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As filed with the Securities and Exchange Commission on July 23, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SERVICE EXPERTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 62-1639453
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
Six Cadillac Drive, Suite 400
Brentwood, Tennessee 37027
(Address of Principal Executive Offices)
(Zip Code)
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SERVICE EXPERTS, INC.
AMENDED 1996 INCENTIVE STOCK PLAN
AMENDED 1996 EMPLOYEE STOCK PURCHASE PLAN
1997 NONQUALIFIED STOCK OPTION PLAN
AMENDED 1997 NONQUALIFIED STOCK PURCHASE PLAN AND
AMENDED SERVICE CENTER STOCK OPTION PLAN
(Full title of the plan)
Alan R. Sielbeck Copies to:
Service Experts, Inc. J. Chase Cole, Esq.
Six Cadillac Drive, Suite 400 Waller Lansden Dortch & Davis,
Brentwood, Tennessee 37027 A Professional Limited Liability Company
(Name and address of agent for service) 2100 Nashville City Center
(615) 371-9990 511 Union Street
(Telephone number, including area code, Nashville, Tennessee 37219
of agent for service)
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share Price Registration Fee
================================================================================================================
Common Stock, $.01 par 302,353 shares $31.14 $9,415,272.42 $2,778
value (2)
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 71,087 shares $21.36 $1,518,418.32 $448
value (3)
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 184,870 shares $32.08 $5,930,629.60 $1,750
value (4)
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 5,112 shares $21.36 $109,192.32 $32
value (5)
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 259,321 shares $27.35 $7,092,429.35 $2,092
value (6)
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par 782,681 shares (8) $36.44 $28,518,938.94 $8,413
value (7)
- ----------------------------------------------------------------------------------------------------------------
Total 1,605,424 shares $32.75 $52,584,880.95 $15,513
================================================================================================================
(1) 1,300,000 and 350,000 shares of Common Stock are authorized for issuance
under the Amended 1996 Incentive Stock Plan and Amended 1996 Employee
Stock Purchase Plan, respectively, of which 700,000 and 100,000 shares,
respectively, were registered on the Company's Registration Statement on
Form S-8 (Reg. No. 333-11791).
(2) Represents 302,353 shares reserved for issuance at the weighted average
exercise price of $31.14 per share pursuant to options previously granted
under the Amended 1996 Incentive Stock Plan.
(3) Represents 71,087 shares reserved for issuance at the weighted average
exercise price of $21.36 per share pursuant to options previously
granted under the Amended 1996 Employee Stock Purchase Plan.
(4) Represents 184,870 shares reserved for issuance at the weighted average
exercise price of $32.08 per share pursuant to options previously granted
under the Amended 1997 Nonqualified Stock Option Plan.
(5) Represents 5,112 shares reserved for issuance at the weighted average
exercise price of $21.36 per share pursuant to options previously granted
under the Amended 1997 Nonqualified Stock Purchase Plan
(6) Represents 259,321 shares reserved for issuance at the weighted average
exercise price of $27.35 per share pursuant to options previously granted
under the Amended Service Center Stock Option Plan.
(7) Represents 297,647, 178,913, 87,330, 144,888 and 73,903 shares reserved
for issuance pursuant to future grants of stock options under the Amended
1996 Incentive Stock Plan, Amended 1996 Employee Stock Purchase Plan, the
1997 Nonqualified Stock Option Plan, the Amended 1997 Nonqualified Stock
Purchase Plan, and the Amended Service Center Stock Option Plan,
respectively.
(8) Estimated solely for purposes of determining the amount of the
registration fee, in accordance with Rules 457(c) and (h)(1) under the
Securities Act of 1933, as amended, and based upon the average of the
high and low sales price on July 20, 1998.
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EXPLANATORY NOTE
The Reoffer Prospectus which is filed as a part of this Registration
Statement has been prepared in accordance with the requirements of Part I of
Form S-3 and may be used for reoffers or resales of the common stock, $.01 par
value per share (the "Common Stock"), of Service Experts, Inc., a Delaware
corporation (the "Company"), acquired by "affiliates" (as such term is defined
in Rule 405 promulgated under the Securities Act of 1933, as amended (the
"Securities Act")) and by holders of shares of Common Stock issued under certain
employee benefit plans of the Company which shares constitute "restricted
securities" as defined in Rule 144(a)(3) under the Securities Act, pursuant to
the exercise of options under the Company's Amended 1996 Incentive Stock Plan,
Amended 1996 Employee Stock Purchase Plan, 1997 Nonqualified Stock Option Plan,
Amended 1997 Nonqualified Stock Purchase Plan and Amended Service Center Stock
Option Plan.
