UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported) March 2, 2005
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EMCOR Group, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
0-2315 11-2125338
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(Commission File Number) (I.R.S. Employer Identification No.)
301 Merritt Seven, Norwalk, CT 06851
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(Address of Principal Executive Offices) (Zip Code)
(203) 849-7800
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
- Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
- Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
- Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
- Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On March 2, 2005, the Compensation and Personnel Committee (the
"Committee") of the Board of Directors of EMCOR Group, Inc. (the "Company") took
the following actions with respect to the compensation of the Company's
executive officers (as defined in Item 402(a)(3) of Regulation S-K):
1.Established 2005 annual base salary compensation as of January 1, 2005,
as follows: Frank T. MacInnis, Chairman of the Board and Chief Executive
Officer, $840,000; Anthony Guzzi, President and Chief Operating Officer,
$540,000; Sheldon I. Cammaker, General Counsel and Executive Vice President,
$435,000; Leicle E. Chesser, Chief Financial Officer and Executive Vice
President, $435,000; R. Kevin Matz, Senior Vice President, Shared Services,
$350,000; and Mark A. Pompa, Senior Vice President, Chief Accounting Officer and
Treasurer, $340,000.1
2.Awarded bonuses in respect of 2004 payable on March 3, 2005 as follows:
Frank T. MacInnis, Chairman of the Board and Chief Executive Officer, $875,000;
Anthony Guzzi, President and Chief Operating Officer, $175,000; Sheldon I.
Cammaker, General Counsel and Executive Vice President, $280,000; Leicle E.
Chesser, Chief Financial Officer and Executive Vice President, $350,000; R.
Kevin Matz, Senior Vice President, Shared Services, $252,000; and Mark A. Pompa,
Senior Vice President, Chief Accounting Officer and Treasurer, $252,000. The
amount of Mr. Guzzi's 2004 bonus was provided for in an offer letter dated
October 12, 2004 (the "Guzzi Offer Letter") delivered to him by the Company
prior to his joining the Company.
Pursuant to the terms of the Company's Executive Stock Bonus Plan (the
"Bonus Plan"), each of such executive officers, other than Mr. Guzzi, is
required to accept 25% of his 2004 bonus in the form of restricted stock units
(the "RSUs"). Each such officer also was entitled to elect to take a larger
percentage of his 2004 bonus in RSUs. The form of certificates representing such
voluntary and mandatory RSUs are attached hereto as Exhibits 10.1 and 10.2,
respectively, and are incorporated herein by reference. The number of RSUs
awarded to each such officer is equal to the amount of the bonus to be paid in
the form of RSUs divided by $40.97, 85% of the closing price of a share of the
Company's Common Stock on March 3, 2005 which is the date of the payment of the
bonus award. Each such RSU will be converted into a share of Common Stock on the
earliest of (i) a date that the executive officer elected in 2004 but in no
event earlier than the first business day immediately following the day upon
which the Company releases to the public generally its results in respect of the
fourth quarter of 2007, which is the third calendar year following the year in
respect of which such RSUs were issued, (ii) the executive officer's termination
of employment for any reason, or (iii) immediately prior to a "change of
control" (as defined in the Bonus Plan). Each of such officers is to receive the
following percentage of his 2004 bonus in RSUs, rather than in cash, which
percentage represents the sum of 25% plus the additional percentage of his bonus
that he elected to receive in RSUs, if any: Frank T. MacInnis, Chairman of the
Board and Chief Executive Officer, 25%; Sheldon I. Cammaker, General Counsel and
Executive Vice President, 35%; Leicle E. Chesser, Chief Financial Officer and
Executive Vice President, 40%; R. Kevin Matz, Senior Vice President, Shared
Services, 38%; and Mark A. Pompa, Senior Vice President, Chief Accounting
Officer and Treasurer, 35%.
As previously reported on Form 8-K (Date of Report, October 12, 2004),
pursuant to the terms of the Guzzi Offer Letter, Mr. Guzzi's 2004 bonus is
payable in its entirety in cash.
The Company intends to provide additional information regarding the
compensation awarded to named executive officers in respect of the Company's
2004 fiscal year in the Company's proxy statement for the 2005 annual meeting of
stockholders.
