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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SERVICE EXPERTS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 62-1639453
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
1134 Murfreesboro Road, Nashville, Tennessee 37217
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check the
following box. / /
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Names of each exchange on which
to be so registered each class is to be registered
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None None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
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Item 1. Description of Registrant's Securities to be Registered.
For a description of the Registrant's Common Stock, $.01 par value
per share, reference is made to the information set forth under the caption
"Description of Capital Stock" in the Prospectus forming a part of the
Registration Statement on Form S-1 of the Registrant filed with the Securities
and Exchange Commission (Registration No. 333-07037), which information is
incorporated by reference and attached hereto as Exhibit 1.
Item 2. Exhibits.
1. Description of Capital Stock.
2. Specimen of Common Stock certificate.
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, Registration No. 333-07037).
3.2 Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, Registration No.
333-07037).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
SERVICE EXPERTS, INC.
Date: August 7, 1996 By: /s/ Alan R. Sielbeck
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Alan R. Sielbeck
Chairman and Chief
Executive Officer
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 30,000,000 shares of Common Stock, $.01
par value per share, and 10,000,000 shares of preferred stock, $.01 par value
per share (the "Preferred Stock"). Upon completion of the Offering and giving
effect to the Combination, the Company will have 8,257,401 shares of Common
Stock (assuming an initial offering price of $13.00 per share) and no shares of
Preferred Stock outstanding. The following description of capital stock of the
Company is qualified in its entirety by reference to the Company's Restated
Certificate of Incorporation, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. An additional
900,000 shares of Common Stock are reserved for issuance upon exercise of
employee and director stock options, of which options to purchase shares have
been granted as of the date hereof. See "Management -- Compensation Pursuant to
Plans." As of June 30, 1996, there are approximately 40 holders of Common Stock.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share on all matters
submitted to a vote of stockholders. Stockholders have no right to cumulate
their votes in the election of directors. Accordingly, holders of a majority of
the shares of Common Stock entitled to vote in any election of directors may
elect all of the directors standing for election. Holders of Common Stock are
entitled to receive dividends and other distributions when, as and if declared
from time to time by the Board of Directors out of funds legally available
therefor. In the event of a voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities, including all
distributions to holders of Preferred Stock having a liquidation preference over
the Common Stock. The Company's Restated Certificate of Incorporation gives the
holders of Common Stock no preemptive or other subscription or conversion
rights, and there are no redemption provisions with respect to such shares. All
outstanding shares of Common Stock are, and the shares offered hereby will be,
when issued and paid for, fully paid and non-assessable. The rights, preferences
and privileges of holders of Common Stock are subject to, and may be adversely
effected by, the rights of holders of shares of any series of Preferred Stock
which the Company may designate and issue in the future. For a description of
certain registration rights attached to warrants to purchase Common Stock, see
"Underwriting."
PREFERRED STOCK
The Board of Directors has the authority, without any further vote or
action of the stockholders of the Company, to issue shares of the Preferred
Stock in one or more series and to fix the number of shares, designations,
relative rights (including voting rights), preferences and limitations of such
series to the fullest extent now or hereafter permitted by Delaware law. The
Company has no present intention to issue any series of Preferred Stock.
LIMITATIONS ON LIABILITY OF OFFICERS AND DIRECTORS
The Company's Restated Certificate of Incorporation and Bylaws provide for
indemnification of the officers and directors of the Company to the fullest
extent permitted by Delaware law, including some instances in which
indemnification is otherwise discretionary under Delaware law. The Restated
Certificate of Incorporation contains provisions that eliminate the personal
liability of the Company's directors for monetary damages resulting from
breaches of their fiduciary duty other than liability for breaches of the
director's duty of loyalty to the Company or its stockholders, for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, violations under Section 174 of the Delaware General
Corporation Law, or for any transaction from which the director derived an
improper personal benefit. The Company believes that these provisions are
essential to attracting and retaining qualified persons as officers and
directors.
