FORM 10-K/A No. 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
Commission file number 0-2315
EMCOR GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 11-2125338
- ---------------------------- -----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
101 Merritt Seven Corporate Park
Norwalk, Connecticut 06851-1060
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code
(203) 849-7800 Securities registered pursuant to
Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of each class)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes No
Indicate by check mark if disclosure of delinquent filings pursuant to Item
405 Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
Indicate by check mark whether the Registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes No
The aggregate market value of the Registrant's voting stock held by
non-affiliates of the Registrant on April 17, 2000 was approximately
$193,415,332.
Number of shares of Common Stock outstanding as of the close of business on
April 17, 2000: 10,457,592 shares.
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
(a) Identification of Directors
Frank T. MacInnis, Age 53. Mr. MacInnis has been Chairman of the Board and
Chief Executive Officer of the Company since April 1994 and President of the
Company from April 1994 to April 1997. From April 1990 to April 1994, Mr.
MacInnis served as President and Chief Executive Officer, and from August 1990
to April 1994 as Chairman of the Board, of Comstock Group Inc., a nationwide
electrical contracting company. From 1986 to April 1990, Mr. MacInnis was Senior
Vice President and Chief Financial Officer of Comstock Group, Inc. In addition,
from 1986 to April 1994 Mr. MacInnis was also President of Spie Group Inc.,
which has or had interests in Comstock Group Inc., Spie Construction Inc., a
Canadian pipeline construction company, and Spie Horizontal Drilling Inc., a
United States company engaged in underground drilling for pipelines and
communications cable. Mr. MacInnis is also a director of the Williams Companies,
Inc.
Stephen W. Bershad, Age 58. Mr. Bershad has been Chairman of the Board and
Chief Executive Officer for more than the past five years of Axsys Technologies,
Inc., a manufacturer of electronic components and controls. Mr. Bershad has been
a Director of the Company since December 15, 1994.
David A.B. Brown, Age 56. Mr. Brown has been President of The Windsor
Group, a management consulting firm of which he is a co-founder, for more than
the past five years. Mr. Brown is also a director of BTU International, Inc.,
Marine Drilling Companies, Inc.,Technical Communications Corp. and NS Group,
Inc. Mr. Brown has been a Director of the Company since December 15, 1994.
Georges L. de Buffevent, Age 62. Mr. de Buffevent has been Chairman of the
Board and Chief Executive Officer of SAGED, a French company specializing in
road construction, land development and waste management, since January 1996.
For approximately four years prior thereto, he was a business consultant. From
July 1982 to February 1992, Mr. de Buffevent was Chairman of the Board of
Directors and Chief Executive Officer of Spie-Batignolles S.A., a leading French
electrical engineering and construction company with worldwide operations. Mr.
de Buffevent has been a Director of the Company since June 19, 1998.
Albert Fried, Jr., Age 70. Mr. Fried has been Managing Member of Albert
Fried & Company, LLC, a broker/dealer and member of the New York Stock Exchange,
since 1955 and Managing Member of Buttonwood Specialists, LLC, a New York Stock
Exchange specialist firm, since 1992. Mr. Fried has been a Director of the
Company since December 15, 1994.
Richard F. Hamm, Jr., Age 40. Mr. Hamm has been Vice President, Corporate
Strategic Development & Acquisitions of Carlson Companies, Inc., a global
travel, hospitality and marketing services company, since January 1999. From
January 1997 to December 1998 he was Senior Vice President, Legal and Business
Development of Tropicana Products, Inc. ("Tropicana"), a manufacturer of fruit
juices, and Vice President and General Counsel of Tropicana from June 1993 to
January 1997. Mr. Hamm has been a Director of the Company since June 19, 1998.
Kevin C. Toner, Age 36. Mr. Toner has been Principal of Aristeia Capital
LLC, an investment manager, since June 1997 and President of the Isdell 86
Foundation, a not-for-profit organization, since December 1994. He was a private
investor from March 1995 to June 1997 and a Managing Director from December 1991
to February 1995 of UBS Securities Inc., a broker/dealer and member of the New
York Stock Exchange, engaged in corporate finance, underwriting and distribution
of high grade U.S. corporate issues and Eurobonds. Mr. Toner has been a Director
of the Company since December 15, 1994.
(b) Identification of Executive Officers
Frank T. MacInnis, Age 53. Mr. MacInnis has been Chairman of the Board and
Chief Executive Officer of the Company since April 1994 and President of the
Company from April 1994 to April 1997. From April 1990 to April 1994, Mr.
