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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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EMCOR Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 11-2125338
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
101 Merritt Seven
Norwalk, CT 06851
(203) 849-7800
(Address of principal executive offices including zip code)
1997 NON-EMPLOYEE DIRECTORS'
NON-QUALIFIED STOCK OPTION PLAN OF EMCOR GROUP, INC.
and
1997 STOCK PLAN FOR DIRECTORS OF EMCOR GROUP, INC.
(Full title of plan)
Frank T. MacInnis
Chairman of the Board, Chief Executive Officer
EMCOR Group, Inc.
101 Merritt Seven
Norwalk, CT 06851
(Name and address of agent for service of process)
(203) 849-7800
(Telephone number, including area code of agent for service)
-----------------
Copy to
Sheldon I. Cammaker, Esq.
EMCOR Group, Inc.
101 Merritt Seven
Norwalk, CT 06851
(203) 849-7831
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<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
------------------- ---------------- ---------------- ------------------- -------------
Proposed Proposed
Title of Amount Maximum Maximum Aggregate Amount of
Shares to be Offering Offering Registration
to be Registered(1) Price Per Price (2) Fee
Registered Share(2)
------------------- ---------------- ---------------- ------------------- -------------
------------------- ---------------- ---------------- ------------------- -------------
<S> <C> <C> <C> <C>
Common Stock, 450,000 $16.78 per $7,555,145 $2,100.33
$.01 par value shares share
------------------- ---------------- ---------------- ------------------- -------------
</TABLE>
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(1) Consists of 300,000 shares of Common Stock of the Registrant which are
issuable pursuant to options granted under the 1997 Non-Employee Directors'
Non- Qualified Stock Option Plan and 150,000 shares of Common Stock of the
Registrant which are issuable pursuant to the 1997 Stock Plan for
Directors. This Registration Statement also covers an indeterminate number
of shares of Common Stock which may be issuable by reason of stock splits,
stock dividends, or similar transactions.
(2) This price is based on the average of the high and low sales prices
reported on the NASDAQ National Market System on March 29, 1999 an is used
solely for the purpose of determining the registrqation fee pursuant to
Rule 457(h).
<PAGE>
12
EXPLANATORY NOTE
This Registration Statement includes a form of prospectus to be used by
certain persons who may be deemed to be affiliates of EMCOR Group, Inc. in
connection with the resale of shares of Common Stock received by such persons
pursuant to this Registration Statement.
<PAGE>
Prospectus
EMCOR GROUP, INC.
450,000 Shares
Common Stock ($.01 par value)
This Prospectus relates to 450,000 shares of the common stock, $.01 par
value per share (the "Common Stock"), of EMCOR Group, Inc. which may be offered
for sale from time to time for the account of selling stockholders named herein
or such other persons who may become directors of the Company after the date
hereof (the "Selling Stockholders"). The Company will not receive any of the
proceeds of this offering. The Selling Stockholders may receive shares (i) upon
the exercise of certain options heretofore or hereafter granted to the Selling
Stockholders pursuant to the Company's 1997 Non-Employee Directors'
Non-Qualified Stock Option Plan (the "1997 Stock Option Plan") and (ii) with
respect to deferred stock units heretofore or hereafter granted to the Selling
Stockholders pursuant to the Company's 1997 Stock Plan for Directors.
The Common Stock is traded on the Nasdaq National Market Tier of the
Nasdaq Stock Market under the symbol "EMCG". On March 29, 1999, the closing sale
price of the Common Stock on the Nasdaq Stock Market was $16.75 per share.
Shares may be sold by the Selling Stockholders directly, or through one
or more broker-dealers, in the over-the-counter market, in negotiated
transactions or otherwise, at prices related to the prevailing market prices or
at negotiated prices. The Selling Stockholders and any broker-dealers or
underwriters that participate with the Selling Stockholders in the distribution
of the Shares may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). In such case, any
commissions received by such broker-dealers or underwriters and any profit on
the resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution."
