AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 23, 2000
REGISTRATION NO. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------
COMFORT SYSTEMS USA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0526487
(STATE OF JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
777 POST OAK BOULEVARD, SUITE 500
HOUSTON, TEXAS 77056
(713) 830-9600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANTS
PRINCIPAL EXECUTIVE OFFICES)
------------------
2000 INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
------------------
WILLIAM F. MURDY
CHIEF EXECUTIVE OFFICER
COMFORT SYSTEMS USA, INC.
777 POST OAK BOULEVARD, SUITE 500
HOUSTON, TEXAS 77056
(713) 830-9600
FAX: (713) 830-9696
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------
COPY TO:
WILLIAM GEORGE, ESQ.
GENERAL COUNSEL
COMFORT SYSTEMS USA, INC.
777 POST OAK BOULEVARD, SUITE 500
HOUSTON, TEXAS 77056
(713) 830-9600
FAX: (713) 830-9696
------------------
PROPOSED
AMOUNT MAXIMUM PROPOSED AMOUNT OF
TITLE OF TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE FEE
- -------------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.01 per share)(1) 3,500,000 $4.13 $14,455,000 $3,816.12
- -------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a), this Registration Statement also registers such
indeterminate number of additional shares of Common Stock issuable in
connection with stock splits, share dividends or similar transactions.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee based on the average of the high and low sales prices for
the Common Stock as reported by the New York Stock Exchange on August 18,
2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
The information specified in Part I of Form S-8 is not filed as a part of
this registration statement. Pursuant to Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act"), the documents containing the
information specified in Part I of Form S-8 will be sent or given to employees
who participate in the 2000 Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Comfort Systems USA, Inc., a Delaware company (the "Company"), hereby
incorporates by reference into this registration statement (the "Registration
Statement") the following documents:
o the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed on March 16, 2000;
o the Company's Form 10-Q for the quarter ended March 31, 2000, filed on
May 12, 2000;
o the Company's Form 10-Q for the quarter ended June 30, 2000, filed on
August 14, 2000; and
o the description of the Company's common stock, par value $.01 per
share, contained in the Company's Form 8-A, filed on May 19, 1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, subsequent to the filing date of this Registration Statement and prior
to the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
The Company will provide, without charge, to each participant of the
Company's 2000 Incentive Plan, on written or oral request of such person, a copy
(without exhibits, unless such exhibits are specifically incorporated by
reference) of any or all of the documents incorporated by reference pursuant to
this Item 3. All such requests should be directed to Comfort Systems USA,
2
Inc., 777 Post Oak Blvd, Suite 500, Houston, Texas 77056, Attention: General
Counsel, phone number (713) 830-9600.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits
a corporation to indemnify any person who was or is a party, or is threatened to
be made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the case
of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether an employee or agent (who is not
then a director or officer of the corporation) seeking indemnification has met
the required standard of conduct may be made by any person or persons having
authority to act on the matter. The determination as to whether a director or
officer seeking indemnification has met the required standard will be made (1)
by a majority vote of a quorum of disinterested members of the board of
directors, (or a committee thereof) (2) by independent legal
3
counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
The Company's Certificate of Incorporation requires the Company to
indemnify its directors and officers to the fullest extent permitted by Section
145 of the DGCL. In addition, the Company maintains liability insurance for its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION
Not Applicable.
ITEM 8. EXHIBITS
4.1* Comfort Systems USA, Inc. 2000 Incentive Plan.
5.1* Opinion of William George, General Counsel, Comfort Systems USA, Inc.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of William George (included in Exhibit 5.1).
24.1* Power of Attorney (included on the signature page hereto).
- ---------------
* Filed herewith
ITEM 9. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
4
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
5
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements of filing on Form S-8 and has duly authorized
this Registration Statement to be signed on its behalf by the undersigned, in
the City of Houston, State of Texas on August 18, 2000.
COMFORT SYSTEMS USA, INC.
By:/s/ WILLIAM F. MURDY,
William F. Murdy,
CHIEF EXECUTIVE OFFICER
We, the undersigned directors and officers of Comfort Systems USA, Inc.,
constitute and appoint William F. Murdy or William George, III , or either of
them, our true and lawful attorneys and agents, to do any and all acts and
things in our name and on our behalf in our capacities as directors and
officers, and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of this
Registration Statement, including specifically without limitation, power and
authority to sign for any of us, in our names in the capacities indicated below,
any and all amendments hereto; and we do each hereby ratify and confirm all that
the said attorneys and agents, or either of them, shall do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ WILLIAM F. MURDY Chairman of the Board and August 18, 2000
William F. Murdy Chief Executive Officer
/s/ J. GORDON BEITTENMILLER Senior Vice President, August 18, 2000
J. Gordon Beittenmiller Chief Financial Officer
and Director
(principal accounting and
financial officer)
6
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GARY E. HESS Executive Vice President, August 18, 2000
Gary E. Hess Chief Operating Officer
and Director
/s/ ALFRED J. GIARDENELLI, JR. Director August 18, 2000
Alfred J. Giardenelli, Jr.
/s/ STEVEN S. HARTER Director August 18, 2000
Steven S. Harter
/s/ JOHN MERCADANTE, JR. Director August 18, 2000
John Mercadante, Jr.
/s/ ROBERT J. POWERS Director August 18, 2000
Robert J. Powers
/s/ DIANE D. SANDERS Director August 18, 2000
Diane D. Sanders
/s/ MARK P. SHAMBAUGH Director August 18, 2000
Mark P. Shambaugh
7
EXHIBIT INDEX
4.1* Comfort Systems USA, Inc. 2000 Incentive Plan.
5.1* Opinion of William George, General Counsel, Comfort Systems USA, Inc.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of William George (included in Exhibit 5.1).
24.1* Power of Attorney (included on the signature page hereto).
- ---------------
* Filed herewith
8