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Reoffer Prospectus
1,605,424 SHARES
SERVICE EXPERTS, INC.
COMMON STOCK
This Reoffer Prospectus (the "Prospectus") is being used in connection with
the reoffer or resale of shares of Common Stock, $.01 par value per share (the
"Common Stock"), of Service Experts, Inc., a Delaware corporation (the
"Company"), by certain "affiliates" of the Company (as such term is defined in
Rule 405 promulgated under the Securities Act of 1933, as amended (the
"Securities Act")), and employees of the Company (the "Selling Stockholders")
who hold shares of Common Stock issued under certain employee benefit plans of
the Company which shares constitute "restricted securities" as defined in Rule
144(a)(3) promulgated under the Securities Act, which have been or may be
acquired by them and are available to be resold by them pursuant to the
Company's Amended 1996 Incentive Stock Plan (the "Incentive Plan"), Amended 1996
Employee Stock Purchase Plan (the "Purchase Plan"), 1997 Nonqualified Stock
Option Plan (the "Nonqualified Option Plan"), Amended 1997 Nonqualified Stock
Purchase Plan (the "Nonqualified Purchase Plan") and the Amended Service Center
Option Plan (the "Service Center Plan") (collectively, the "Plans").
The shares may be offered by the Selling Stockholders from time to time in
transactions on the New York Stock Exchange, in negotiated transactions, through
the writing of options on the shares, or a combination of such methods of sale,
at prices related to prevailing market prices, or at negotiated prices. The
Selling Stockholders may effect such transactions by selling the shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the shares for whom such broker-dealers may act as
agent or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
None of the proceeds from the sale of the shares by any of the Selling
Stockholders will be received by the Company. The Company has agreed to bear all
expenses (other than underwriting discounts and selling commissions, and fees
and expenses of counsel and other advisors to the Selling Stockholders) in
connection with the registration of the shares being offered by such Selling
Stockholders.
---------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------------------
July 23, 1998
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TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION..........................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................4
SERVICE EXPERTS, INC...........................................................5
USE OF PROCEEDS................................................................5
SELLING STOCKHOLDERS...........................................................6
PLAN OF DISTRIBUTION...........................................................6
LEGAL MATTERS..................................................................7
EXPERTS........................................................................7
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). The Company has furnished and intends to furnish
reports to its stockholders, which will include financial statements audited by
its independent certified public accounts, and such other reports as it may
determine to furnish or as required by law, including Sections 13(a) and 15(d)
of the Exchange Act. Proxy statements, reports and other information concerning
the Company can be inspected and copied at the Commission's office at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at its regional offices
located in the Northwestern Atrium Center, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661; and 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains an Internet Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically, and the address of such site is
http://www.sec.gov. The Company's Common Stock is listed on the New York Stock
Exchange. Proxy statements, reports and other information concerning the Company
can be inspected and copied at the offices of the New York Stock Exchange
located at 20 Broad Street, New York, New York 10005.
The Company has filed a registration statement (the "Registration
Statement") on Form S-8 with respect to the Common Stock offered hereby with the
Commission under the Securities Act. This Prospectus, which constitutes a part
of the Registration Statement, does not contain all of the information set forth
in the Registration Statement, certain items of which are contained in schedules
and exhibits to the Registration Statement as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to the
contents of any agreement, instrument or other document referred to are not
necessarily complete. With respect to each such agreement, instrument or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERINGS HEREIN CONTAINED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF ANY OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT ANY INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated herein by reference as of the dates thereof:
(1) Annual Report on Form 10-K for the year ended December 31, 1997;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(3) Current Report on Form 8-K dated January 8, 1998; and
(4) The description of the Common Stock contained in the Registration
Statement on Form 8-A, filed pursuant to Section 12 of the Exchange
Act on May 23, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in this Prospectus or
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus. Subject to the foregoing, all information appearing herein
is qualified in its entirety by the information appearing in the documents
incorporated herein by reference.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE
INCORPORATED BY REFERENCE HEREIN (OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS
SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS).
REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO ANTHONY M. SCHOFIELD, SERVICE
EXPERTS, INC., SIX CADILLAC DRIVE, SUITE 400, BRENTWOOD, TENNESSEE 37027
(TELEPHONE NUMBER 615-371-9990).
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SERVICE EXPERTS, INC.
The Company is one of the leading providers of residential heating,
ventilating and air conditioning ("HVAC") services and replacement equipment in
the United States, and management believes the Company will continue to be a
leading consolidator of the fragmented HVAC service and replacement industry. As
of the date of this Prospectus, the Company operates 85 HVAC service and
replacement businesses ("Service Centers") in 32 states and owns Contractor
Success Group, Inc., a company that provides HVAC businesses proprietary
products, as well as marketing, management, educational and advisory services.
The Service Centers install, service and maintain central air conditioners,
furnaces and heat pumps, primarily in existing homes. Management estimates that
in 1997 over 80% of the Company's pro forma net revenue was derived from
replacing, maintaining and servicing HVAC equipment at existing residences and
to the sale of ancillary products such indoor air quality devices and services.
The Company focuses on the service and replacement segment of the HVAC industry
rather than the new construction segment because management believes that the
service and replacement segment exposes the Company to less credit risk and
offers higher margins.
The executive offices of the Company are located at Six Cadillac Drive,
Suite 400, Brentwood, Tennessee 37027, and its telephone number is 615-371-9990.
The shares of Common Stock offered hereby have been or will be purchased by
the Selling Stockholders upon exercise of options granted to them and will be
sold for the account of the Selling Stockholders.
USE OF PROCEEDS
All of the shares of Common Stock are being offered by the Selling
Stockholders. The Company will not receive any proceeds from the sale of shares
of Common Stock by any of the Selling Stockholders as contemplated herein.
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SELLING STOCKHOLDERS
The following table shows (i) the name of each of the Selling Stockholders
who may be considered "affiliates" of the Company within the meaning of the
Securities Act (the "Affiliates"); (ii) the number of shares of Common Stock
held by each Affiliate as of July 15, 1998; (iii) the number of such shares of
Common Stock covered by this Prospectus; and (iv) the amount and the percentage
of the Common Stock to be owned by each Selling Stockholder after completion of
this offering, assuming the sale of all shares of Common Stock covered by this
Prospectus:
SHARES OWNED PERCENTAGE
POTENTIAL AS OF SHARES SHARES OWNED OF
SELLING STOCKHOLDER JULY 15, 1998 (1) OFFERED AFTER OFFERING CLASS (2)
- ------------------- ----------------- ------- -------------- ---------
Alan R. Sielbeck 821,252 40,000 781,252 5.0%
Ronald L. Smith 64,324 40,000 24,324 *
Alfred W. Taylor III 40,000 40,000 0 *
Anthony M. Schofield 43,000 0 43,000 *
Norman T. Rolf, Jr. 138,341 17,778 120,563 *
- ---------------
* Indicates less than 1% ownership.
(1) Includes shares of Common Stock underlying options granted to such
Selling Stockholders under the Amended 1996 Incentive Stock Plan and
the 1997 Nonqualified Stock Option Plan, whether or not exercisable as
of or within 60 days of July 15, 1998.
(2) Computation based upon 16,549,473 shares outstanding on July 15, 1998.
The preceding table reflects all Affiliates who are eligible to reoffer and
resell Common Stock, whether or not they have a present intent to do so. At the
date of this Prospectus, the Company does not know the names of any persons who
intend to resell shares of Common Stock of the Company acquired pursuant to the
Plans. There can be no assurance that any of the Selling Stockholders will sell
any or all of the Common Stock offered by them hereunder. The Selling
Stockholders will be employees or executive officers of the Company or its
subsidiaries who have been or may be granted options under the Plans. The
Company will supplement this Prospectus with the names of the Selling
Stockholders not shown in the table above and the amount of shares of Common
Stock to be reoffered by them as that information becomes known, unless such
Selling Stockholders are not Affiliates and are selling no more than the lesser
of 1,000 shares or one percent of the shares issuable under the applicable Plan.