The Company will pay all expenses incident to the offering and sale of the
Shares to the public other than commissions and discounts of broker-dealers or
underwriters. To the extent required, the name of the Selling Stockholder, the
number of Shares to be sold, the purchase price, the name of any such
broker-dealer or underwriter and any applicable commissions with respect to a
particular offer will be set forth in an accompanying Prospectus Supplement.
Shares covered by this Prospectus may be sold either pursuant to this Prospectus
or pursuant to Rule 144 under the Securities Act.
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For information relating to certain investment considerations relating
to the Common Stock, see "Risk Factors" on page 7.
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<PAGE>
Neither the Securities and Exchange Commission nor any state securities
commission approved or disapproved these securities or determined if
this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
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The information in this Prospectus is not complete and may be changed.
The Selling Stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
Prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted
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The date of this Prospectus is March 31, 1999
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TABLE OF CONTENTS
Page
Incorporation of Certain Documents by
Reference......................... 5
Available Information............... 5
General Information................. 6
Risk Factors........................ 7
Selling Stockholders................ 11
Plan of Distribution ............... 12
Legal Matters....................... 13
Experts............................. 13
Indemnification..................... 13
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the "Commission" or "SEC")
allows the Company to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to the other information we have filed with the SEC. The information
incorporated by reference is considered to be part of the Prospectus, and later
information filed with the SEC will automatically update and supersede this
information.
We incorporate by reference the documents listed below and future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") until this offering is
complete:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "1998 10-K");
(ii) the description of Common Stock contained in the Company's
Registration Statement on Form 10/A as filed with the Commission on
August 11, 1995; and
(iii)the description of the Preferred Stock contained in the Company's
Registration Statement on Form 8-A filed on March 5, 1997.
The Company will provide without charge to any person to whom this
Prospectus is delivered, including any beneficial owner, upon written or oral
request of such person, a copy of any or all of the information that has been
incorporated by reference in this Prospectus, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
the information that has been so incorporated. Requests for such copies should
be directed to Secretary, EMCOR Group, Inc., 101 Merritt Seven, Norwalk,
Connecticut 06851.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports and other information with the
Commission. Such reports and other information can be inspected and copied at
the public reference facilities of the Commission, Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and its regional offices located
at 500 West Madison Street, 14th Floor, Chicago, Illinois 60661 and 7 World
Trade Center, Suite 1300, New York, New York 10048. Copies of such material also
can be obtained by mail from the Public Reference Section of the Commission, at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
the prescribed rates or you can obtain them by calling the SEC at
1-800-SEC-0330. The Commission also maintains a website that contains reports,
proxy and information statements and other information. The website address is:
http:/www.sec.gov.
The Common Stock is traded on the Nasdaq National Tier of the Nasdaq
Stock Market under the symbol "EMCG". Reports and other information concerning
the Company can be inspected at the offices of the Nasdaq Stock Market, Nasdaq
Regulatory Filings, 1735 K Street, NW, Washington, DC 20006-1500.
The Registration Statement on Form S-8 and the Exhibits thereto (the
"Registration Statement") filed with the Commission under the Securities Act
contains additional information regarding the Company and the 1997 Stock Option
Plan and the 1997 Stock Plan for Directors (collectively, the "Plans") and you
should refer to such Registration Statement if you want such additional
information. The Registration Statement and the Exhibits thereto may be
inspected without charge at the office of the Commission at 450 Fifth Street,
N.W. Washington, D.C. 20549 and copies thereof may be obtained from the
Commission upon payment of the prescribed fees.
GENERAL INFORMATION
The Company is the largest mechanical and electrical construction and
facilities services firm in the United States and Canada and one of the largest
in the United Kingdom and the world with 1998 revenues totaling more than $2.2
billion.
Worldwide, the Company employs approximately 15,000 people.
The Company specializes in the design, integration, installation and
start-up of:
o distribution systems for electrical power (including power cables,
conduits, distribution panels, transformers,generators, uninterruptible
power supply systems and related switch gear and controls);
o lighting systems, including fixtures and controls;
o low-voltage systems, including fire alarm, security, and process
control systems;
o voice and data communications systems, including fiber-optic and low
voltage copper cabling;
o heating, ventilation, air conditioning, refrigeration and clean-room
process ventilation systems; and
o plumbing, process and high-purity piping systems.