3.Approved the Incentive Plan for Senior Executive Officers of EMCOR Group,
Inc. attached hereto as Exhibit 10.3 and incorporated herein by reference (the
"Incentive Plan"). Pursuant to the terms of the Incentive Plan, starting with
the annual bonus to be paid in respect of 2005, 20% of the annual bonus payable
to each senior executive officer of the Company is required to be deferred into
a phantom stock unit account.
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1 As required by the Company's Corporate Governance Guidelines, the 2005
annual base salary and 2004 bonus for Mr. MacInnis was also approved by the
Company's independent directors, and the 2005 annual base salaries and 2004
bonuses for each of the other executive officers of the Company were
reviewed by the other independent directors.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit Number Description of Exhibits
10.1 Form of Certificate Representing RSUs Mandatorily
Awarded
10.2 Form of Certificate Representing RSUs Voluntarily
Awarded
10.3 Incentive Plan for Senior Executive Officers of
EMCOR Group, Inc.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
amended, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned hereunto duly authorized.
EMCOR GROUP, INC.
Date: March 4, 2005 By: ---------------------------
Name: Mark A. Pompa
Title: Senior Vice President,
Chief Accounting Officer and
Treasurer
EXHIBIT INDEX
Exhibit Number Description
10.1 Form of Certificate Representing RSUs Mandatorily
Awarded
10.2 Form of Certificate Representing RSUs Voluntarily
Awarded
1.03 Incentive Plan for Senior Executive Officers of
EMCOR Group, Inc.
EXHIBIT 10.1
MANDATORY STOCK UNITS
(Non-Assignable)
_____ Mandatory Stock Units
Issued Pursuant to the
EMCOR GROUP, INC. EXECUTIVE STOCK BONUS PLAN
THIS CERTIFIES that as of March 3, 2005 _______________ (the "Executive")
was granted ______ Mandatory Stock Units entitling him to receive_____ fully
paid and non-assessable shares ("Shares") of the Common Stock (par value $0.01
per share) of EMCOR Group, Inc. (the "Company"), a Delaware corporation, upon
and subject to the following terms and conditions.
Subject to the terms of the EMCOR Group, Inc. Executive Stock Bonus Plan
(the "Plan"), all or any part of the Shares represented by the Voluntary Stock
Units shall be issued to the Executive on the earlier of (i) the first business
day immediately following the day upon which the Company releases to the public
generally its results in respect of the fourth quarter of 2007, (ii) the
Executive's termination of employment with the Company for any reason, or (iii)
immediately prior to a Change of Control (as that term is defined in the Plan).
The Voluntary Stock Units represented hereby shall not be transferable by the
Executive otherwise than by will or by the laws of descent and distribution.
The Voluntary Stock Units and this Certificate are issued pursuant to and
are subject to all of the terms and conditions of the Plan, the terms and
conditions of which are hereby incorporated as though set forth at length, and
the receipt of a copy of which the Executive hereby acknowledges by his receipt
of this certificate.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Dated as of March 3, 2005
(Seal) EMCOR GROUP, INC.
ATTEST: By:
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Frank T. MacInnis, Chairman of the Board
and Chief Executive Officer
Sheldon I. Cammaker, Secretary
EXHIBIT 10.2
VOLUNTARY STOCK UNITS
(Non-Assignable)
_____ Voluntary Stock Units
Issued Pursuant to the
EMCOR GROUP, INC. EXECUTIVE STOCK BONUS PLAN
THIS CERTIFIES that as of March 3, 2005 _______________ (the "Executive")
was granted _____ Voluntary Stock Units entitling him to receive _____ fully
paid and non-assessable shares ("Shares") of the Common Stock (par value $0.01
per share) of EMCOR Group, Inc. (the "Company"), a Delaware corporation, upon
and subject to the following terms and conditions.
Subject to the terms of the EMCOR Group, Inc. Executive Stock Bonus Plan
(the "Plan"), all or any part of the Shares represented by the Voluntary Stock
Units shall be issued to the Executive on the earlier of (i) the first business
day immediately following the day upon which the Company releases to the public
generally its results in respect of the fourth quarter of 2007, (ii) the
Executive's termination of employment with the Company for any reason, or (iii)
immediately prior to a Change of Control (as that term is defined in the Plan).