PLAN OF DISTRIBUTION
The shares of Common Stock being offered by the Selling
Stockholders are offered for their own accounts. The Company will not receive
any of the proceeds from any eventual sales of such shares of Common Stock. The
shares may be offered by the Selling Stockholders from time to time in
transactions on the New York Stock Exchange, in negotiated transactions, through
the writing of options on the shares, or a combination of such methods of sale,
at prices related to prevailing market prices, or at negotiated prices.
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The Selling Stockholders may effect such transactions by selling the shares to
or through broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the shares for which such broker-dealers may act as
agent or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares of Common
Stock offered hereby have been passed upon by Waller Lansden Dortch & Davis, A
Professional Limited Liability Company, Nashville, Tennessee, counsel to the
Company.
EXPERTS
The consolidated financial statements of Service Experts, Inc. and the
combined financial statements of Parrot Mechanical, Inc. et al. incorporated by
reference in this Prospectus and Registration Statement have been audited by
Ernst & Young LLP, independent auditors, to the extent indicated in their
reports thereon incorporated by reference. Such financial statements have been
incorporated herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
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Prospectus
1,605,424 SHARES
SERVICE EXPERTS, INC.
COMMON STOCK
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents incorporated by reference into Item 3 of Part II of this
Registration Statement (not including exhibits to the information that is
incorporated by reference, unless such exhibits are specifically incorporated by
reference into the information that this Registration Statement incorporates)
are incorporated by reference into the Section 10(a) prospectus, and are
available, without charge, to the participants upon written or oral request to
Anthony M. Schofield, Service Experts, Inc., Six Cadillac Drive, Suite 400,
Brentwood, Tennessee 37027 (telephone number 615-371-9990).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
by the Registrant are incorporated herein by reference as of the dates thereof:
(1) Annual Report on Form 10-K for the year ended December 31, 1997;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
1998;
(3) Current Report on Form 8-K dated January 8, 1998; and
(4) The description of the Common Stock contained in the Registration
Statement on Form 8-A, filed pursuant to Section 12 of the Exchange Act on
May 23, 1997.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
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 into this Registration Statement and to be a part hereof from the date
of filing such documents. Any statements contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which is also incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
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ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
(a) The Delaware General Corporation Law ("DGCL") provides
that a corporation may 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 by reason of such person's status as a current or former
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 (including attorneys' fees), judgments, fines and settlements
actually and reasonably incurred by such person provided such person acted (i)
in good faith, (ii) in a manner reasonably believed to be in or not opposed to
the best interests of the corporation and (iii) with respect to a criminal
action, had no reasonable cause to believe such person's conduct was unlawful.
The termination of an action, suit or proceeding by a judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not create a presumption that a person did not meet the standard of conduct set
forth above. In actions brought by or in the right of the corporation, however,
the DGCL provides that no indemnification may be made if the person was adjudged
to be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. To the extent
that a present or former director or officer of the corporation is successful,
on the merits or otherwise, in the defense of any proceeding instigated because
of his or her status as a director or officer, the DGCL mandates that the
corporation indemnify such person against expenses (including attorneys' fees)
incurred by such person in connection with such proceeding. The corporation may
advance litigation expenses, including attorneys' fees, to an officer or
director who is a party to a proceeding upon such persons' undertaking to repay
such amount if it shall ultimately be determined that such person is not
entitled to indemnification. The indemnification and advancement of expenses
under the DGCL are not deemed exclusive of any other rights to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(b) Article VII of the Registrant's Restated Certificate of
Incorporation provides as follows:
(i) The Corporation shall indemnify, and upon request
shall advance expenses (including attorneys' fees) to, in the
manner and to the fullest extent permitted by law, any officer
or director (or the estate of any such person) who was or is a
party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding,
whether civil,
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criminal, administrative, investigative or otherwise, by
reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, partner,
trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or
employee benefit plan (an "indemnitee"). The Corporation
may, to the fullest extent permitted by law, purchase and
maintain insurance on behalf of any person who 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, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan against any
liability which may be asserted against such person. To the
fullest extent permitted by law, the indemnification and
advances provided for herein shall include expenses
(including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement. The indemnification provided
herein shall not be deemed to limit the right of the
Corporation to indemnify any other person for any such
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement to the fullest extent permitted
by law, both as to action in his official capacity and as to
action in another capacity while holding such office.