The foregoing services generally fall into one of two categories:
(i) large installation projects with contracts often in the
multi-million dollar range which are performed in connection with
construction of industrial and commercial buildings and
institutional and public works facilities or with the fit-out of
large blocks of space within commercial buildings; and
(ii) smaller installation projects typically involving fit-out,
renovation and retrofit work.
The Company also provides services to support a customer's facilities.
These services, frequently referred to as facilities services, include the
provision of technical support services to our customers, following completion
of construction projects, such as maintenance and service of mechanical and
electrical systems and small modification and retrofit projects that support the
day-to-day needs of our customers. In addition, services are provided to owners,
operators, tenants and managers of facilities of all types on both a contract
basis for a specified period of time and on an individual task order basis.
Facilities services also include customer-based operations and
maintenance, mobile maintenance, service, small modification and retrofit
projects, consulting, program development and management for energy systems, and
maintenance activities. We provide services to a wide range of commercial,
industrial and institutional facilities, including those for which we provided
construction services and for which construction services were provided by
others. The services are frequently bundled to provide integrated service
packages and may include services in addition to the Company's core mechanical
and electrical services.
The Company has experienced increased demand for such support services
which it believes is driven by customers' downsizing programs and their
concomitant focus on core competencies, the increasing technical complexity of
their facilities and their mechanical, electrical, voice and data and other
systems, and the need for increased reliability, especially in mechanical and
electrical systems. These trends have led to outsourcing and privatization
programs whereby customers in both the private and public sectors seek to
contract out their non-core activities (i.e. those activities that support but
are not directly involved in the customer's business.)
The Company was incorporated in Delaware on March 31, 1987. The Company's
principal executive offices are located at 101 Merritt Seven, Norwalk, CT 06851,
and its telephone number is (203) 849-7800. The Company maintains a website at
www.emcorgroup.com.
RISK FACTORS
Prospective investors should carefully consider all of the information
set forth in or incorporated by reference in this Prospectus and, in particular,
the following specific risk factors in evaluating an investment in the Company's
common stock.
Competition. The business in which the Company participates is
competitive. Much of the Company's revenues arise from jobs which are awarded on
the basis of competitive bids; however, an invitation to bid is often
conditioned upon prior experience, technical capability and financial strength.
The Company competes with national, regional and local companies. There can be
no assurance, however, that the Company will compete successfully with its
existing competitors or with any new competitors. The highly competitive nature
of the mechanical and electrical construction services operations forces the
Company to charge competitive market rates for its services which results in
narrow operating margins. Any reduction in operating margins could have a
material impact on the financial condition of the Company.
Risks of Fixed Price Contracts; Bid and Performance Bonds. Approximately
75% of the Company's U.S. mechanical and electrical construction contracts are
fixed price contracts. The Company's profitability in this market is therefore
dependent on its ability to predict accurately the costs associated with its
services. Some of these costs may be affected by factors beyond the Company's
control. If the Company is unable to predict accurately the costs of fixed price
contracts, certain projects could have lower margins than anticipated, which
could have a material adverse effect on the Company's results of operations or
financial condition.
Often institutional and public works projects are long-term, complex
projects that require bid and performance bonds. There can be no assurance that
the Company will be able to obtain bid and performance bonds in the future and
the inability to procure such bonds could have a material adverse effect on the
Company's business, operating results and financial condition.
Net Operating Loss Carryforwards. The Company and its subsidiaries have
federal net operating loss ("NOL") carryforwards of approximately $150 million,
which are available to reduce future federal income taxes. It is possible that
certain changes in the Company's ownership, including prior ownership changes
and future issuances of securities of the Company, could result in the Company's
having a change of ownership under Section 382 of the Internal Revenue Code.