MacInnis served as President and Chief Executive Officer, and from August 1990
to April 1994 as Chairman of the Board, of Comstock Group, Inc., a nationwide
electrical contracting company. From 1986 to April 1990, Mr. MacInnis was Senior
Vice President and Chief Financial Officer of Comstock Group, Inc. In addition,
from 1986 to April 1994 Mr. MacInnis was also President of Spie Group Inc.,
which has or had interests in Comstock Group, Inc., Spie Construction Inc., a
Canadian pipeline construction company, and Spie Horizontal Drilling Inc., a
U.S. company engaged in underground drilling for pipelines and communications
cable.
Jeffrey M. Levy, Age 47. Mr. Levy has been President of the Company since
April 1997 and Chief Operating Officer of the Company since February 1994,
Executive Vice President of the Company from November 1994 to April 1997 and
Senior Vice President of the Company from December 1993 to November 1994. From
May 1992 to December 1993, Mr. Levy was President and Chief Executive Officer of
the Company's subsidiary EMCOR Mechanical/Electrical Services (East) Inc. From
January 1991 to May 1992 Mr. Levy served as Executive Vice President and Chief
Operating Officer of Lehrer McGovern Bovis, Inc., a construction management and
construction company.
Sheldon I. Cammaker, Age 60. Mr. Cammaker has been Executive Vice President
and General Counsel of the Company since September 1987 and Secretary of the
Company since May 1997. Prior to September 1987, he was a senior partner of the
New York City law firm of Botein, Hays & Sklar.
Leicle E. Chesser, Age 53. Mr. Chesser has been Executive Vice President
and Chief Financial Officer of the Company since May 1994. From April 1990 to
May 1994 Mr. Chesser served as Executive Vice President and Chief Financial
Officer of Comstock Group, Inc. and from 1986 to May 1994 he was also Executive
Vice President and Chief Financial Officer of Spie Group, Inc.
R. Kevin Matz, Age 41. Mr. Matz has been Vice President and Treasurer of
the Company since April 1996 and Staff Vice President - Financial Services of
the Company from March 1993 to April 1996. From March 1991 to March 1993, Mr.
Matz was Treasurer of Sprague Technologies Inc., a manufacturer of electronic
components.
Mark A. Pompa, Age 35. Mr. Pompa has been Vice President and Controller of
the Company since September 1994. From June 1992 to September 1994, Mr. Pompa
was an Audit and Business Advisory Manager of Arthur Andersen LLP, an accounting
firm.
<PAGE>
(c) Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's directors and executive officers, and persons who own
more than 10% of a registered class of the Company's equity securities, to file
initial reports of ownership and reports of change in ownership of common stock
and other equity securities of the Company with the Securities and Exchange
Commission and to furnish copies of such statements to the Company.
To the Company's knowledge, during the fiscal year 1999 all such
reports relating to share ownership were timely filed.
Item 11. Executive Compensation
Summary of Cash and Certain Other Compensation
The following Summary Compensation Table sets forth the compensation
awarded to, earned by or paid to each of the Chief Executive Officer and the
other four most highly compensated executive officers of the Company
(collectively, the "named executive officers") during the fiscal years ended
December 31, 1999, 1998 and 1997 for services rendered in all capacities to the
Company and its subsidiaries. For information regarding employment agreements of
the named executive officers, other than Mr. Cunningham whose employment
terminated January 31, 2000, see "'Employment Agreements" and "Continuity
Agreements" below.
<TABLE>
<CAPTION>
Summary Compensation Table
Annual Long Term
Compensation Compensation Awards(3)
-------------------------------- -----------------------------------------------
Number of
Other Annual Restricted Securities All Other
Compensation Stock Underlying Compensation
Salary Bonus (2) Award Options/SARs(4) (5)
Name and Principal Position Year ($) ($) ($) ($) (#) ($)
- --------------------------- ---- ------- ----- -------- ------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Frank T. MacInnis............ 1999 725,000 900,000 6,375 None 225,000 8,400
Chairman of the Board and 1998 700,000 800,000 31,787 None 25,000 8,400
Chief Executive Officer 1997 650,000 775,000 23,003 None None 8,400
Jeffrey M. Levy.............. 1999 465,000 600,000 8,053 None 15,000 8,400
President and 1998 450,000 400,000 8,645 None 15,000 8,400
Chief Operating Officer 1997 325,000 400,000 10,462 None None 8,400
Sheldon I. Cammaker.......... 1999 372,000 340,000 11,709 None 10,000 8,400
Executive Vice President, 1998 456,160 165,000 None None 10,000 8,400
General Counsel and Secretary 1997 430,340 150,000 None None None 8,400
Leicle E. Chesser............ 1999 365,000 410,000 16,767 None 10,000 8,400
Executive Vice President and 1998 350,000 375,000 11,936 None 10,000 8,400
Chief Financial Officer 1997 325,000 340,000 19,867 None None 8,400
Thomas D. Cunningham(1)...... 1999 325,000 150,000 16,611 None 5,000 $1,007,200(6)
Executive Vice President 1998 275,000 150,000 13,354 None 5,000 8,400
1997 126,923 100,000 15,920 None 53,000 45,827
</TABLE>
(1) Mr. Cunningham was a director of the Company until July 15, 1997. Mr.