The Voluntary Stock Units represented hereby shall not be transferable by the
Executive otherwise than by will or by the laws of descent and distribution.
The Voluntary Stock Units and this Certificate are issued pursuant to and
are subject to all of the terms and conditions of the Plan, the terms and
conditions of which are hereby incorporated as though set forth at length, and
the receipt of a copy of which the Executive hereby acknowledges by his receipt
of this certificate.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Dated as of March 3, 2005
(Seal) EMCOR GROUP, INC.
ATTEST: By:
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Frank T. MacInnis, Chairman of the Board
and Chief Executive Officer
Sheldon I. Cammaker, Secretary
EXHIBIT 10.3
INCENTIVE PLAN FOR SENIOR EXECUTIVE OFFICERS OF
EMCOR GROUP, INC.
SECTION I. PURPOSE.
This Incentive Plan has been established for senior executive officers of
EMCOR Group, Inc. in order to provide performance based compensation to them and
to provide a vehicle through which a portion of performance based compensation
payable to Participants may be deferred and ultimately paid in an amount based
on the value of Company Stock on a deferred payment date. Incentive compensation
payable pursuant hereto is in addition to the base salary of Participants and is
intended to recognize their contribution to the success of EMCOR Group, Inc. The
terms, conditions and provisions of the Plan shall be as follows:
SECTION 2. DEFINITIONS.
As used in the Plan, the following capitalized terms shall have the
following meanings:
"Allocation Date" has the meaning set forth in Section 6.1(b).
"Board" means the Board of Directors of the Company.
"Bonus" means the annual bonus, if any, awarded to a
Participant as provided herein.
"CEO" means the Chief Executive Officer of the Company.
"Change of Control" means when:
(i) any person or persons acting in concert (excluding Company benefit plans)
becomes the beneficial owner of securities of the Company having at least
25% of the voting power of the Company's then outstanding securities
(unless the event causing the 25% threshold to be crossed is an acquisition
of voting common securities directly from the Company, other than upon the
conversion of convertible debt securities or other securities and/or the
exercise of options or warrants); or
(ii) the stockholders of the Company shall approve any merger or other business
combination of the Company, sale or lease of the Company's assets or
combination of the foregoing transactions (a "Transaction") other than a
Transaction immediately following which the stockholders of the Company and
any trustee or fiduciary of any Company employee benefit plan immediately
prior to the Transaction own at least 65% of the voting power, directly or
indirectly, of (A) the surviving corporation in any such merger or other
business combination; (B) the purchaser or lessee of the Company's assets;
or (C) both the surviving corporation and the purchaser or lessee in the
event of any combination of Transactions;
(iii)within any 24 month period, the persons who were directors of the Company
immediately before the beginning of such period (the "Incumbent Directors")
shall cease (for any reason other than death) to constitute at least a
majority of the Board or the board of directors of a successor to the
Company. For this purpose, any director who was not a director at the
beginning of such period shall be deemed to be an Incumbent Director if
such director was elected to the Board by, or on the recommendation of or
with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors (so long as such director was not
nominated by a person who has expressed an intent to effect a Change of
Control or engage in a proxy or other control contest); or
(iv) with respect to a Participant employed by a Participating Subsidiary, as a
result of the Company's disposing of its direct or indirect equity interest
in the Participating Subsidiary, the Company no longer owns, directly or
indirectly, at least a majority of the voting power of the Participating
Subsidiary.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Compensation and Personnel Committee of the
Board.
"Company" means EMCOR Group, Inc., a Delaware corporation, or any
successor corporation.
"Company Stock" means common stock of the Company, par value $.01 per
share.
"COO" means the Chief Operating Officer of the Company.
"Deferred Amount" has the meaning set forth in Section 6.1(a).
"Designated Beneficiary" means the beneficiary or beneficiaries
designated in accordance with Section 8.5 to receive amounts payable
to a Participant under the Plan upon the Participant's death.
"Distribution Date" has the meaning set forth in Section 6.2(a).
