<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 26, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
AMERICAN RESIDENTIAL SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE POST OAK TOWER, SUITE 725 76-0484996
(State or Other Jurisdiction 5051 WESTHEIMER ROAD (I.R.S. Employer
of Incorporation or HOUSTON, TEXAS Identification No.)
Organization) (Address of Principal
Executive Offices)
77056-5604
(Zip Code)
- --------------------------------------------------------------------------------
1997 EMPLOYEE INCENTIVE PLAN OF AMERICAN RESIDENTIAL SERVICES, INC.
(Full title of the plan)
- --------------------------------------------------------------------------------
JOHN D. HELD, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
AMERICAN RESIDENTIAL SERVICES, INC.
POST OAK TOWER, SUITE 725
5051 WESTHEIMER ROAD
HOUSTON, TEXAS 77056-5604
(Name and Address of Agent for Service)
Telephone Number, Including Area Code,
of Agent for Service:
(713) 599-0100
copy to:
JAMES L. LEADER, ESQ.
BAKER & BOTTS, L.L.P.
3000 ONE SHELL PLAZA
HOUSTON, TEXAS 77002-4995
(713) 229-1234
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Proposed
Title of Amount Proposed Maximum Maximum Amount of
Securities to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value 1,532,132 $ 9.1875 $ 14,076,463 $ 4,153
$.001 per share)(2)
===============================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee and based upon the average of the high
and low sales price of the shares of Common Stock of American Residential
Services, Inc. quoted on the New York Stock Exchange on January 22, 1998.
(2) Includes the associated preferred stock purchase rights.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be
sent or given to participants as specified by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
-1-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement incorporates herein by reference the following
documents, which have been filed with the Commission by American Residential
Services, Inc., a Delaware corporation (the "Company") (File No. 1-11849):
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997;
3. The Company's Current Reports on Form 8-K dated March 4, 1997 and
December 8, 1997;
4. The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form 8-A filed June 19, 1996;
5. The description of the Rights to Purchase Series A Junior
Participating Preferred Stock of the Company contained in the Company's
Registration Statement on Form 8-A filed June 27, 1996.
Each document filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the date of this Registration Statement and 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 in this Registration Statement and to be a part
hereof from the date of filing such documents.
Any statement incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which 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 Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law
Section 145(a) of the General Corporation Law of the State of Delaware (the
"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
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completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) 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 (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 145(b) of the DGCL states 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 or suit by or in the right of the corporation to
procure a judgment in its favor 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 (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person 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 person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 145(d) of the DGCL states that any indemnification under subsections
(a) and (b) of Section 145 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in Section 145.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
Section 145(f) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
II-2
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Section 145(g) of the DGCL provides that a corporation shall have the power to
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, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Certificate of Incorporation
The Restated Certificate of Incorporation of the Company provides that a
director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Company, in addition to the limitation on
personal liability described above, shall be limited to the fullest extent
permitted by the amended DGCL. Further, any repeal or modification of such
provision of the Restated Certificate of Incorporation by the stockholders of
the Company shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Company existing at
the time of such repeal or modification.
Bylaws
The Bylaws of the Company provide that the Company will indemnify and hold
harmless any director or officer of the Company to the fullest extent permitted
by applicable law, as in effect as of the date of the adoption of the Bylaws or
to such greater extent as applicable law may thereafter permit, from and against
all losses, liabilities, claims, damages, judgments, penalties, fines, amounts
paid in settlement and expenses (including attorneys' fees) whatsoever arising
out of any event or occurrence related to the fact that such person is or was a
director or officer of the Company and further provide that the Company may, but
is not required to, indemnify and hold harmless any employee or agent of the
Company or a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise who
is or was serving in such capacity at the written request of the Company;
provided, however, that the Company is only required to indemnify persons
serving as directors, officers, employees or agents of the Company for the
expenses incurred in a proceeding if such person is a party to and is
successful, on the merits or otherwise, in such proceeding, or if unsuccessful
in the proceeding, but successful as to a matter in such proceeding the expenses
attributable to such matter and provided further that the Company may, but is
not required to, indemnify such persons who are serving as a director, officer,
employee or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise at the written request of the Company
for the expenses incurred in a proceeding if such person is a party to and is
successful, on the merits or otherwise, in such proceeding. The Bylaws further
provide that, in the event of any threatened, or pending action, suit or
proceeding in which any of the persons referred to above is a party or is
involved and that may give rise to a right of indemnification under the Bylaws,
following written request by such person, the Company will promptly pay to such
person amounts to cover expenses reasonably incurred by such person in such
proceeding in advance of its final disposition upon the receipt by the Company
of (i) a written undertaking executed by or on behalf of such person providing
that such person will repay the advance if it is ultimately determined that such
person is not entitled to be indemnified by the Company as provided in the
Bylaws and (ii) satisfactory evidence as to the amount of such expenses.