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There is no pending litigation or proceeding involving a director or
officer of the Company as to which indemnification is being sought, nor is the
Company aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
ANTI-TAKEOVER PROVISIONS
Section 203 of the Delaware General Corporation Law prevents an "interested
stockholder" (defined in Section 203, generally, as a person owning 15% or more
of a corporation's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with a publicly-held Delaware
corporation for three years following the date such person became an interested
stockholder unless (i) before such person became an interested stockholder, the
board of directors of the corporation approved the transaction in which the
interested stockholder became an interested stockholder or approved the business
combination; (ii) upon consummation of the transaction that resulted in the
interested stockholder's becoming an interested stockholder, the interested
stockholder owns at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced (excluding stock held by directors who are
also officers of the corporation and by employee stock plans that do not provide
employees with the right to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer); or (iii) following
the transaction in which such person became an interested stockholder, the
business combination is approved by the board of directors of the corporation
and authorized at a meeting of stockholders by the affirmative vote of the
holders of two-thirds of the outstanding voting stock of the corporation not
owned by the interested stockholder.
Certain provisions of the Company's Restated Certificate of Incorporation
and Bylaws may make a change in the control of the Company difficult to effect,
even if a change in control were in the stockholders' interest. These include
certain super-majority vote requirements to amend or repeal certain provisions
of the Company's Restated Certificate of Incorporation or Bylaws, including
provisions relating to the election of a staggered Board of Directors and the
limitation that directors be removed only for cause by a majority of the
outstanding voting stock. See "Management -- Executive Officers and Directors."
The Company's Restated Certificate of Incorporation eliminates the right of
stockholders to take action by written consent. In addition, the Company's
Restated Certificate of Incorporation allows the Board to determine the terms of
the Preferred Stock which may be issued by the Company without approval of the
holders of the Company's Common Stock. The ability of the Company to issue
Preferred Stock in such manner could enable the Board of Directors to prevent
changes in management and control of the Company. These provisions are expected
to discourage certain types of coercive takeover practices and inadequate
takeover bids and to encourage persons seeking to acquire control of the Company
first to negotiate with the Company. Management believes that the benefits of
increased protection of the Company's potential ability to negotiate with the
proponent of an unfriendly or unsolicited proposal to acquire or restructure the
Company outweigh the disadvantages of discouraging such proposals. Management
believes that negotiations of such proposals, among other things, could result
in an improvement of their terms.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is The
Boatmen's National Bank of St. Louis.
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<S> <C> <C>
[CREST LOGO] [SERVICE EXPERTS LOGO] [CREST LOGO]
COMMON STOCK INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 817567 10 0
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THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $.01 PAR VALUE, OF
- --------------------------------SERVICE EXPERTS, INC.---------------------------
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized Attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid unless countersigned and registered by
the Transfer Agent and Registrar.
WITNESS the facsimile signatures of the duly authorized officers of the
Corporation.
Dated:
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COUNTERSIGNED AND REGISTERED: /s/ ALAN R. SIELBECK
BOATMEN'S TRUST COMPANY ------------------------------------
(St. Louis, Missouri) CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TRANSFER AGENT
AND REGISTRAR /s/ ANTHONY M. SCHOFIELD
BY ------------------------------------------------
AUTHORIZED SIGNATURE CHIEF FINANCIAL OFFICER, SECRETARY AND TREASURER
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THE CORPORATION WILL FURNISH, WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF
THE CORPORATION, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS, SUCH REQUEST MAY BE MADE TO THE CORPORATION OR ITS
TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
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TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ....................Custodian ...............
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as tenants Act .........................................
in common (States)
Additional abbreviations may also be used though not in the above list.
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For value received, ______________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________ shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated ______________________________
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______________________________________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: _______________________________________________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM PURSUANT TO S.E.C. RULE 17Ad-15.
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KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A
CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