"Fair Market Value" means, as of a specified date, the closing price
at which a share of Company Stock is traded on the stock exchange, if
any, on which such 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 ask 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 determined
by an unaffiliated investment banking firm selected by the Board.
"Financial Hardship" means severe financial hardship caused by
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, as determined by the
Committee in its sole and absolute discretion.
"Participant" means each person to participate in the Plan pursuant to
Section 3.
"Phantom Stock Unit(s)" has the meaning set forth in Section 6.1(a).
"Phantom Stock Unit Account" has the meaning set forth in Section
6.1(a).
"Plan" means this Incentive Plan.
"Plan Year" means the accounting fiscal year of the Company.
"Specified Employee" has the meaning set forth in Section
409A(a)(2)(B)(i) of the Code.
"Subsidiary" means each direct or indirect subsidiary of the Company.
SECTION 3. ELIGIBILITY AND PARTICIPATION.
The following shall be Participants in the Plan: Each officer of the
Company with the rank of Senior Vice President or higher. In addition, any other
officer of the Company may be designated a Participant by the CEO with respect
to a Plan Year within 60 days of the commencement of such Plan Year; provided
such officer is not also a participant in the "Incentive Plan for Certain
Employees of EMCOR Group, Inc; EMCOR Construction Services, Inc., EMCOR Energy
and Technologies, Inc., EMCOR Drake & Scull plc and Comstock Canada Ltd."
SECTION 4. ADMINISTRATION.
4.1 Authority of the Committee and the CEO. The Committee has and will have
all the authority that may be necessary or helpful to enable it to discharge its
responsibilities with respect to the Plan. Without limiting the generality of
the foregoing, and in addition to any authority or responsibility specifically
granted to the Committee elsewhere in the Plan, the Committee has the exclusive
right to (a) interpret the Plan, (b) construe any ambiguous provision of the
Plan, (c) supply any omission, (d) reconcile any inconsistency, (e) issue
administrative guidelines as an aid to administer the Plan, (f) make
regulations, if any, for carrying out the Plan and to make changes in such
regulations as they from time to time deem proper, and (g) decide any and all
questions arising in the administration, interpretation and application of the
Plan.
4.2 Discretionary Authority. The Committee shall have full discretionary
authority in all matters related to the discharge of its responsibilities and
the exercise of its authority under the Plan including, without limitation, its
construction of the terms of the Plan. It is the intent of the Company in
establishing the Plan that the decisions of the Committee and its action with
respect to the Plan will be final, binding and conclusive upon all persons
having or claiming to have any right or interest in or under the Plan.
SECTION 5. BONUSES.
5.1 Establishment of the Bonus. The Committee (as to each Participant whose
annual salary for the Plan Year is $400,000 or more), or the CEO or the COO (the
"Designee") if designated by the CEO (as to each Participant whose annual salary
for the Plan Year is less than $400,000), shall determine the Bonus, if any,
payable to each Participant in respect of each Plan Year, in the sole discretion
of Committee, the CEO, or the Designee, as the case may be; provided that in the
case of a Designee, the determination of his Bonus shall, subject to the terms
hereof, be made only by the Committee or the CEO, as the case may be.
Determination of Bonuses shall be made no later than March 15 of the Plan Year
immediately succeeding the Plan Year in respect of which Bonuses are being
determined. Any such Bonus shall be subject to and in accordance with any
employment agreement or any other agreement between the Company and the
Participant. A Participant shall not be entitled to a Bonus in respect of a Plan
Year, or any portion of such Bonus, unless he/she is an employee of the Company
or a Subsidiary on the date his Bonus would otherwise be determined unless the
Committee otherwise determines.
5.2 Mandatory Deferral. If a Participant's Bonus is $10,000 or more, twenty
percent of such Bonus shall be deferred into a Phantom Stock Unit Account in
accordance with the provisions of Section 6.1(b), unless the Committee in its
sole discretion determines, on or before March 15 of each Plan Year, commencing
with the 2006 Plan Year, that the percentage of each such Bonus for the
immediately preceding Plan Year to be deferred into a Phantom Stock Unit Account
shall be a lower percentage but no lower than ten percent of such Bonus;
provided further that any such determination shall apply uniformly to all
Participants. Subject to the provisions of Section 8.4, if a Bonus is less than
$10,000, the entire amount thereof shall be payable, in accordance with prior
practice, in a lump sum cash payment promptly following the determination
thereof.