Cunningham joined the Company as Executive Vice President on July 15, 1997
and left the Company's employ on January 31, 2000.
(2) The personal benefits provided to the named executive officers did not
exceed the disclosure threshold established by the Securities and Exchange
Commission pursuant to applicable rules. Figures represent amounts
reimbursed for the payment of taxes upon certain fringe benefits.
(3) The column specified by Item 402 (b) of Regulation S-K to report Long-Term
Incentive Plan Payouts has been excluded because the Company has no
long-term incentive compensation plans and has not had any such plan during
any portion of fiscal years 1999, 1998 and 1997.
(4) The awards set forth in this column are of stock options only. The Company
did not award stock appreciation rights.
(5) The amounts reported in this column include matching contributions of
$3,600 made by the Company under the 401(k) part of the Company's
Retirement and Savings Plan, a defined contribution profit sharing plan,
during 1999 for the account of each of the named executive officers. The
amounts reported for 1999 also include contributions of $4,800 to be paid
during 2000 in respect of 1999 by the Company pursuant to the retirement
account part of the Company's Retirement and Savings Plan for the account
of each of the named executive officers. The amount reported in this column
in respect of 1997 for Mr. Cunningham represents consulting and directors'
fees paid to him for the period January 1, 1997 through July 14, 1997 prior
to his becoming an employee of the Company.
(6) The amount reported in this column in respect of 1999 also includes
severance payments paid or to be paid to Mr. Cunningham during the year
2000. As of January 31, 2000 the employment of Mr. Cunningham, who had been
an executive vice president of the Company, was terminated by the Company.
Inasmuch as the termination of Mr. Cunningham was without Cause (as that
term is defined in his employment agreement) substantially all of the
severance payments referred to in the table were provided for in his
employment agreement. In addition to the amounts referred to in the table,
the Company has agreed to provide him coverage, at the Company's expense,
under the Company's group life, short and long-term disability, accidental
and dismemberment and travel accidental insurance policies through December
31, 2000, pay up to $35,000 for outplacement fees, and to extend the right
to exercise certain of his stock options through the original term of the
options.
<PAGE>
Stock Options and Stock Appreciation Rights
The following table sets forth certain information concerning certain
grants to the named executive officers of stock options during the last fiscal
year. As indicated under the Summary Compensation Table above, the Company did
not grant stock appreciation rights ("SARs") of any kind.
<TABLE>
<CAPTION>
Option Grants in Last Fiscal Year
Individual Grants___ Grant Date Value____
Number of % of Total
Securities Options
Underlying Granted to Exercise or Grant Date
Options Employees in Base Price Expiration Present
Granted(2) Fiscal Year ($/Sh)(1) Date Value($)(3)
<S> <C> <C> <C> <C> <C>
Frank T. MacInnis............... 200,000 63 % $19.75 November 21, 2007 $1,155,000
25,000 8 % $16.19 January 3, 2009 $ 118,000
Jeffrey M. Levy................. 15,000 5 % $16.19 January 3, 2009 $ 71,000
Sheldon I. Cammaker............. 10,000 3 % $16.19 January 3, 2009 $ 47,000
Leicle E. Chesser............... 10,000 3 % $16.19 January 3, 2009 $ 47,000
Thomas D. Cunningham............ 5,000 2 % $16.19 January 3, 2009 $ 24,000
</TABLE>
(1) The stock option exercise price for a share of Common Stock was the fair
market value of a share of Common Stock on the date of grant. No SARs,
performance units or other instruments were granted in tandem with the stock
options reported herein.