II-3
<PAGE>
Indemnification Agreements
The Company has entered into Indemnification Agreements with each of its
directors and executive officers. The Indemnification Agreements generally are
to the same effect as the Bylaw provisions described above.
Insurance
The Company maintains liability insurance for the benefit of its directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following documents are filed as a part of this registration statement or
incorporated by reference herein:
Exhibit
No. Description
------- -----------
4.1* -- Restated Certificate of Incorporation of the Company (Form S-1,
Reg. No. 333-06195, Ex. 3.1).
4.2* -- Bylaws of the Company (Form S-1, Reg.No. 333-06195, Ex. 3.2).
4.3* -- Form of Certificate representing Common Stock (Form S-1, Reg.No.
333-06195, Ex. 4.1).
4.4* -- Rights Agreement between the Company and ChaseMellon Shareholder
Services, L.L.C., including form of Rights Certificate as Exhibit
B thereto (Form S-8, Reg. No. 333-13299, Ex. 4.4).
4.5 -- 1997 Employee Incentive Plan of American Residential Services,
Inc.
5 -- Opinion of John D. Held.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of John D. Held (included in Exhibit 5).
24 -- Powers of Attorney (included on the signature pages hereof).
- ---------------
* Incorporated herein by reference as indicated.
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:
II-4
<PAGE>
(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) of the Securities Act 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 to such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do 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 Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 Houston, State of Texas, on the 26th day of January,
1998.
AMERICAN RESIDENTIAL SERVICES, INC.
By: /s/ Thomas N. Amonett
--------------------------------------
Thomas N. Amonett
President and Chief Executive Officer
Each person whose signature appears below hereby appoints Thomas N. Amonett,
John D. Held and Harry O. Nicodemus, IV, and all of them, any of whom may act
without the joinder of the others, as his true and lawful attorneys-in-fact and
agents, 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
(including post-effective amendments) to this Registration Statement and any
registration statement of the same offering filed pursuant to Rule 462 under the
Securities Act of 1933, and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing appropriate or necessary to be done, as fully and for all
intents and purposes as he 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 below by the following persons in the capacities
indicated on the 26th day of January, 1998.
Signature Title
--------- -----
/s/ Thomas N. Amonett President, Chief Executive Officer and Director
- ---------------------------- (Principal Executive Officer)
Thomas N. Amonett
/s/ Harry O. Nicodemus, IV Senior Vice President, Chief Financial Officer
- ---------------------------- and Chief Accounting Officer
Harry O. Nicodemus, IV
/s/ Howard S. Hoover, Jr. Chairman of the Board
- ----------------------------
Howard S. Hoover, Jr.
/s/ Gorden H. Timmons Chief Operating Officer and Director
- ----------------------------
Gorden H. Timmons
<PAGE>
/s/ Robert J. Cruikshank Director
- ----------------------------
Robert J. Cruikshank
/s/ Randall B. Hale Director
- ----------------------------
Randall B. Hale
/s/ Nolan Lehmann Director
- ----------------------------
Nolan Lehmann
/s/ William P. McCaughey Director
- ----------------------------
William P. McCaughey
/s/ Frank N. Menditch Senior Vice President and Director
- ----------------------------
Frank N. Menditch
/s/ Elliot Sokolow Senior Vice President and Director
- ----------------------------
Elliot Sokolow
/s/ Don D. Sykora Director
- ----------------------------
Don D. Sykora
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
4.1* -- Restated Certificate of Incorporation of the Company (Form S-1,
Reg. No. 333-06195, Ex. 3.1).