5.3 Cash Payment of Balance. Subject to the provisions of Section 8.4, the
portion of the Participant's Bonus as to which the above-mentioned deferral does
not apply shall be payable in a lump sum cash payment promptly following the
determination thereof.
5.4 Failure to Remain Employed. Subject to the provisions of Section 6.2(a)
a Participant who is not an employee of the Company or any Subsidiary on the
date a Bonus, or any portion thereof, is to be paid, whether in cash or Phantom
Stock Units, shall not be entitled to payment of such unpaid portion of the
Bonus unless the Committee determines otherwise.
5.5 Non-Business Day. Whenever this Plan calls for a payment to be made, or
an action to be taken, on a certain date and such date is a Saturday, Sunday or
Company holiday, such payment shall be made, and such action shall be taken, on
the business day immediately following such date.
SECTION 6. PHANTOM STOCK UNITS.
6.1 Phantom Stock Unit Accounts and Dividend Equivalents.
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(a) Phantom Stock Unit Accounts. Each portion of a Bonus required to be
deferred pursuant to Section 5.2 ("Deferred Amount") shall be credited to a
separate account ("Phantom Stock Unit Account") in units, with each unit
representing one share of Company Stock ("Phantom Stock Units"), and the
number of Phantom Stock Units calculated in accordance with Section 6.1(b).
A separate Phantom Stock Unit Account shall be established for each Plan
Year's Deferred Amount.
(b) Calculation of Phantom Stock Units. The number of Phantom Stock Units
initially credited to each Phantom Stock Unit Account shall be an amount
equal to (i) the Deferred Amount divided by the Fair Market Value of a
share of Company Stock on March 15 of the Plan Year immediately following
the Plan Year in respect of which the Phantom Units are being credited (the
"Allocation Date") multiplied by (ii) 125%.
(c) Dividend Equivalents. On a dividend record date for Company Stock, each
Phantom Stock Unit Account shall be credited, on the dividend payment date,
with an additional number of Phantom Stock Units equal to 125% of the
following amount: (i) the product of the cash value of the dividend paid on
one share of Company Stock and the number of Phantom Stock Units in the
Phantom Stock Unit Account on the dividend record date divided by (ii) the
Fair Market Value of a share of Company Stock on the trading day
immediately preceding the dividend payment date.
(d) Vesting. All Deferred Amounts and dividend equivalents referred to in
Section 6.1(c) allocated to Phantom Stock Unit Accounts shall be fully
vested at all times.
(e) Changes to Company Stock. In the event of any merger, reorganization,
recapitalization, consolidation, sale or other distribution of all or
substantially all of the assets of the Company, any stock dividend, split,
spin-off, split-up, split-off, distribution of securities or other property
by the Company, or other change in the Company's corporate structure
affecting the shares of Company Stock, the number and character of Phantom
Stock Units then credited to Phantom Stock Unit Accounts shall be
appropriately adjusted as determined by the Committee in its sole
discretion in a manner intended to prevent dilution or enlargement of the
intended benefits to Participants under the Plan.
6.2 Distributions.
(a) Distribution Date of Deferred Payment. Subject to the provisions of
Sections 6.1(b), 6.2(c), 6.2(d) and 8.4, with respect to each Phantom Stock
Unit Account of a Participant, the Participant shall be paid in cash in a
lump sum the value of the Phantom Stock Units in his or her Phantom Stock
Unit Account on a date (the "Distribution Date") which is the earlier of
(i) the second anniversary of the Allocation Date, (ii) with respect to a
Participant who is a Specified Employee, the date that is six months after
his or her termination of employment for any reason, or, with respect to a
Participant who is not a Specified Employee, the date of his or her
termination of employment for any reason other than by reason of his death
or his disability as defined in Section 409A(a)(2)(C) of the Code or (iii)
immediately prior to a Change of Control; provided that the Committee does
not reasonably determine that the Change of Control is not an event
described in Section 409A(a)(2)(A)(v) of the Code. Such value shall be
determined by multiplying the Fair Market Value of Company Stock on the
Distribution Date by the number of Phantom Stock Units in the Phantom Stock
Unit Account. For purposes of this Section, the transfer of a Participant's
employment from the Company to a Subsidiary shall not be considered
termination of employment.