(2) Mr. MacInnis' options for 200,000 shares vest in full on November 21, 2006,
provided that with respect to successive groups of 50,000 shares of Common
Stock the options vest earlier if and when the fair market value of a share
of Common Stock first equals or exceeds $25, $30, $35, and $40,
respectively; options with respect to 50,000 shares vested during 1999. The
options referred to in this table held by Mr. MacInnis for 25,000 shares and
the options referred to in this table held by the other named executive
officers have a ten-year term and first became exercisable on January 4,
2000 and thereafter are exercisable any time or from time to time until
January 3, 2009.
(3) Present value was calculated using the Black-Scholes option-pricing model
which involves an extrapolation of future price levels based solely on past
performance. The present value as of the date of grant, calculated using the
Black-Scholes method, is based on assumptions about future interest rates,
dividend yield and stock price volatility. In calculating the present value
as of the date of grant of the options reported in the table, the Company
assumed an interest rate of 5.5% per annum, an annual dividend yield of zero
and volatility of 30.6%. There is no assurance that these assumptions will
prove to be true in the future. The actual value, if any, that may be
realized by each individual will depend on the future market price of the
Common Stock and cannot be forecasted accurately by application of an
option-pricing model.
<PAGE>
Option Exercises and Holdings
The following table sets forth certain information concerning
unexercised options to purchase Common Stock of the Company held at the end of
fiscal year 1999 by the named executive officers. None of the named executive
officers exercised any options during fiscal year 1999. No named executive
officer holds any SARs.
<TABLE>
<CAPTION>
Aggregated Option Exercises in Last Fiscal Year And
Fiscal Year-End Option Value
Value of Unexercised
Number of Unexercised In-the-Money
Shares Value Options at Options at
Acquired on Realized FY-End (#) FY-End ($)(1)
Name Exercise (#) ($) Exercisable/Unexercisable Exercisable/Unexercisable
- ---- ------------ ---- ------------------------- -------------------------
<S> <C> <C> <C> <C>
Frank T. MacInnis..................None --- 275,000/175,000 $2,700,000/51,500
Jeffrey M. Levy....................None --- 65,000/15,000 $656,000/30,900
Sheldon I. Cammaker................None --- 60,000/10,000 $656,000/20,600
Leicle E. Chesser..................None --- 60,000/10,000 $656,000/20,600
Thomas D. Cunningham...............None --- 54,834/21,666 $134,348/10,300
</TABLE>
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(1) For purposes of this column, value is calculated based on the aggregate
amount of the excess of $18.25 (the closing price of the Common Stock as
reported on the Nasdaq Stock Market on December 31, 1999) over the relevant
exercise price for a share of Common Stock with respect to the options.
Employment Agreements
The Company has amended and restated employment agreements made as of
May 4, 1999 with Frank T. MacInnis providing for his employment as Chief
Executive Officer of the Company through December 31, 2000 and with Jeffrey M.
Levy providing for his employment as President and Chief Operating Officer of
the Company through December 31, 2000. Each such employment agreement provides
that the term of employment will automatically be extended for successive
one-year periods unless the Company or the officer gives written notice not to
extend at least six months prior to the end of the initial term or any extended
term of the employment agreement. However, following the date of a Change of
Control (as defined in their employment agreements), the term of Mr. MacInnis'
and Mr. Levy's respective employment shall be for a period of three years from
such date. Under Mr. MacInnis' employment agreement, the Company is also to use
its best efforts to ensure Mr. MacInnis' election as Chairman of the Board of
Directors of the Company.
Pursuant to the terms of their respective employment agreements, Mr.
MacInnis is to receive an annual base salary of $750,000 for 2000, and Mr. Levy
is to receive an annual base salary of $485,000 for 2000. Their annual base
salaries are to increase on the first day of each calendar year during their
employment periods by the percentage increase in the consumer price index for
the preceding year for the area in which the principal office of the Company is
located or an amount specified by the Board of Directors, whichever is greater.
In addition, Mr. MacInnis and Mr. Levy are each entitled to receive an annual
bonus payable in cash ("Target Bonus"), which is to be determined by a formula
agreed upon annually by the respective officer and the Compensation and
Personnel Committee of the Board of Directors (the "Compensation Committee");
provided that Mr. MacInnis' annual Target Bonus may not be less than $600,000
and Mr. Levy's annual Target Bonus may not be less than $400,000. Pursuant to
the terms of their respective employment agreements, the Company is to recommend
to the Compensation Committee that Mr. MacInnis and Mr. Levy receive annually an
option to purchase not less than 25,000 and 15,000 shares of Common Stock,
respectively, at a per share exercise price equal to the fair market value of a
share of the Common Stock on the grant date. Each option is to have a ten-year
term and is to be exercisable on or after the first anniversary of the grant
date.