(ii) Notwithstanding the foregoing, the Corporation
shall not indemnify any such indemnitee who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
Corporation to secure a judgment in its favor against such
indemnitee with respect to any claim, issue or matter as to
which the indemnitee shall have been adjudged to be liable to
the Corporation, unless and only to the extent that, the Court
of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such indemnitee is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(iii) The rights to indemnification and advancement
of expenses set forth in this Article VII are intended to be
greater than those which are otherwise provided for in the
General Corporation Law of the State of Delaware, are
contractual between the Corporation and the person being
indemnified, his heirs, executors and administrators, and,
with respect to this Article VII are mandatory,
notwithstanding a person's failure to meet the standard of
conduct required for permissive indemnification under the
General Corporation Law of the State of Delaware, as amended
from time to time. The rights to indemnification and
advancement of expenses set forth in this Article VII are
nonexclusive of other similar rights which may be granted by
law, this Certificate, the Bylaws, a resolution of the Board
of Directors or stockholders or an agreement with the
Corporation, which means of indemnification and advancement of
expenses are hereby specifically authorized.
(iv) Any repeal or modification of the provisions of
this Article VII, either directly or by the adoption of an
inconsistent provision of this
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Certificate, shall be prospective only and shall not
adversely affect any right or protection set forth herein
existing in favor of a particular individual at the time of
such repeal or modification. In addition, if an amendment to
the General Corporation Law of the State of Delaware limits
or restricts in any way the indemnification rights permitted
by law as of the date hereof, such amendment shall apply
only to the extent mandated by law and only to activities of
persons subject to indemnification under this Article VII
which occur subsequent to the effective date of such
amendment.
(c) The Company has obtained insurance for its directors and
executive officers in amounts of $5,000,000 per claim and $5,000,000 for
annual aggregate claims.
(d) The Amended 1996 Employee Stock Purchase Plan and Amended
1997 Nonqualified Stock Purchase Plan each provide that, with respect to the
administration of the plan, the Company shall indemnify each present and future
member of the Compensation Committee and the Board of Directors against, and
each member of the Compensation Committee and the Board of Directors shall be
entitled without further act on his or her part to indemnity from the Company,
for all expenses (including the amount of judgments and the amount of approved
settlements made with a view to the curtailment of costs of litigation, other
than amounts paid to the Company itself) reasonably incurred by him or her in
connection with or arising out of any action, suit or proceeding in which he or
she may be involved by reason of his or her being or having been a member of the
Compensation Committee and the Board of Directors, whether or not he or she
continues to be such a member at the time of incurring such expenses; provided,
however, that such indemnity shall not include any expenses incurred by any such
member (i) in respect of matters as to which he or she shall be finally adjudged
in any such action, suit or proceeding to have been guilty of gross negligence
or willful misconduct in the performance of his or her duty as such a member of
the Compensation Committee and the Board of Directors or (ii) in respect of any
matter in which any settlement is effected, to an amount in excess of the amount
approved by the Company on the advice of its legal counsel; and provided,
further, that no right of indemnification under the provisions described above
shall be available to or enforceable by any such member unless, within 60 days
after institution of any such action, suit or proceeding, he or she shall have
offered the Company, in writing, the opportunity to handle and defend the same
at its own expense. The right of indemnification shall inure to the benefit of
the heirs, executors, or administrators of each such member of the Compensation
Committee and the Board of Directors and shall be in addition to all other
rights to which such member of the Compensation Committee or Board of Directors
may be entitled as a matter of law, contract or otherwise.
ITEM 7. Exemption from Registration Claimed.
Shares of Common Stock previously issued under the Company's
Amended 1996 Incentive Stock Plan, Amended 1996 Employee Stock Purchase Plan,
1997 Nonqualified Stock Option Plan, Amended 1997 Nonqualified Stock Purchase
Plan and Amended Service Center Stock Option Plan, including the granting of
options to purchase shares of Common Stock, were so issued or granted in
reliance upon Section 4(2) of the Securities Act.
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ITEM 8. Exhibits.
