MARK A. POMPA TO SUCCEED LEICLE E. CHESSER AS CHIEF FINANCIAL OFFICER OF EMCOR
GROUP - Mr. Chesser to become Vice Chairman of EMCOR Group, to retire at the end
of 2006 -
NORWALK, CONNECTICUT, April 3, 2006 - EMCOR Group, Inc. (NYSE: EME),
announced today the election of Mark A. Pompa, age 41, as Executive Vice
President and Chief Financial Officer of EMCOR Group. Mr. Pompa succeeds Leicle
E. Chesser, age 59, who has been appointed to the position of Vice Chairman of
the Company. Mr. Chesser will serve in his role as Vice Chairman until the end
of 2006, at which point he will leave the Company to retire and pursue his
philanthropic interests. Mr. Chesser has served as Chief Financial Officer since
May 1994.
Mr. Pompa brings extensive financial accounting and management experience
to his new role. Prior to becoming Chief Financial Officer, Mr. Pompa served as
the Company's Senior Vice President - Chief Accounting Officer and Treasurer and
will continue as Treasurer. From September 1994 to June 2003, he was the
Company's Vice President and Controller. Before joining EMCOR, he was an audit
and business advisory manager at Arthur Andersen, LLP. Mr. Pompa received his
bachelor's degree from Pace University; he is a Certified Public Accountant, and
a member of the American Institute of Certified Public Accountants, the
Connecticut State Society of Certified Public Accountants and Financial
Executives International. Mr. Pompa will report to Anthony Guzzi, President and
Chief Operating Officer of EMCOR Group.
Frank T. MacInnis, Chairman and Chief Executive Officer of EMCOR Group,
stated, "We all congratulate Mark on his well-deserved promotion. Mark has
worked closely with Leicle for several years, and his 20 years of financial and
accounting experience and strong performance throughout his career at the
Company make him ideally suited to take on his new role. Mark has a deep
understanding of our culture and business and is the ideal fit to lead the
financial management of the Company into the future. We look forward to his
continued contributions to our success."
Mr. Macinnis added, "On behalf of EMCOR Group and our Board of Directors,
I'd like to thank Leicle for his years of service to the Company as its Chief
Financial Officer and his many contributions to our success. Leicle has been a
part of the EMCOR family since its foundation in 1994, and his strong financial
stewardship has helped place EMCOR in its current position as the industry
leader. I look forward to working closely with Leicle in his new role as Vice
Chairman, as we focus on implementing our strategic plan."
EMCOR Group, Inc. is a Fortune 500 worldwide leader in mechanical and electrical
construction services, energy infrastructure and facilities services. This press
release and other press releases may be viewed at the Companys Web site at
www.emcorgroup.com.
This release may contain certain forward-looking statements within the meaning
of the Private Securities Reform Act of 1995. Any such comments are based upon
information available to EMCOR management and its perception thereof, as of this
date, and EMCOR assumes no obligation to update any such forward-looking
statements. These forward-looking statements may include statements regarding
market opportunities, market share growth, gross profit, backlog mix, projects
with varying profit margins, and selling, general and administrative expenses.
These forward-looking statements involve risks and uncertainties that could
cause actual results to differ materially from the forward-looking statements.
Accordingly these statements are no guarantee of future performance. Such risk
and uncertainties include, but are not limited to, adverse effects of general
economic conditions, changes in the political environment, changes in the
specific markets for EMCOR's services, adverse business conditions, availability
of adequate levels of surety bonding, increased competition, unfavorable labor
productivity and mix of business. Certain of the risks and factors associated
with EMCOR's business are also discussed in the Company's 2005 Form 10-K and in
other reports filed from time to time with the Securities and Exchange
Commission. All these risks and factors should be taken into account in
evaluating any forward-looking statements.