Generally, Section 382 limits the amount of NOL carryforwards that can be
utilized in any year to offset taxable income following a change in control of a
corporation. If such a change of control occurs, the Company would be limited in
the amount of its NOLs it could utilize annually to an amount equal to the
equity value of the Company immediately prior to the change multiplied by the
long-term tax exempt rate in effect for the month in which such change of
control occurs. This limitation could delay use of the NOLs and might preclude
their full utilization. The NOLs expire, if unused, between 2007 and 2010. In
addition, the NOL carryforwards are subject to adjustment upon review by the
Internal Revenue Service. See Note G of Notes to Consolidated Financial
Statements included in the Company's Annual Report on Form 10-K incorporated by
reference herein.
Cyclicality and Seasonality. Our mechanical and electrical construction
operations are cyclical and influenced by various economic factors including
interest rates and general fluctuations of the business cycle. Although the
Company provides these services to a broad range of commercial, industrial and
institutional customers around the world, cyclicality of the construction
industry and instability of general economic conditions could have an adverse
effect on the Company's revenues and profitability. The Company is seeking to
expand its facilities services activities in North America which would be less
susceptible to downswings in the economy than the more cyclical construction
market. In addition, our mechanical and electrical construction operations are
subject to seasonal variations. Specifically, the demand for construction
services is lower during winter months as a result of inclement weather
conditions. Accordingly, the Company's revenues and operating results are
generally lower in the first and second quarters.
Variability of Quarterly Operating Results. The Company's revenues and
operating results also vary from quarter to quarter as a result of a number of
factors, including installation projects commenced and completed during a
quarter, the number of business days in a quarter and the size and scope of
projects. Because a significant portion of the Company's expenses are fixed, a
variation in the number of projects, progress on projects, or the timing of the
initiation or the completion of projects can cause significant variations in
operating results from quarter to quarter.
Expansion of Facilities Services Business. Part of the Company's
strategy is to expand its facilities services activities. There can be no
assurance that the Company will be able to identify attractive opportunities in
this market, or obtain additional significant contracts for its services. If the
North American market for facilities services fails to develop or develops more
slowly than the Company anticipates, the Company's facilities services
operations could become financially burdensome to maintain. This could adversely
affect the Company's business, financial condition and results of operations.
The Company also intends to pursue the acquisition of additional
facilities services businesses as part of its growth strategy. However, due to
increased competition for acquisition candidates, there can be no assurance that
the Company will be able to identify and acquire additional facilities services
businesses at attractive prices, profitably manage additional businesses or
successfully integrate any acquired businesses into the Company without
substantial costs, delays, or other operational or financial problems.
Absence of Dividends. The Company does not anticipate paying cash
dividends on its Common Stock in the foreseeable future. The Company's working
capital credit facility limits the payment of dividends on its Common Stock.
Certain Litigation Proceedings. The Company's subsidiary Dynalectric
Company ("Dynalectric") is a party to an arbitration proceeding in which
Computran Systems Corp. ("Computran") is seeking to recover damages from
Dynalectric in connection with Dynalectric's participation in a joint venture
with Computran. Dynalectric believes that Computran's claims are without merit
and has been defending this matter vigorously. Dynalectric has filed
counterclaims against Computran. The arbitration was completed in November, 1998
and we are awaiting a decision.
In February 1995, as part of an investigation by the New York County
District Attorney's office into the business affairs of Herbert Construction
Company ("Herbert"), a general contractor that then did business with the
Company's subsidiary, Forest Electric Corporation ("Forest"), a search warrant
was executed at Forest's executive offices. At that time, the Company was
informed that Forest and certain of its officers are targets of the continuing
investigation. Forest performs electrical contracting services primarily in the
New York City commercial market and is one of the Company's largest
subsidiaries. Neither the Company nor Forest has been advised of the precise
nature of any suspected violation of law by Forest or its officers. On April 7,
1997, Ted Kohl, a principal of Herbert, pled guilty to one count of money
laundering, one count of offering a false instrument for filing and one count of
filing a false New York State Resident Income Tax Return. DPL Interiors, Inc., a
Company allegedly owned by Mr. Kohl, also pled guilty to one count of failing to
file New York City General Income Tax Returns. Mr. Kohl and DPL Interiors, Inc.
have not yet been sentenced.