4.1 - Restated Certificate of Incorporation of the Registrant (a)
4.2 - Bylaws of the Registrant (a)
4.3 - Form of Common Stock Certificate (b)
5 - Opinion of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company
23.1 - Consent of Ernst & Young LLP
23.2 - Consent of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company (contained in their opinion filed
as Exhibit 5 to this Registration Statement)
24 - Power of Attorney (included on the signature page)
99.1 - Registrant's 1996 Incentive Stock Plan (a)
99.2 - Amendment No. 1 to 1996 Incentive Stock Plan
99.3 - Amendment No. 2 to 1996 Incentive Stock Plan
99.4 - Registrant's 1996 Employee Stock Purchase Plan (a)
99.5 - Amendment No. 1 to 1996 Employee Stock Purchase Plan
99.6 - Amendment No. 2 to 1996 Employee Stock Purchase Plan
99.7 - Registrant's 1997 Nonqualified Stock Option Plan (c)
99.8 - Registrant's 1997 Nonqualified Stock Purchase Plan (c)
99.9 - Amendment No. 1 to 1997 Nonqualified Stock Purchase Plan
99.10 - Service Center Stock Option Plan
99.11 - Amendment No. 1 to Service Center Stock Option Plan
- --------------------
(a) Incorporated by reference to the Registrant's Registration Statement
on Form S-1, Registration No. 333-07037.
(b) Incorporated by reference to the Registrant's Registration Statement
on Form 8-A, File No. 000-21173.
(c) Incorporated by reference to the Registrant's Registration Statement
on Form S-4, Registration No. 333-12319.
5
15
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) 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 the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 of such
information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purposes of determining any liability under
the Securities Act of 1933, 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.
(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.
(b) 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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant
6
16
to Section 15(d) of the Securities Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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.
7
17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashville, State of Tennessee, on July 22, 1998.
SERVICE EXPERTS, INC.
By: /s/ Alan R. Sielbeck
--------------------------------------
Alan R. Sielbeck
Chairman, Chief Executive Officer and
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Alan R. Sielbeck and Anthony M. Schofield
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully 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.
Name Title Date
---- ----- ----
/s/ Alan R. Sielbeck Chairman of the Board, Chief July 22, 1998
- ------------------------------------ Executive Officer and President
Alan R. Sielbeck (principal executive officer)
/s/ Anthony M. Schofield Chief Financial Officer (principal July 22, 1998
- ------------------------------------ financial and accounting officer)
Anthony M. Schofield
18
/s/ Raymond J. DeRiggi
- ------------------------------------ Director July 22, 1998
Raymond J. DeRiggi
/s/ Allen L. Hovious
- ------------------------------------ Director July 22, 1998
Allen L. Hovious
/s/ Norman T. Rolf, Jr.
- ------------------------------------ Director July 22, 1998
Norman T. Rolf, Jr.
/s/ William G. Roth
- ------------------------------------ Director July 22, 1998
William G. Roth
- ------------------------------------ Director
Timothy G. Wallace
19
EXHIBIT INDEX
4.1 - Restated Certificate of Incorporation of the Registrant (a)
4.2 - Bylaws of the Registrant (a)
4.3 - Form of Common Stock Certificate (b)
5 - Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
23.1 - Consent of Ernst & Young LLP
23.2 - Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company (contained in their opinion filed as
Exhibit 5 to this Registration Statement)
24 - Power of Attorney (included on the signature page)
99.1 - Registrant's 1996 Incentive Stock Plan (a)
99.2 - Amendment No. 1 to 1996 Incentive Stock Plan
99.3 - Amendment No. 2 to 1996 Incentive Stock Plan
99.4 - Registrant's 1996 Employee Stock Purchase Plan (a)
99.5 - Amendment No. 1 to 1996 Employee Stock Purchase Plan
99.6 - Amendment No. 2 to 1996 Employee Stock Purchase Plan
99.7 - Registrant's 1997 Nonqualified Stock Option Plan (c)
99.8 - Registrant's 1997 Nonqualified Stock Purchase Plan (c)
99.9 - Amendment No. 1 to 1997 Nonqualified Stock Purchase Plan
99.10 - Registrant's Service Center Stock Option Plan
99.11 - Amendment No. 1 to Service Center Stock Option Plan
- --------------------
(a) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, Registration No. 333-07037.
(b) Incorporated by reference to the Registrant's Registration Statement on
Form 8-A, File No. 000-21173.
(c) Incorporated by reference to the Registrant's Registration Statement on
Form S-4, Registration No. 333-12319.