4.2* -- Bylaws of the Company (Form S-1, Reg.No. 333-06195, Ex. 3.2).
4.3* -- Form of Certificate representing Common Stock (Form S-1, Reg.No.
333-06195, Ex. 4.1).
4.4* -- Rights Agreement between the Company and ChaseMellon Shareholder
Services, L.L.C., including form of Rights Certificate as Exhibit
B thereto (Form S-8, Reg. No. 333-13299, Ex. 4.4).
4.5 -- 1997 Employee Incentive Plan of American Residential Services,
Inc.
5 -- Opinion of John D. Held
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of John D. Held (included in Exhibit 5).
24 -- Powers of Attorney (included on the signature pages hereof).
- ---------------
* Incorporated herein by reference as indicated.
<PAGE>
EXHIBIT 4.5
1997 EMPLOYEE INCENTIVE PLAN
OF
AMERICAN RESIDENTIAL SERVICES, INC.
1. Establishment of This Plan. American Residential Services, Inc., a
Delaware corporation (the "Company"), hereby establishes this 1997 Employee
Incentive Plan of American Residential Services, Inc. (this "Plan") effective as
of December 1, 1997. As of such effective date of this Plan, certain options
(the "Existing Options") previously awarded under the 1996 Incentive Plan of
American Residential Services, Inc. shall be converted into Options under this
Plan for certain Participants in this Plan. The Existing Options shall be
adjusted so that they shall consist of or relate to the same number of shares of
Common Stock that are the subject of the Existing Options immediately prior to
such effective date, without any alteration or enlargement of the rights of the
holders thereof. References in this Plan to "Paragraphs" are to Paragraphs of
this Plan.
2. Definitions. As used in this Plan, the following terms have the
following respective meanings:
"Authorized Officer" means the CEO (or any other senior officer of the
Company to whom the CEO delegates, by written notice to the Committee of
that delegation, authority to execute any Award Agreement).
"Award" means an Employee Award or an Independent Contractor Award.
"Award Agreement" means any Employee Award Agreement or Independent
Contractor Award Agreement.
"Board" means the Board of Directors of the Company.
"CEO" means at any time the chief executive officer of the Company at
that time.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means the Compensation Committee of the Board or any other
committee of the Board which the Board designates by a written resolution
to administer this Plan.
"Common Stock" means the Common Stock, par value $.001 per share, of
the Company.
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"Company" means American Residential Services, Inc., a Delaware
corporation.
"Employee" means any salaried employee of the Company or any of its
Subsidiaries.
"Employee Award" means the grant under this Plan of any Option or SAR,
whether granted singly or in combination or tandem with any other Award, to
a Participant who is an Employee on such terms and subject to such
conditions and limitations as the Committee may establish consistent with
the terms of this Plan.
"Employee Award Agreement" means a written agreement between the
Company and a Participant who is an Employee which sets forth the terms,
conditions and limitations applicable to an Employee Award granted to that
Employee.
"Fair Market Value" of a share of Common Stock means, as of a
particular date, (i) if shares of Common Stock are listed on a national
securities exchange, the mean between the highest and lowest sales price
per share of Common Stock on the consolidated transaction reporting system
for the principal national securities exchange on which shares of Common
Stock are listed on that date, or, if there shall have been no such sale so
reported on that date, on the last preceding date on which such a sale was
so reported, (ii) if shares of Common Stock are not so listed but are
quoted on the Nasdaq National Market, the mean between the highest and
lowest sales price per share of Common Stock reported by the Nasdaq
National Market on that date, or, if there shall have been no such sale so
reported on that date, on the last preceding date on which such a sale was
so reported, (iii) if the Common Stock is not so listed or quoted, the
mean between the closing bid and asked price on that date, or, if there are
no quotations available for that date, on the last preceding date for which
those quotations are available, as reported by the Nasdaq Stock Market, or,
if not reported by the Nasdaq Stock Market, by the National Quotation
Bureau Incorporated, or (iv) if shares of Common Stock are not publicly
traded, the most recent value determined by an independent appraiser
appointed by the Company for that purpose.
