EXHIBIT 4.4
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STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the 5th day of May, 1999 by and between
EMCOR GROUP, INC., a Delaware corporation (the "Corporation"), and Xxxxx X.
XxxXxxxx ("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 portion of 200,000 shares of Common Stock of the
Corporation, $.01 par value (the "Shares"), at a price per share of $19.75.
Unless sooner terminated in accordance with the terms of this Agreement and
prior to the expiration date of the Option, all or any portion of the Shares
subject to the Option may be purchased on or after November 21, 2006; provided
that 50,000 Shares may be purchased on or after the Fair Market Value of a Share
first equals or exceeds $25, an additional 50,000 Shares may be purchased on or
after the Fair Market Value of a share first equals or exceeds $30, an
additional 50,000 Shares may be purchased on or after the Fair Market Value of a
Share first equals or exceeds $35, and an additional 50,000 Shares may be
purchased on or after the Fair Market Value of a Share first equals or exceeds
$40. Unless sooner exercised in full the Option shall expire on November 20,
2007.
2. (a) Notwithstanding the foregoing:
(A) all or any part of the Shares subject to the Option may be
purchased at any time or from time to time on or prior to November 20, 2007 in
the event Grantee's employment with the Corporation is terminated by the
Corporation other than for Cause (as that term is defined in the Amended and
Restated Employment Agreement between the Grantee and the Corporation made as of
May 4, 1999 (the "Employment Agreement")) or by the Grantee for Good Reason (as
that term is defined in the Employment Agreement); and
(B) 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 (provided, that the Grantee may not use any Shares acquired
pursuant to a stock option plan maintained by the Corporation unless the Grantee
has beneficially owned such Shares for at least six months); by providing with
the Exercise
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Notice an order to a designated broker to sell part or all of the Shares and to
deliver sufficient proceeds to the Corporation, in cash or by check payable to
the order of the Corporation, to pay the full purchase price of the Shares and
all applicable withholding taxes; or by such other methods as the 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 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 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.
(f) 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 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
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deceased, may be permitted, as herein provided, to exercise it. The Option may
be exercised during the Grantee's lifetime only by him.
4. Except as otherwise provided in Section 2(a) (A) hereof, all
or any part of the Option, to the extent unexercised, shall terminate
immediately, upon the cessation or termination for any reason of the Grantee's
employment by the Corporation or any Subsidiary, except that the Grantee shall
have until the end of the three-month period following the cessation of his
employment with the Corporation or its Subsidiaries 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 retirement on or after attaining the age
of sixty-five (65) years, or to disability (to an extent and in a manner as
shall be determined in each case by the Committee in its sole discretion) or to
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, or of such disability or death; provided, however, that
such exercise must be accomplished prior to the expiration of the term of the
Option and (a) within three months of the Grantee's retirement or disability or
(b) within six months of the Grantee's death, as the case may be.
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
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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 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
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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.
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
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deem advisable in order to have such funds made available to the Corporation or
Subsidiary out of any funds or property due or to become due to the holder of
such Option.
8. Nothing contained herein shall be construed to confer on the
Grantee any right to be continued in the employ of the Corporation or any
Subsidiary or derogate from any right of the Corporation or any Subsidiary to
retire, request the resignation of or discharge the Grantee (without or with
pay) at any time, with or without cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMCOR GROUP, INC.
By: /s/ Xxxxx X. XxxXxxxx
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Xxxxx X. XxxXxxxx, Grantee
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