(b) Early Distribution. Notwithstanding anything contained herein to the
contrary, subject to the provisions of Sections 6.2(d) and 8.4, the
Committee may permit distribution in cash of all or a part of one or more
of a Participant's Phantom Stock Unit Accounts earlier than otherwise
provided herein if it determines, in its sole discretion, following written
request therefor by the Participant, that the Participant is experiencing a
Financial Hardship; provided that such distribution may not be in an amount
greater than that determined by the Committee as necessary to alleviate the
Financial Hardship and otherwise meets the requirements of Section
409A(a)(2)(B)(ii) of the Code. In such case, the value of the Phantom Stock
Unit Account shall be determined as provided in Section 6.2(a) except that
the date as of which Fair Market Value shall be determined shall be the
date of distribution referred to in this Section 6.2(b).
(c) Distribution for Taxes. Notwithstanding anything contained herein to the
contrary, subject to the provisions of Sections 6.2(d) and 8.4 and the last
sentence of this Section 6.2(c), the Committee shall immediately
distribute, in cash in a lump sum, any portion of a Participant's Phantom
Stock Unit Account which has been determined by the Internal Revenue
Service or a taxing authority of another jurisdiction, in a manner which
cannot be appealed or as to which the time to appeal has expired, to be
currently taxable to the Participant or to have been taxable to the
Participant in a prior taxable year. In such case the value of the Phantom
Stock Unit Account shall be determined as provided in Section 6.2(a) except
that the date as of which Fair Market Value shall be determined shall be
the date of distribution referred to in this Section 6.2(c). This Section
6.2(c) shall not apply if the Committee reasonably determines that the
application or existence of this Section is likely to cause acceleration of
taxation or tax penalties to Participants under Section 409A of the Code.
(d) Distributions in Company Stock. Provided that this Plan is approved by the
shareholders of the Company in a manner intended to satisfy the shareholder
approval requirements of the New York Stock Exchange (which approval shall
include a designation of the number of shares of Company Stock to be made
available under the Plan), the Committee may, in its sole and absolute
discretion, satisfy the payment of all or a portion of a Participant's
Phantom Stock Unit Account through the distribution of one share of Company
Stock for each Phantom Stock Unit in the Participant's Phantom Stock Unit
Account (up to the number of shares authorized), provided further that such
Company Stock has been properly registered for resale pursuant to the
Securities Act of 1933.
SECTION 7. TERMINATION OR AMENDMENT OF THE PLAN.
7.1 The Board may amend, modify, suspend or terminate the Plan at any time. The
termination or any modification, suspension, or amendment of the Plan shall
not, without the consent of a Participant, adversely affect any
Participant's rights with respect to Bonuses or Phantom Stock Units
previously awarded to him or her or credited to his or her Phantom Stock
Unit Accounts or result in a distribution of amounts credited to his or her
Phantom Stock Unit Accounts earlier than otherwise provided herein.
7.2 In addition to Section 7.1, the CEO may amend or modify the Plan at any
time to the extent necessary to comply with the requirements of Section
409A of the Code and any regulations or other formal guidance issued
thereunder.
SECTION 8. MISCELLANEOUS.
8.1 Reorganization or Discontinuance. The obligations of the Company under the
Plan shall be binding upon any successor corporation or organization
resulting from merger, consolidation or other reorganization of the
Company, or upon any successor corporation or organization succeeding to
substantially all of the assets and business of the Company. The Company
will make appropriate provision for the preservation of Participants'
rights under the Plan in any agreement or plan which it may enter into or
adopt to effect any such merger, consolidation, reorganization or transfer
of assets.
8.2 Non-Alienation of Benefits. A Participant may not assign, sell, encumber,
transfer or otherwise dispose of any rights or interests under the Plan
except by will or by the laws of descent and distribution. Any attempted
disposition in contravention of the preceding sentence shall be null and
void.