<PAGE>
In addition, pursuant to his employment agreement, Mr. MacInnis was
granted on May 5, 1999 options expiring November 21, 2007 to purchase 200,000
shares of Common Stock at a per share exercise price of $19.75, the fair market
value of a share of Common Stock on the grant date. These options vest in full
on November 21, 2006, provided that with respect to successive groups of 50,000
shares of Common Stock, the options vest earlier if and when the fair market
value of a share of Common Stock first equals or exceeds $25, $30, $35 and $40,
respectively. Under the terms of the option agreement, options with respect to
50,000 shares have vested.
Under the terms of their employment agreements, Mr. MacInnis and Mr.
Levy each has been provided with certain benefits customarily accorded to the
Company's executive officers. These benefits include, in Mr. MacInnis' case,
$700 per month for the leasing of an automobile; in Mr. Levy's case, $800 per
month for the leasing of an automobile and the cost of the lease capital
reduction payment; maintenance and insurance on their respective automobiles;
and reimbursement for initiation fees and monthly dues for membership in a club
suitable for entertaining clients of the Company, all legal expenses incurred in
connection with their employment agreements, and the cost of any increased tax
liability to them caused by receipt of these fringe benefits.
If, during the term of his employment agreement, Mr. MacInnis'
employment is terminated by the Company other than for Cause (as defined in his
employment agreement) or he terminates his employment for Good Reason (as
defined in his employment agreement), he will be entitled to receive a cash
payment equal to the sum of (i) the greater of (A) his base salary at the
highest annual rate in effect during his term of employment for the period from
the date of termination through December 31, 2000 or (B) two times his base
salary at its then current annual rate and (ii) the greater of (A) his Target
Bonus for the calendar year in which the termination takes place multiplied by
the number of full or partial calendar years remaining from the date of
termination through December 31, 2000 and (B) two times his Target Bonus for the
calendar year in which the termination takes place; however, in the event of a
termination following a Change of Control (as defined in his employment
agreement), the factor of two in clauses (i)(B) and (ii)(B) above will be
increased to three. If, during the term of his employment agreement, Mr. Levy's
employment is terminated by the Company other than for Cause (as defined in his
employment agreement) or he terminates his employment for Good Reason (as
defined in his employment agreement) he will be entitled to a cash payment equal
to the sum of (i) two times his base salary at its then current annual rate and
(ii) two times his Target Bonus for the calendar year in which the termination
occurs; however, in the event of a termination following a Change of Control (as
defined in his employment agreement) the factor of two in clauses (i) and (ii)
above will be increased to three. In addition, Messrs. MacInnis and Levy each
will be entitled to receive all unpaid amounts in respect of his bonus for any
calendar year ending before the date of termination and an amount equal to his
Target Bonus for the calendar year in which the termination takes place
multiplied by a fraction the numerator of which is the number of days in such
calendar year that he was an employee of the Company and the denominator of
which is 365.
The Company has amended and restated employment agreements made as of
May 4, 1999 with Sheldon I. Cammaker providing for his employment as Executive
Vice President and General Counsel of the Company through December 31, 2000 and
with Leicle E. Chesser providing for his employment as Executive Vice President
and Chief Financial Officer of the Company through December 31, 2000. Each such
employment agreement provides that the term of employment will automatically be
extended for successive one-year periods unless the Company or the officer gives
written notice not to extend at least six months prior to the end of the initial
term or any extended term of the employment agreement. However, following the
date of a Change of Control (as defined in their employment agreements), the
terms of Mr. Cammaker's and Mr. Chesser's respective employment shall be for a
period of three years from such date.
Pursuant to the terms of their respective employment agreements, Mr.
Cammaker is to receive an annual base salary of $380,000 for 2000 and Mr.
Chesser is to receive an annual base salary of $380,000 for 2000. Their annual
base salaries are to increase on the first day of each calendar year during the
employment periods by the percentage increase in the consumer price index for
the preceding year for the area in which the principal office of the Company is
located or an amount specified by the Board of Directors, whichever is greater.
In addition, Mr. Cammaker and Mr. Chesser are each entitled to receive an annual
cash bonus determined by the Compensation Committee, and under the term of their
respective employment agreements, the Company is to recommend to the
Compensation Committee that Messrs. Cammaker and Chesser each receive annually
an option to purchase not less than 10,000 shares of Common Stock at a per share
exercise price equal to the fair market value of a share of Common Stock on the
grant date. Each option is to have a ten-year term and is to be exercisable on
the first anniversary of the date of grant.