"Independent Contractor" means a person providing services to the
Company or any of its Subsidiaries otherwise than in his capacity as an
Employee or a Nonemployee Director.
"Independent Contractor Award" means the grant under this Plan of any
Option or SAR, whether granted singly or in combination or tandem with any
other Award, to a Participant who is an Independent Contractor on such
terms and subject to such conditions and limitations as the Committee may
establish consistent with the terms of this Plan.
"Independent Contractor Award Agreement" means a written agreement
between the Company and a Participant who is an Independent Contractor
which sets forth the terms,
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<PAGE>
conditions and limitations applicable to an Independent Contractor Award
granted to that Independent Contractor.
"Option" means a right to purchase a specified number of shares of
Common Stock at a specified price.
"Participant" means an Employee or Independent Contractor to whom an
Award has been made under this Plan.
"SAR" means a right to receive a payment, in cash or Common Stock,
equal to the excess of the Fair Market Value or other specified valuation
of a specified number of shares of Common Stock on the date the right is
exercised over a specified strike price, in each case, as determined by the
Committee.
"Subsidiary" means (i) in the case of a corporation, any corporation
of which the Company directly or indirectly owns shares representing more
than 50% of the combined voting power of the shares of all classes or
series of capital stock of that corporation which have the right to vote
generally on matters submitted to a vote of the stockholders of that
corporation, and (ii) in the case of a partnership or other business entity
not organized as a corporation, any such business entity of which the
Company directly or indirectly owns more than 50% of the voting, capital or
profits interests (whether in the form of partnership interests, membership
interests or otherwise).
3. Objectives. The Company has designed this Plan (i) to attract
and retain key Employees and Independent Contractors, (ii) to encourage the
sense of proprietorship of these persons in the Company and (iii) to stimulate
the active interest of these persons in the development and financial success of
the Company and its Subsidiaries by making Awards under this Plan.
4. Eligibility. (a) Employees. Key Employees eligible for
Employee Awards are those assigned or to be assigned positions of responsibility
and whose performance, in the judgment of the Committee, can have a significant
effect on the success of the Company and its Subsidiaries. Notwithstanding the
foregoing sentence, no Employee who is an officer of the Company or a member of
the Board will be eligible to receive an Award under this Plan. Employees
holding Employee Awards who later become officers of the Company or members of
the Board may continue to participate in this Plan with respect to their
existing Employee Awards, but will not be eligible for additional grants of
Awards under this Plan.
(b) Independent Contractors. Independent Contractors eligible for
Independent Contractor Awards are those Independent Contractors providing
services to, or who will provide services to, the Company or any of its
Subsidiaries.
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<PAGE>
5. Common Stock Available for Awards. Subject to the provisions of
Paragraph 14, there shall be available for Awards under this Plan an aggregate
of the greater of (a) 1,500,000 shares of Common Stock or (b) 10% of the number
of shares of Stock issued and outstanding on the last day of each calendar
quarter, commencing on December 31, 1997. Such limitation on available shares
shall include shares of Common Stock subject to Existing Options converted into
Options hereunder. The number of shares of Common Stock which are the subject of
Awards that are forfeited or terminated, expire unexercised, are settled in cash
in lieu of Common Stock or in a manner such that all or some of the shares
covered thereby are not issued to a Partic ipant or are exchanged for a
consideration that does not involve Common Stock will again immediately become
available for Awards hereunder. The Committee may from time to time adopt and
observe such procedures concerning the counting of shares against the Plan
maximum as it may deem appropriate. The Board and the appropriate officers of
the Company will from time to time take whatever actions are necessary to file
any required documents with governmental authorities, stock exchanges and
transaction reporting systems to ensure that shares of Common Stock are
available for issuance pursuant to Awards.