8.3 No Claim or Right to Plan Participation. Except as otherwise specifically
provided in the Plan, no employee or other person shall have any claim or
right to be selected as a Participant under the Plan. Neither the Plan nor
any action taken pursuant to the Plan shall be construed as giving any
employee any right to be retained in the employ of the Company or any
Subsidiary.
8.4 Taxes. The Company shall have the power to withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy
Federal, state and local withholding tax requirements on any distribution
of cash or Company Stock pursuant to the Plan.
8.5 Designation and Change of Beneficiary. Each Participant may indicate at any
time after being notified that he or she is a Participant the designation
of one or more persons as his or her Designated Beneficiary who shall be
entitled to receive the amount, if any, payable under the Plan upon the
death of the Participant. Such designation shall be in writing to the
Committee or an officer of the Company designated by the Committee. A
Participant may, from time to time, revoke or change his or her Designated
Beneficiary without the consent of any prior Designated Beneficiary by
filing a written designation with the Committee or such designated officer.
The last such designation received by the Committee or such officer shall
be controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Committee or
such officer prior to the Participant's death, and in no event shall it be
effective as of a date prior to such receipt. In the absence of any
designation of a Designated Beneficiary, the benefits hereunder unpaid at
the Participant's death shall be paid to his estate.
8.6 Delegation. The Committee may from time to time delegate any administrative
duties hereunder to an officer of the Company designated by it; provided
such delegation is not inconsistent with the provisions of law, rules of
the New York Stock Exchange or provisions of the Charter of the Committee.
By way of example, but not in limitation, a determination of the Bonus for
a Participant which determination is expressly provided herein to be made
by the Committee, or the timing of payment thereof, shall not be an
administrative duty.
8.7 Payments to Persons Other Than the Participant. If the Committee shall find
that any person to whom any amount is payable under the Plan is unable to
care for his or her affairs because of illness or accident, then any
payment due to such person or his or her estate (unless a prior claim
therefor has been made by a duly appointed legal representative) may, if
the Committee so directs, be paid to his or her spouse, a child, a
relative, an institution maintaining or having custody of such person, or
any other person deemed by the Committee, in its sole discretion, to be a
proper recipient on behalf of such person otherwise entitled to payment.
Any such payment shall be a complete discharge of the liability of the
Company therefor.
8.8 No Liability of Committee Members or Officers. No member of the Committee
or any director or officer of the Company shall be personally liable by
reason of any act taken hereunder or any failure to act hereunder or on his
or her behalf in his or her capacity as a member of the Committee or
director or an officer, and the Company shall indemnify and hold harmless
each member of the Committee and any officer or director of the Company to
whom any duty or power relating to the administration or interpretation of
the Plan may be delegated, against any cost or expense (including legal
fees, disbursements and other related charges) or liability (including any
sum paid in settlement of a claim with the approval of the Board) arising
out of any act or omission to act in connection with the Plan, unless
arising out of such person's own fraud or willful misconduct.
8.9 Unfunded Plan. Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in
meeting its obligations under the Plan. Nothing contained in the Plan, and
no action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Company
and any Participant, beneficiary, legal representative or any other person.
To the extent that any person acquires a right to receive payments from the
Company under the Plan, such right shall be no greater than the right of an
unsecured general creditor of the Company. All payments to be made
hereunder shall be paid from the general funds of the Company and no
special or separate fund shall be established and no segregation of assets
shall be made to assure payment of such amounts except as expressly set
forth in the Plan.
The Plan is not intended to be subject to the Employee Retirement Income
Security Act of 1974, as amended.
8.10 Rights as a Stockholder. No Participant shall have any rights as a
stockholder of the Company with respect to any Phantom Stock Units credited
to his Phantom Stock Unit Accounts.
8.11 Governing Law. This Plan shall be governed by and construed in accordance
with laws of the State of Delaware applicable to agreements made and to be
performed entirely within such state (without regard to any conflict of law
provisions that might indicate the applicability of any other laws).
8.12 Participation in Other Plans. Participation in the Plan shall not preclude
a Participant from participation in any other plans or benefits of the
Company.
8.13 Effective Date. This Plan shall be effective commencing with the 2005 Plan
Year.