On July 31, 1998 a former employee of a subsidiary of EMCOR filed a
class-action complaint on behalf of the participants in two employee benefit
plans sponsored by the Company against the Company and other defendants for
breach of fiduciary duty under the Employee Retirement Income Security Act. All
of the claims relate to alleged acts or omissions which occurred during the
period May 1, 1991 to December 1994. The principal allegations of the complaint
are that the defendants breached their fiduciary duties by causing the plans to
purchase and hold stock of the Company (when it was then known as JWP INC.) and
when the defendants knew or should have known it was imprudent to do so. The
plaintiff has not made claim for a specific dollar amount of damages but
generally seeks to recover for the benefit plans the loss in value of JWP stock
held by the plans. The Company and the other defendants intend to vigorously
defend the case. Insurance coverage may be applicable under a Company pension
trust liability insurance policy for the Company and those present and former
employees of EMCOR who are defendants in the action.
Substantial settlements or damage judgments arising out of these matters
could have a material adverse effect on the Company's business, operating
results and financial condition.
Certain Antitakeover Effects. The Company's Restated Certificate of
Incorporation, Amended and Restated By-Laws and the Delaware General Corporation
Law include provisions that may be deemed to have antitakeover effects and may
delay, defer or prevent a takeover attempt that stockholders might consider to
be in their best interests. The Company's Restated Certificate of Incorporation
provides that stockholders may not act by written consent. The Company's Amended
and Restated By-Laws provide that annual and special stockholders meetings may
be called only by an officer of the Company instructed by the Board of Directors
to call such meetings. In addition, the Company's Board of Directors is
authorized to issue "blank-check" preferred stock which could render more
difficult or discourage an attempt to obtain control of the Company by means of
a tender offer, merger, proxy contest or otherwise and could have an adverse
effect on the market price of the Common Stock. The Company has no present plan
to issue any shares of Preferred Stock. In addition, the Company has adopted a
stockholder rights plan which is designed to discourage hostile takeover offers
for the Company by threatening significant dilution of the bidder's interest in
the Company upon the occurrence of certain triggering events.
Dependence on Senior Management. The Company's business is managed, and
its business strategies formulated, by a relatively small number of key
executive officers and other personnel. The loss of these key management persons
could have a material adverse effect on the Company.
Year 2000 Issue; Computer System Upgrade. The Year 2000 issue concerns
the potential inability of certain systems to properly recognize and process
date sensitive information beyond January 1, 2000. The Company has performed a
comprehensive review of its internal application systems ("Internal Systems"),
including information technology ("IT") and Non-IT systems, to identify those
systems that could be affected by the Year 2000 issue (the "Issue") and has
developed a plan to resolve the Issue. The Company is utilizing both internal
and external resources to identify, correct or reprogram,. and test its systems
to ensure Year 2000 compliance.
The Company estimates that it is approximately 75% complete with its
Internal Systems' modifications and expects the balance of any required
modifications to be completed by mid 1999. Cost estimates of testing and
converting system applications range from $1.0 million to $2.0 million.
Modification costs will be expensed as incurred and costs of new software will
be capitalized and amortized over the expected useful life of the related
software.
The Company expects its Year 2000 conversion project to be completed
before January 1, 2000. While the Company believes its planning efforts are
adequate to address its year 2000 concerns, the Company's operations and
financial results could be adversely impacted by the Year 2000 issue if the
conversion schedule and cost estimate for its Internal Systems are not met or
suppliers and other businesses on which the Company relies do not address the
Issue successfully. The Company is requesting that its significant suppliers
confirm that they have plans achieving Year 2000 compliance. The Company
continues to assess these risks in order to reduce an impact on the Company.
The Company has not yet been able to clearly identify the most
reasonably likely worst case scenarios and the appropriate contingency plans for
such scenarios. As the Company completes all phases of its Year 2000 conversion
project, it will prepare contingency plans to deal with noncompliant systems
where it determines the risks of noncompliance are significant.
