EXHIBIT 4.5
-----------
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the ___ day of ________, ____ by and
between EMCOR GROUP, INC., a Delaware corporation (the "Corporation"), and
__________ ("Grantee")
W I T N E S S E T H:
WHEREAS, the Corporation wishes to grant to Grantee, on the date set
forth above, a non-qualified stock option to purchase shares of Common Stock of
the Corporation, $.01 par value, upon the terms and conditions hereinafter
stated.
NOW, THEREFORE, in consideration of the premises and of the
undertakings hereinafter contained, the Corporation and Grantee agree as
follows:
1. Subject to the terms and conditions of this Agreement, the
Corporation hereby grants to Grantee a non-qualified stock option (the "Option")
to purchase all or any part of __________ shares of Common Stock of the
Corporation, $.01 par value (the "Shares"), at a price per share of $______*.
Unless sooner terminated in accordance with the terms of this Agreement and
prior to the expiration date of the Option, all or any part of the Shares
subject to the Option may be purchased on or after the first anniversary of the
date hereof at any time or from time to time; provided, however, that if
Grantee's employment with the Corporation shall be terminated at any time (a) by
the Corporation other than for Cause (as that term is defined in the Amended and
Restated Employment Agreement (the "Employment Agreement") between the Grantee
and the Corporation dated as of May 4, 1999) or by the Grantee for Good Reason
(as that term is defined in the Employment Agreement), the Option shall become
immediately
--------------------
* Figure to be inserted is fair market value on date of grant.
2
exercisable in full and remain exercisable, at any time or from time to time,
until January __, ____**. Unless sooner exercised in full or sooner terminated
as expressly provided herein, the Option shall expire ten years from the date
hereof.
2. (a) Notwithstanding the foregoing, all or any part of the Option
may be exercised in the following circumstances: (a) subject to the provisions
of Section 4 hereof, immediately upon (but prior to the expiration of the term
of the Option) the Grantee's retirement from the Corporation and all
Subsidiaries on or after his 65th birthday, (b) subject to the provisions of
Section 4 hereof, upon the disability (to the extent and in a manner as shall be
determined by the Compensation Committee (the "Committee") of the Board of
Directors of the Corporation in its sole discretion) or death of the Grantee, or
(c) upon the occurrence of such special circumstance or event as in the opinion
of the Committee merits special consideration.
(b) The Option shall be exercised by the delivery of written
notice duly signed by the Grantee to such effect ("Exercise Notice"), together
with the full purchase price of the Shares purchased pursuant to the exercise of
the Option, to the Chairman of the Board or an officer of the Corporation
appointed by the Chairman of the Board for the purpose of receiving the same.
Payment of the full purchase price shall be made as follows: in cash or by check
payable to the order of the Corporation; by delivery to the Corporation of
Shares which shall be valued at their Fair Market Value on the date of exercise
of the Option; by providing with the Exercise Notice an order to a designated
broker to sell part or all of the Shares and to deliver sufficient proceeds to
the Corporation, in cash or by check payable to the order of the Corporation, to
pay the full
--------------------
** Date to be inserted is 10th anniversary of the grant date.
3
purchase price of the Shares and all applicable withholding taxes; or by such
other methods as the Committee may permit from time to time.
(c) Within a reasonable time after the exercise of the Option, the
Corporation shall cause to be delivered to the person entitled thereto a
certificate for the Shares purchased pursuant to the exercise of the Option.
(d) Notwithstanding any other provision of the Option, the Option
may not be exercised at any time when the Option or the granting or exercise
thereof violates any law or governmental order or regulation.
(e) For purposes hereof the term Subsidiary means any corporation
50% or more of whose stock having general voting power is owned by the
Corporation or by another Subsidiary, as herein defined, of the Corporation.
3. The Option and all other rights hereunder are not transferable
or assignable by the Grantee except to the extent that the estate of the
Grantee, if deceased, may be permitted, as herein provided, to exercise it. The
Option may be exercised during the Grantee's lifetime only by him.
4. All or any part of the Option, to the extent unexercised,
shall terminate immediately, upon the termination for Cause by the Corporation
of the Grantee's employment by the Corporation or upon the termination without
Good Reason by the Grantee of the Grantee's employment by the Corporation except
that in either such case the Grantee shall have until the end of the three-month
period following the cessation of his employment with the Corporation to
exercise any unexercised part of the Option that he could have exercised on the
day on which such employment terminated; provided, that such exercise must be
accomplished prior to the expiration of the term of such Option. Notwithstanding
the foregoing, if the cessation of employment is due to Grantees retirement on
or after he attains age 65 ("Retirement") or disability (to the extent and in a
manner as shall be determined in each case by the Committee in its sole
4
discretion) or death, the Grantee (or the representative of the estate of the
Grantee, if deceased), may exercise the portion of the Option which is
unexercised at the time of such Retirement, disability or death; provided,
however, that such exercise must be accomplished prior to the expiration of the
term of the Option and (a) unless the Committee determines a longer period,
within three months of the Grantee's Retirement or disability or (b) unless the
Committee determines a longer period, within six months of the Grantee's death.