<PAGE>
Under the terms of their employment agreements, Messrs. Cammaker and
Chesser have been provided with certain benefits customarily accorded to the
Company's executive officers, including in Messrs. Chesser's case $800 per month
for leasing of an automobile (plus maintenance and insurance thereon) and the
cost of the lease capital reduction payment and in Mr. Cammaker's case, the use
of a Company automobile (plus maintenance and insurance thereon); and
reimbursement for all initiation fees and monthly dues for membership in a club
suitable for entertaining clients of the Company, all legal expenses incurred in
connection with their employment agreements, and the cost of any increased tax
liability caused by receipt of these fringe benefits.
If Messrs. Cammaker's or Chesser's employment is terminated during the
term of his respective employment agreement by the Company other than for Cause
(as defined in his employment agreement) or if he terminates his employment for
Good Reason (as defined in his employment agreement), he will be entitled to
receive a cash payment generally equal to the sum of (i) two times his base
salary at its then current annual rate and (ii) two times the highest bonus paid
to him during his employment by the Company ("Deemed Bonus"); however, in the
event of a termination following a Change of Control (as defined in his
employment agreement), the factor of two in clauses (i) and (ii) above will be
increased to three. In addition, Messrs. Cammaker and Chesser each will be
entitled to receive all unpaid amounts in respect of his bonus for any calendar
year ending before the date of termination and an amount equal to his Deemed
Bonus multiplied by a fraction the numerator of which is the number of days in
the calendar year in which the termination takes place that he was an employee
of the Company and the denominator of which is 365.
Continuity Agreements
Each of Messrs. MacInnis, Levy, Cammaker and Chesser (each referred to
herein as an "Executive") is a party to a Continuity Agreement with the Company.
The purpose of the Continuity Agreements is to retain the services of these
Executives and to assure their continued productivity without disturbance in
circumstances arising from the possibility or occurrence of a Change of Control
of the Company. For purposes of the agreements "Change of Control" means, in
general, the occurrence of (i) the acquisition by a person or group of persons
of 25% or more of the voting securities of the Company, (ii) the approval by the
Company's stockholders of a merger, business combination or sale of the
Company's assets, the result of which is that less than 65% of the voting
securities of the resulting corporation is owned by the holders of the Company's
Common Stock prior to such transaction or (iii) the failure of Incumbent
Directors (as defined in the Continuity Agreements) to constitute at least a
majority of the Board of Directors of the Company during any two year period.
Generally, no benefits are provided under the Continuity Agreements for
any type of termination before a Change of Control, for termination after a
Change of Control due to death, disability, any termination for Cause (as that
term is defined in the Continuity Agreement) or for voluntary termination (other
than for Good Reason) (as that term is defined in the Continuity Agreements).
Upon a Change of Control the Continuity Agreements generally provide to
the Executive a severance benefit if the Company terminates the Executive's
employment without Cause or the Executive terminates his employment for Good
Reason within two years following a Change of Control equal to the sum of three
times (i) his base salary at the time of the Change of Control, (ii) the higher
(x) of his bonus in respect of the year prior to the Change of Control or (y)
the average of his bonuses for the three years prior to the Change of Control
and (iii) the value of perquisites provided in respect of the year prior to the
Change of Control. Other severance benefits include outplacement assistance and
a continuance of insurance benefits for three years. The severance benefits
under the Executive's Continuity Agreement are reduced by any severance benefits
payable under the Executive's employment agreement.
If all or any portion of the payments or benefits referred to in the
preceding paragraphs under "Employment Agreements" and "Continuity Agreements"
either alone or together with other payments and benefits which Messrs.
MacInnis, Levy, Cammaker or Chesser receives or is then entitled to receive from
the Company, would constitute a "parachute payment" within the meaning of
Section 280G of the Internal Revenue Code (the "Code"), then such officer shall
be entitled to such additional payments as may be necessary to ensure that the
net after tax benefit of all such payments shall be equal to his respective net
after tax benefit as if no excise tax had been imposed under Section 4999 of the
Code.
<PAGE>
Director Compensation
Each director who is not an officer of the Company ("non-employee
director") is entitled to receive an annual cash retainer of $30,000 and $1,000
for each meeting of the Board of Directors he attends, other than telephonic
meetings of the Board in which case each non-employee director who participates
receives $500. Each non-employee director also receives $500 for each meeting of
a committee of the Board of Directors attended by the director, and each
non-employee director who chairs a committee of the Board of Directors receives
an additional $2,000 per annum. In addition, pursuant to the 1995 Non-Employee
Directors' Non-Qualified Stock Option Plan, each non-employee director on July
28, 1999 was granted an option to purchase 3,000 shares of Common Stock at an
exercise price of $22.13 per share. These options are fully exercisable as of
the date of grant and have a term of ten years. A director who also serves as an
officer of the Company does not receive compensation for services rendered as a
director.