6. Administration. (a) The Committee will administer this Plan.
(b) Subject to the provisions hereof, the Committee will have full and
exclusive power and authority to administer this Plan and to take all actions
that are specifically contemplated hereby or are necessary or appropriate in
connection with the administration hereof. The Committee also will have full
and exclusive power to interpret this Plan and to adopt such rules, regulations
and guidelines for carrying out this Plan as it may deem necessary or proper,
all of which powers will be exercised in the best interests of the Company and
in keeping with the objectives of this Plan. The Committee may, in its
discretion, provide for the extension of the exercisability of any Award,
accelerate the exercisability of any Award, eliminate or make less restrictive
any restrictions contained in any Award, waive any restriction or other
provision of this Plan or any Award or otherwise amend or modify any Award in
any manner that is either (i) not adverse to the Participant to whom that Award
was granted or (ii) consented to in writing by that Participant. The Committee
may grant an Employee Award to any individual who has agreed in writing to
become an Employee within six months after the date of that agreement, provided
that the effectiveness of that Award will be subject to the condition that the
individual actually becomes an Employee within that time period. The Committee
may correct any defect or supply any omission or reconcile any inconsistency in
this Plan or in any Award in the manner and to the extent the Committee deems
necessary or desirable to further the purposes of this Plan. Any decision of
the Committee in the interpretation and administration of this Plan will lie
within its sole and absolute discretion and will be final, conclu sive and
binding on all parties concerned.
(c) No member of the Committee or officer of the Company to whom the
Committee has delegated authority in accordance with the provisions of Paragraph
7 will be liable for anything done or omitted to be done by him or her, by any
member of the Committee or by any
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officer of the Company in connection with the performance of any duties under
this Plan, except for his or her own willful misconduct or as expressly provided
by statute.
7. Delegation of Authority. The Committee may delegate to the CEO
and to other senior officers of the Company its duties under this Plan on such
terms and subject to such conditions or limitations as the Committee may
establish.
8. Awards. (a) The Committee will determine the type or types of
Awards to be made and will designate from time to time the Employees and
Independent Contractors who are to receive Awards. Each Award will be evidenced
by an Award Agreement containing such terms, conditions and limitations as the
Committee determines in its sole discretion and signed by the Participant to
whom the Award is made and by an Authorized Officer for and on behalf of the
Company. Awards may be granted singly or in combination or tandem with other
Awards. Awards also may be made in combination or tandem with, in replacement of
or as alternatives to grants or rights under this Plan or any other employee
plan of the Company or any of its Subsidiaries, including the plan of any
acquired entity. An Award may provide for the grant or issuance of additional,
replacement or alternative Awards on the occurrence of specified events,
including the exercise of the original Award granted to a Participant. All or
part of an Award may be subject to conditions established by the Committee,
which may include, but are not limited to, continuous service with the Company
and its Subsidiaries, achievement of specific business objectives, increases in
specified indices, attainment of specified growth rates and other comparable
measurements of performance. If a Participant holding an Employee Award ceases
to be an Employee, any unexercised, deferred, unexercisable or unpaid portion of
that Employee Award will be treated as set forth in the applicable Employee
Award Agreement. The types of Awards that may be made under this Plan are as
follows:
(i) Stock Option. An Award may be in the form of an Option. The price
at which any share of Common Stock may be purchased on the exercise of any
Option will be not less than the Fair Market Value of a share of the Common
Stock on the date of grant of that Option (or any prior Option for which it
is exchanged or substituted), and the Committee will determine the other
terms, conditions and limitations applicable to each Option, including its
term and the date or dates on which it becomes exercisable; and
(ii) Stock Appreciation Right. An Award may be in the form of an SAR.
The Committee will determine the terms, conditions and limitations
applicable to each SAR awarded pursuant to this Plan, including its term
and the date or dates on which it becomes exercisable.
(b) Notwithstanding anything to the contrary contained in this Plan,
no Participant may be granted, during any one-year period, Employee Awards
consisting of Options or SARs that are exercisable for more than 50,000 shares
of Common Stock.
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9. Payment of Awards. (a) General. Payment of Awards that are
Options will be made in the form of Common Stock. Payment of Awards that are
SARs may be made in the form of cash or Common Stock or a combination thereof.
Awards paid in the form of Common Stock may include such restrictions as the
Committee will determine, including, in the case of Common Stock, restrictions
on transfer and forfeiture provisions.