5. (a) If prior to the complete exercise of the Option there shall be
declared and paid a stock dividend upon the Shares or if the Shares shall be
split up, converted, exchanged, reclassified, or in any way substituted for,
then the Option, to the extent that it has not been exercised, shall entitle the
Grantee upon the future exercise of the Option to such number and kind of
securities or cash or other property subject to the terms of the Option to which
he would have been entitled had he actually owned the Shares subject to the
unexercised portion of the Option at the time of the occurrence of such stock
dividend, split-up, conversion, exchange, reclassification or substitution, and
the aggregate purchase price upon the future exercise of the Option shall be the
same as if the originally optioned Shares were being purchased hereunder.
(b) Any fractional shares or securities issuable upon the exercise
of the Option as a result of such adjustment shall be payable in cash based upon
the Fair Market Value of such shares or securities at the time of such exercise.
If any such event should occur, the number of Shares with respect to which the
Option remains to be issued shall be adjusted in a similar manner.
(c) Notwithstanding the foregoing, upon the dissolution or
liquidation of the Corporation, or the occurrence of a merger or consolidation
in which the Corporation is not the surviving corporation, or in which the
Corporation becomes a subsidiary of another corporation or in which the voting
securities of the Corporation outstanding
5
immediately prior thereto do not continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting securities of the Corporation or
such surviving entity immediately after such merger or consolidation, or upon
the sale of all or substantially all of the assets of the Corporation, the
Option shall terminate unless provision is made by the Corporation in connection
with such transaction for the assumption of the Option, or the substitution for
the Option of new options of the successor corporation or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
the per share exercise prices. In the event the Option terminates as aforesaid
in connection with such a dissolution, liquidation, merger, consolidation or
sale, the holder of the Option shall be entitled to receive from the Corporation
cash in an amount equal to the excess of (i) the Fair Market Value (determined
on the basis of the amount received by shareholders in connection with such
transaction) of the Shares subject to the portion of the Option not theretofore
exercised (whether or not the Option is then exercisable pursuant to its terms
or otherwise), over (ii) the aggregate purchase price which would be payable for
the Shares upon the exercise of the Option. In the event of any other change in
the corporate structure or outstanding Shares, the Committee may make such
equitable adjustments to the number of Shares and the class of shares available
under the Option as it shall deem appropriate to prevent dilution or enlargement
of rights.
(d) For purposes hereof the term Fair Market Value on a specified
date shall mean the closing price at which a Share is traded on the stock
exchange, if any, on which Shares are primarily traded or, if the Shares are not
then traded on a stock exchange, the closing price of a Share as reported on the
NASDAQ National Market System or, if the Shares are not then traded on the
NASDAQ National Market System, the average of the closing bid and asked prices
at which a Share is traded on the over-the-counter market, but if no Shares were
traded on such date, then on the last previous
6
date on which a Share was so traded, or, if none of the above are applicable,
the value of a Share as established by the Committee for such date using any
reasonable method of valuation.
6. The Corporation may postpone the issuance and delivery of
Shares pursuant to the grant or exercise of the Option until (a) the admission
of such Shares to listing on any stock exchange on which Shares of the
Corporation of the same class are then listed, and (b) the completion of such
registration or other qualification of such Shares under any State or Federal
law, rule or regulation as the Corporation shall determine to be necessary or
advisable. The Grantee shall make such representations and furnish such
information as may, in the opinion of counsel for the Corporation, be
appropriate to permit the Corporation, in the light of the then existence or
non-existence with respect to such Shares of an effective Registration Statement
under the Securities Act of 1933, as from time to time amended (the "Securities
Act"), to issue the Shares in compliance with the provisions of the Securities
Act or any comparable act. The Corporation shall have the right, in its sole
discretion, to legend any Shares which may be issued pursuant to the grant or
exercise of the Option, or may issue stop transfer orders in respect thereof.
7. If the Corporation or a Subsidiary shall be required to
withhold any amounts by reason of any Federal, State or local tax rules or
regulations in respect of the issuance of Shares pursuant to the exercise of the
Option, the Corporation or the Subsidiary shall be entitled to deduct and
withhold such amounts from any cash payments to be made to the Grantee. In any
event, the Grantee shall make available to the Corporation or Subsidiary,
promptly when requested by the Corporation or such Subsidiary, sufficient funds
to meet the requirements of such withholding; and the Corporation or Subsidiary
shall be entitled to take and authorize such steps as it may deem advisable in
order to have such funds made available to the Corporation or
7
Subsidiary out of any funds or property due or to become due to the holder of
such Option.
8. Nothing contained herein shall be construed to confer on the
Grantee any right to be continued in the employ of the Corporation or any
Subsidiary or derogate from any right of the Corporation or any Subsidiary to
retire, request the resignation of or discharge the Grantee (without or with
pay) at any time, with or without cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMCOR GROUP, INC.
By: ___________________________
__________________, Grantee