Under the 1997 Directors' Stock Option Plan and the 1997 Directors'
Stock Plan, each non-employee director, in lieu of all or part of his annual
cash retainer, may elect to receive in accordance with such plans (a) options to
purchase shares of Common Stock and/or (b) deferred stock units in respect of
which shares of Common Stock will be issued following the non-employee
director's termination of service as a director of the Company. For 1999 each
non-employee Director elected to receive his annual retainer in options, and,
accordingly, each was granted options to purchase 6,828 shares Common Stock at
$16.19 per share.
Compensation Committee Interlocks and Insider Participation
During 1999, the Compensation and Personnel Committee of the Board of
Directors of the Company (the "Compensation Committee") was responsible for
matters concerning executive compensation.
Messrs. Bershad, de Buffevent and Fried each of whom is a non-employee
director, have served as members of the Compensation Committee of the Board of
Directors during 1999. No such director has had any relationship with the
Company required to be disclosed under this caption.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth as of April 17, 2000 certain information
regarding beneficial ownership of the Company's Common Stock by each person or
group known by the Company to be a beneficial owner of more than five percent of
the outstanding shares of Common Stock. Except as otherwise noted, to the
Company's knowledge, each person or group listed below has sole voting and
investment power with respect to the shares listed next to his or its name.
<TABLE>
<CAPTION>
Number of Shares Percent
Name and Address of Beneficial Owner Beneficially Owned Owned
- ------------------------------------ ------------------ -----
<S> <C> <C>
Steven A. Van Dyke ...................................................... 1,421,967(1) 13.6%.
777 South Harbour Island Boulevard
Tampa, Florida 33602
Oaktree Capital Management LLC........................................... 978,645(2) 9.4%
550 South Hope Street
Los Angeles, California 90071
Artisan Investment Corporation........................................... 972,800(3) 9.3%
1000 North Water Street, #1770
Milwaukee, Wisconsin 53202
Cumberland Associates LLC................................................ 747,900(4) 7.2%
114 Avenue of the Americas
New York, New York 10036
Albert Fried & Company................................................... 539,560(5) 5.1%
40 Exchange Place
New York, New York 10005
</TABLE>
<PAGE>
(1) As reported in Amendment No. 4 to Schedule 13D, dated February 29, 2000
filed with the Securities and Exchange Commission ("SEC") by Steven Van
Dyke and his affiliates, Douglas P. Teitelbaum, Bay Harbour Management,
L.C., Tower Investment Group, Inc., Bay Harbour 90-1, Ltd., Bay Harbour
98-1 Ltd., Trophy Hunter Investments, Ltd., Bay Harbour Investments, Inc.,
Trophy Hunters, Inc., and Bay Harbour Partners, Ltd. Includes 36,576 shares
issuable upon conversion of the Company's Convertible Debentures and 26,900
shares held in a joint account with Mr. Van Dyke's wife; of these shares,
Mr. Van Dyke has sole voting power and sole dispositive power of 30,600
shares and shared voting power and shared dispositive power of 1,397,367
shares.
(2) As reported in Amendment No. 5 dated March 1, 2000 to Schedule 13D filed
with the SEC on behalf of Oaktree Capital Management, LLC ("Oaktree"), OCM
Principal Opportunities Fund, L.P. ("Principal Fund") and OCM Opportunities
Fund II, L.P. ("Opportunities Fund"). Oaktree is the general partner of the
Principal Fund and the Opportunities Fund and the investment manager of a
third party account. Oaktree has sole voting power and sole dispositive
power of these shares.
(3) As reported in Schedule 13G dated February 10, 2000 filed with the SEC by
Artisan Investment Corporation ("Artisan") and its affiliates Artisan
Partners Limited Partnership, Andrew A. Ziegler and Carlane M. Ziegler.
Artisan and its affiliates have shared voting power and shared dispostitive
power of these shares.
(4) As reported in Amendment 3 to Schedule 13G dated February 14, 2000 filed
with the SEC. Cumberland Associates LLC has sole voting power and sole
dispositive power of 701,903 of these shares and shared voting power and
shared dispositive power of 45,997 of these shares.