Based on currently available information, the Company does not believe
that the matters discussed above related to its Internal Systems or to services
provided to customers will have a material adverse impact on the Company's
financial condition or overall trends in results of operations; however, it is
uncertain to what extent the Company may be affected by such matters. In
addition, there can be no assurance that the failure to ensure year 2000
capability by a supplier, customer or another third party would not have a
material adverse effect on the Company.
Price Volatility of Common Stock. The trading price of the Common Stock
could be subject to wide fluctuations in response to quarter-to-quarter
variations in operating results, changes in earnings estimates by analysts,
announcements of acquisitions or new strategies by the Company or its
competitors, general conditions in the economy or in the markets in which the
Company operates or other developments affecting the Company, its clients or its
competitors, some of which may be unrelated to the Company's performance. These
conditions could materially adversely affect the market price of the Common
Stock.
SELLING STOCKHOLDERS
Each of the Selling Stockholders is a director or former director of the
Company; accordingly, such persons may be deemed "affiliates" of the Company
within the meaning of the Securities Act. The following table sets forth as of
February 28, 1999 certain information with regard to the beneficial ownership of
the Common Stock by the Selling Stockholders. In addition, certain members of
the Board of Directors of the Company may be granted additional options to
purchase shares of Common Stock pursuant to the 1997 Stock Option Plan or
additional deferred stock units pursuant to the 1997 Stock Plan for Directors
and, upon receipt of shares upon exercise of such options or pursuant to such
deferred stock units, may sell such shares of Common Stock pursuant to this
Prospectus.
<PAGE>
<TABLE>
<CAPTION>
Number of Number of
Shares Shares
Name Owned Prior to Offered Shares Owned After Offering
Offering(2) Hereby(3)
Number Percentage
<S> <C> <C> <C> <C>
Stephen W. Bershad .................................... 42,402 32,402 15,000 *
David A. B. Brown ..................................... 25,902 24,902 1,000 *
Georges L.de Buffevent ................................ 12,324(5) 12,324(5) -0- *
Albert Fried, Jr ...................................... 28,909 18,902 10,007(4) *
Richard F. Hamm Jr .................................... 13,077 13,077 -0- *
Malcolm T. Hopkins(1) ................................ 28,300(5) 10,000 18,300(5) *
Kevin C. Toner ........................................ 26,902 21,902 5,000 ___
- ------------------------------------------------------- ------ ------ ------
- ------
Total 177,816 141,809 36,007
</TABLE>
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* Less than one per cent.
(1) Mr. Hopkins did not stand for re-election as a director of the Company at
the June 1998 annual meeting of stockholders.
(2) Includes all shares of Common Stock held by the Selling Stockholders as of
February 28, 1999 and assumes exercise of all vested options held as of such
date to purchase shares of Common Stock granted to the Selling Stockholders
pursuant to the 1997 Option Plan and/or the 1995 Non-Employee Directors'
Non-Qualified Stock Option Plan.
(3) Assumes offer and sale of all the shares of Common Stock eligible to be
offered and sold hereby by the Selling Stockholders.
(4) Includes 10,007 shares of Common Stock owned by Albert Fried & Company, LLC,
of which Mr. Albert Fried, Jr. is the Managing Member.
(5) Includes in the case of Mr. de Buffevent 330 deferred stock units and in the
case of Mr. Hopkins 1,800 deferred stock units issued under the 1997
Director's Stock Plan.
PLAN OF DISTRIBUTION
The sale of the Shares by the Selling Stockholders may be carried out
from time to time directly or through one or more broker-dealers, in the
over-the-counter market, in negotiated transactions or otherwise, or through a
combination of such methods of sale, at fixed prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Stockholders may
carry out such transactions by selling the Shares to or through broker-dealers
or underwriters, and such broker-dealers or underwriters may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders and/or the purchasers of the Shares for whom such
broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer may be in excess of
customary compensation). None of the proceeds of the sale of the Shares by the
Selling Stockholders will be received by the Company.