(b) Deferral. With the approval of the Committee, amounts payable in
respect of Awards may be deferred and paid either in the form of installments or
as a lump-sum payment. The Committee may permit selected Participants to elect
to defer payments of either one or both types of Awards in accordance with
procedures the Committee establishes. Any deferred payment of an Award, whether
elected by the Participant or specified by the applicable Award Agreement
or by the Committee, may be forfeited if and to the extent that the applicable
Award Agreement so provides.
(c) Substitution of Awards. At the discretion of the Committee, a
Participant may be offered an election to substitute any Award for another Award
or Awards of the same or a different type.
10. Option Exercise. The price at which shares of Common Stock may
be purchased under an Option will be paid in full at the time of exercise in
cash or, if elected by the optionee, the optionee may purchase those shares by
means of tendering Common Stock or surrendering another Award, including shares
of restricted stock issued under other plans of the Company, valued at their
Fair Market Value per share on the date of exercise, or any combination thereof.
The Committee will determine acceptable methods for Participants to tender
Common Stock or other Awards. The Committee may provide for procedures to
permit the exercise or purchase of Awards by use of the proceeds to be received
from the sale of Common Stock issuable pursuant to an Award. Unless otherwise
provided in the applicable Award Agreement, if shares of restricted stock issued
under another plan or plans of the Company are tendered as consideration for the
exercise of an Option, the number of the shares issued on the exercise of the
Option which equals the number of shares of restricted stock used as
consideration therefor will be subject to the same restrictions as the
restricted stock so submitted as well as to any additional restrictions the
Committee may impose.
11. Taxes. The Company will have the right to deduct applicable
taxes from any Employee Award payment and withhold, at the time of delivery of
cash or shares of Common Stock under this Plan, or at the time otherwise
required by applicable law, an appropriate amount of cash or number of shares of
Common Stock or a combination thereof for payment of taxes required by law or to
take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for withholding of those taxes. The Committee may
permit withholding to be satisfied by the transfer to the Company of shares of
Common Stock theretofore owned by the holder of the Employee Award with respect
to which withholding is required. If shares of Common Stock are used to satisfy
tax withholding, those shares will be valued at their Fair Market Value per
share
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when the tax withholding is required to be made. The Committee may provide for
loans, on either a short-term or demand basis, from the Company to a Participant
to permit the payment of taxes required by law.
12. Amendment, Modification, Suspension or Termination. The Board
may amend, modify, suspend or terminate this Plan for the purpose of meeting or
addressing any changes in legal requirements or for any other purpose permitted
by law, except that no amendment or alteration that would adversely affect the
rights of any Participant under any Award previously granted to that
Participant, including Existing Awards, will be made without the consent of that
Participant.
13. Assignability. Unless otherwise determined by the Committee and
provided in the applicable Award Agreement, no Award or any other benefit under
this Plan will be assignable or otherwise transferable except by will or the
laws of descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder. The Committee may
prescribe and include in any Award Agreement other restrictions on transfer.
Any attempted assignment of an Award or any other benefit under this Plan in
violation of this Paragraph 13 will be null and void.
14. Adjustments. (a) The existence of outstanding Awards will not
affect in any manner the right or power of the Company or its stockholders to
make or authorize any or all adjustments, recapitalizations, reorganizations or
other changes in the capital stock of the Company or its business or any merger
or consolidation of the Company, or any issue of bonds, debentures, preferred or
other stock (whether or not that issue is prior to, on a parity with or junior
to the Common Stock) or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding of any kind, whether or not of a character similar
to that of the acts or proceedings enumerated above.