(5) Albert Fried & Company, LLC ("AF&C") and Albert Fried, Jr., the
managing member of AF&C, have beneficial ownership of 539,560 shares; AF&C
has sole voting power and sole dispositive power of 478,812 of these
shares; Mr.Fried has shared voting power and shared dispositive power of
478,812 of these shares and sole voting and sole dispositive power of
60,710 of these shares, including 25,703 that may be acquired by Mr. Fried
upon exercise of presently exercisable options or options exercisable
within 60 days granted to Mr. Fried as a non-employee director under the
Company's stock option plans for non-employee directors. AF&C is a market
maker in the Company's Common Stock and Convertible Debentures and from
time to time may hold significant positions in these securities.
The following table sets forth as of April 17, 2000 certain information
regarding the beneficial ownership of the Company's Common Stock by each of the
Company's directors, its chief executive officer, each of the four most highly
compensated executive officers of the Company and all its directors and
executive officers as a group for the fiscal year ended December 31, 1999.
Except as otherwise noted, to the Company's knowledge, each of the persons
listed below has sole voting power and investment power with respect to the
shares listed next to his name.
Amount and Nature of
Name of Beneficial Owner Beneficial Ownership(1) Percent
Frank T. MacInnis........................ 303,000(2) 2.8%
Stephen W. Bershad....................... 54,203(3) *
David A. B. Brown........................ 32,703(3) *
Georges L. de Buffevent.................. 19,125(3) *
Albert Fried, Jr......................... 539,560(3)(4) 5.1%
Richard F. Hamm, Jr...................... 19,878(3) *
Kevin C. Toner........................... 33,703(3) *
Jeffrey M. Levy.......................... 81,000(2) *
Sheldon I. Cammaker...................... 70,000(2) *
Leicle E. Chesser........................ 70,000(2) *
Thomas D. Cunningham..................... 81,500(2) *
All directors and executive officers
as a group........................... 1,368,172(5) 12%
- ---------------------
* Represents less than 1%.
<PAGE>
(1) The information contained in the table reflects "beneficial ownership"
as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as
amended. All percentages set forth in this table have been rounded.
(2) Includes in the case of Mr. MacInnis 300,000 shares, in the case of
Mr. Levy 80,000 shares, in the case of each of Messrs. Cammaker and
Chesser 70,000 shares, and in the case of Mr. Cunningham 81,500
shares, that may be acquired upon the exercise of presently
exercisable options or options exercisable within 60 days granted
pursuant to the Company's stock option plans.
(3) Includes in the case of Mr. Bershad 39,203 shares, in the case of Mr.
Brown 31,703 shares, in the case of Mr. de Buffevent 18,795 shares, in
the case of Mr. Fried 25,703 shares, in the case of Mr. Hamm 19,878
shares, and in the case of Mr. Toner 28,703 shares, that may be
acquired upon exercise of presently exercisable options or options
exercisable within 60 days granted to each non-employee director
pursuant to the Company's 1995 Non-Employee Directors' Non-Qualified
Stock Option Plan and its 1997 Non-Employee Directors' Non-Qualified
Stock Option Plan, and in the case of Mr. de Buffevent an additional
330 shares that may be issued in respect of Deferred Stock Units
granted to him pursuant to the 1997 Stock Plan for Directors (the
"1997 Plan").
(4) Includes the shares referred to in Note 5 to the table above
concerning beneficial ownership of more than five percent of the
Company's outstanding shares of Common Stock.
(5) Includes 828,985 shares that may be acquired upon the exercise of
presently exercisable options or options exercisable within 60 days
granted pursuant to the Company's stock options plans and 330 shares
issuable in respect of Deferred Stock Units granted pursuant to the
1997 Plan.
Item 13. Certain Relationships and Related Transactions
None
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
EMCOR GROUP, INC.
(Registrant)
Date: April 28, 2000 By: /s/ FRANK T. MACINNIS
---------------------
Frank T. MacInnis
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below on April 28, 2000 by the following persons on
behalf of the Registrant and in the capacities indicated.
/s/ FRANK T. MACINNIS Chairman of the Board of Directors and
-----------------------------------
Frank T. MacInnis Chief Executive Officer
/s/ STEPHEN W. BERSHAD Director
-----------------------------------
Stephen W. Bershad
/s/ DAVID A.B. BROWN Director
-----------------------------------
David A.B. Brown
/s/ GEORGES L. de BUFFEVENT Director
-----------------------------------
Georges L. 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
/s/ LEICLE E. CHESSER Executive Vice President and
-----------------------------------
Leicle E. Chesser Chief Financial Officer
/s/ MARK A. POMPA Vice President and Controller
-----------------------------------
Mark A. Pompa