The Selling Stockholders and any broker-dealers or underwriters that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, in which event any discounts, concessions or commissions
received by such broker-dealers or underwriters and any profit on the resale of
the Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. To the extent required, the number of Shares
to be sold, the purchase price, the name of any such broker-dealer or
underwriter and any applicable discounts, concessions or commissions with
respect to a particular offer will be set forth in an accompanying Prospectus
Supplement.
In order to comply with certain state securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the Shares may not be sold
unless the Shares have been registered or qualified for sale in such states or
an exemption or qualification is available and is complied with.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Sheldon I. Cammaker, General Counsel of the
Company, 101 Merritt Seven, Norwalk, Connecticut 06851. Mr. Cammaker has been
granted options to purchase 70,000 shares of Common Stock under the Company's
1994 Management Stock Option Plan.
EXPERTS
The audited consolidated financial statements incorporated by reference
in this Prospectus and elsewhere in the Registration Statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") and Article VI of the Company's By-laws provides for the indemnification
under certain conditions of directors and officers, acting in their official
capacities. In addition, the Company has entered into indemnification agreements
with the directors and certain officers of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Company pursuant to the DGCL, the Company's By-laws or otherwise, the Company
has been informed that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
<PAGE>
--------------------------
450,000 Shares
EMCOR GROUP, INC.
Common Stock
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Prospectus
March 31, 1999
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The documents containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents need not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act. See Rule 428(a)(1) under the Securities Act.
This Registration Statement on Form S-8 of EMCOR Group, Inc., a Delaware
corporation (the "Company"), covers an aggregate 450,000 shares of the Company's
Common Stock, par value $0.01 per share, reserved for issuance under the
Company's 1997 Non-Employee Directors Non- Qualified Stock Option Plan and the
Company's 1997 Stock Plan for Directors.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Annual Report
referred to in (a) above.
(c) The description of the Company's Common Stock, $0.01 par value,
contained in the Company's Registration Statement on Form 10/A
under the Exchange Act, filed with the Commission on August 11,
1995.
(d) The description of the Preferred Stock contained in the Company's
Registration Statement on Form 8-A filed on March 5, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such reports and documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
Sheldon I. Cammaker, Executive Vice President, General Counsel and
Secretary of the Company, has provided an opinion to the Company as to the
validity of the shares of Common Stock of the Company, being registered by this
Registration Statement on Form S-8. Mr. Cammaker has been granted options to
purchase 70,000 shares of Common Stock under the Company's 1994 Management Stock
Option Plan.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides, as do the
charters of many other publicly held companies, that the personal liability of
directors of the Company to the Company is eliminated to the maximum extent
permitted by Delaware law. The Restated Certificate of Incorporation and By-Laws
provide for the indemnification of the directors, officers, employees, and
agents of the Company and its subsidiaries to the full extent that may be
permitted by Delaware law from time to time, and the By-Laws provide for various
procedures relating thereto. Certain provisions of the Restated Certificate of
Incorporation protect the Company's directors against personal liability for
monetary damages resulting from breaches of their fiduciary duty of care, except
as set forth below. Under Delaware law, absent these provisions, directors could
be held liable for gross negligence in the performance of their duty of care,
but not for simple negligence. The Restated Certificate of Incorporation
absolves directors of liability for negligence in the performance of their
duties, including gross negligence. However, the Company's directors remain
liable for breaches of their duty of loyalty to the Company and its
stockholders, as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and transactions
from which a director derives improper personal benefit. The Restated
Certificate of Incorporation also does not absolve directors of liability under
section 174 of the Delaware General Corporation Law, which makes directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions in certain circumstances and expressly sets forth a negligence
standard with respect to such liability.
Under Delaware law, directors, officers, employees and other
individuals may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation (a
"derivative action")) if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interest of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe their conduct was unlawful. A similar standard of care is applicable
in the case of a derivative action, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and the General Corporation Law requires court
approval before there can be any indemnification of expenses where the person
seeking indemnification has been found liable to the Company.