(b) If any subdivision, split or combination of outstanding shares of
Common Stock, or any declaration of a dividend payable in shares of Common
Stock, occurs, (i) the number of shares of Common Stock reserved under this
Plan, (ii) the number of shares of Common Stock covered by outstanding Awards,
(iii) the exercise or other price in respect of those Awards and (iv) the
appropriate Fair Market Value and other price determinations for those Awards
each will be proportionately adjusted by the Board to reflect the consequences
of that occurrence. If any recapitalization or capital reorganization of the
Company, any consolidation or merger of the Company with another corporation or
entity, any adoption by the Company of any plan of exchange affecting the Common
Stock or any distribution to holders of Common Stock of securities or property
(other than normal cash dividends) occurs, the Board will make appropriate
adjustments to the amounts or other items referred to in clauses (ii), (iii) and
(iv) of the preceding sentence to give effect to that transaction; provided,
that such adjustments will be only those as are necessary to maintain the
proportionate interest of the holders
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of the Awards and preserve, without exceeding, the value of those Awards. In the
event of a corporate merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation, the Board will be authorized to issue
or assume Awards by means of substitution of new Awards, as appropriate, for
previously issued Awards or to assume previously issued Awards as part of such
adjustment.
15. Restrictions. No Common Stock or other form of payment will be
issued with respect to any Award unless the Company is satisfied, on the basis
of advice of its counsel, that the issuance will comply with applicable federal
and state securities laws. Certificates evidencing shares of Common Stock
delivered under this Plan (to the extent that the shares are so evidenced) may
be subject to such stop-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations and other requirements of the
Securities and Exchange Commission, any securities exchange or transaction
reporting system on which the Common Stock is then listed or to which it is
admitted for quotation and any applicable federal or state securities law. The
Committee may cause a legend or legends to be placed upon those certificates (if
any) to make appropriate reference to those restrictions.
16. Unfunded Plan. Insofar as it provides for Awards of cash, Common
Stock or rights thereto, this Plan will be unfunded. Although bookkeeping
accounts may be established with respect to Participants who are entitled to
cash, Common Stock or rights thereto under this Plan, any such accounts will be
used merely as a bookkeeping convenience. The Company will not be required to
segregate any assets that may at any time be represented by cash, Common Stock
or rights thereto, nor will this Plan be construed as providing for that
segregation, nor shall the Company, the Board or the Committee be deemed to be a
trustee of any cash, Common Stock or rights thereto to be granted under this
Plan. Any liability or obligation of the Company to any Participant with
respect to an Award of cash, Common Stock or rights thereto under this Plan
shall be based solely on any contractual obligations that may be created by this
Plan and any Award Agreement, and no such liability or obligation of the Company
will be deemed to be secured by any pledge or other encumbrance on any property
of the Company. Neither the Company nor the Board nor the Committee will be
required to give any security or bond for the performance of any obligation that
may be created by this Plan.
17. Governing Law. This Plan and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, will be
governed by and construed in accordance with the laws of the State of Delaware.
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EXHIBIT 5
January 26, 1998
American Residential Services, Inc.
Post Oak Tower, Suite 725
5051 Westheimer Road
Houston, Texas 77056-5604
Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") being filed by American Residential Services, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to 1,532,132
shares of common stock of the Company, par value $.001 per share ("Common
Stock"), that may be issued pursuant to the 1997 Employee Incentive Plan of
American Residential Services, Inc. (the "Plan"), certain legal matters in
connection with those shares of Common Stock are being passed on for the Company
by me. At your request, this opinion is being furnished for filing as Exhibit 5
to the Registration Statement.
In my capacity as General Counsel of the Company, I have examined the
Company's Restated Certificate of Incorporation and Bylaws, each as amended to
date, and the originals, or copies certified or otherwise identified, of
corporate records of the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as
a basis for the opinions hereinafter expressed. In connection with this
opinion, I have relied on certificates of officers of the Company with respect
to the accuracy of material factual matters contained in or covered by the
certificates referred to above.
Based on and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware.
2. On the issuance of shares of Common Stock pursuant to the
provisions of the Plan and the related award agreements authorized and
approved by the Compensation Committee of the Board of Directors of the
Company for consideration at least equal to the par value of those shares,
those shares of Common Stock will be duly authorized by all
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American Residential Services, Inc. -2- January 26, 1997
necessary corporate action on the part of the Company, validly issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ John D. Held
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our reports included in American Residential Services, Inc.'s
(ARS) Annual Report on Form 10-K for the year ended December 31, 1996, and our
report included in ARS' Current Report on Form 8-K dated December 8, 1997, (and
to all references to our firm) included in or made a part of this Registration
Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
January 23, 1998