The Restated Certificate of Incorporation provides, among other
things, that each person who was or is made a party to, or is threatened to be
made a party to, or is involved in, any action, suit, or proceeding by reason of
the fact that he or she is or was a director or officer of the Company (or was
serving at the request of the Company as a director, officer, employee, or agent
for another entity), will be indemnified and held harmless by the Company to the
full extent authorized by Delaware law against all expense, liability, or loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts to be paid in settlement) reasonably incurred by such person in
connection therewith. The rights conferred thereby will be deemed to be contract
rights and will include the right to be paid by the Company for the expenses
incurred in defending the proceedings specified above in advance of their final
disposition.
The Company is party to an indemnification agreement with each of
its directors and officers. These indemnification agreements provide for, among
other things, the indemnification by the Company of its directors and officers
to the fullest extent permitted by law and the advancement of attorney's fees
and expenses.
The agreements also state that in the event of a potential change in control,
the Company shall establish trusts, which are irrevocable except upon the
indemnitees' written consent, to fund its indemnification obligations
thereunder.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
Exhibit No. Description
4.1 1997 Non-Employee Directors' Non-Qualified Stock Option
Plan of the Company (filed as Exhibit 10(k) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1998 (the "1998 Form 10-K")).
4.2 1997 Stock Plan for Directors of the Company. (filed as
Exhibit 10(l) to the 1998 Form 10-K).
5.0 Opinion of Sheldon I. Cammaker, Esq.*
15.0 Not Applicable
23.1 Consent of Sheldon I. Cammaker, Esq. (included in Exhibit
5 hereto).*
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.*
25.1 Powers of attorney (included on signature page of this
Registration Statement).
- ----------------
* Filed herewith
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended, that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by the Registrant is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norwalk, State of Connecticut on the 31 day of March,
1999.
EMCOR GROUP, INC.
By: /s/ Frank T. MacInnis
Frank T. MacInnis
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Frank T. MacInnis, Sheldon I. Cammaker
and Leicle E. Chesser, or any of them, his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or any of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed by the following persons on March 31,
1999 in the capacities indicated.
Signatures Capacities in Which Signed
/s/ Frank T. MacInnis Chairman of the Board and
Frank T. MacInnis Chief Executive Officer
(Principal Executive Officer)
/s/ Leicle E. Chesser Executive Vice President and
Leicle E. Chesser Chief Financial Officer
(Principal Financial Officer)
/s/ Mark A. Pompa Vice President and
Mark A. Pompa Controller
/s/ Stephen W. Bershad Director
Stephen W. Bershad
/s/ David A. B. Brown Director
David A. B. Brown
/s/ Georges de Buffevent Director
Georges de Buffevent
/s/ Albert Fried, Jr. Director
Albert Fried, Jr.
/s/ Richard F. Hamm, Jr. Director
Richard F. Hamm, Jr.
/s/ Kevin C. Toner Director
Kevin C. Toner
<PAGE>
Exhibit 5
March 31, 1999
EMCOR Group, Inc.
101 Merritt Seven
Norwalk, CT 06851
Gentlemen:
With respect to the Registration Statement on Form S-8 filed by EMCOR
Group, Inc. with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1993, as amended, 450,000 shares of your
Common Stock, par value $.01 per share, to be issued pursuant to the exercise of
stock options under your 1997 Non-Employee Directors' Non-Qualified Stock Option
Plan and the 1997 Stock Plan for Directors (collectively, the "Plans"), I am
acting as counsel for you.
I wish to advise you that in my opinion the 450,000 shares to be issued
by you pursuant to options and deferred stock units granted under the Plans,
when issued in accordance with the respective terms of the Plans, will be
legally issued, fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Prospectus. In giving this consent, I do not thereby admit that
I am within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission.
Very truly yours,
Sheldon I. Cammaker
Executive Vice President,
General Counsel and
Secretary
SIC:jb
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 24, 1999,
included in EMCOR Group, Inc.'s Form 10-K for the year ended December 31, 1998,
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Stamford, Connecticut,
March 31, 1999
