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As filed with the Securities and Exchange Commission on April 21, 2000
Registration No. 333-93649
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20552
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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ENCOMPASS SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
Texas 76-0535259
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3 Greenway Plaza, Suite 2000 77046
Houston, Texas (Zip Code)
(Address of Principal Executive Offices)
ENCOMPASS SERVICES CORPORATION 1997 LONG-TERM INCENTIVE PLAN
FOR EMPLOYEES OF BUILDING ONE SERVICES CORPORATION
ENCOMPASS SERVICES CORPORATION 1997 NON-EMPLOYEE DIRECTORS' STOCK PLAN
FOR NON-EMPLOYEE DIRECTORS OF BUILDING ONE SERVICES CORPORATION
ENCOMPASS SERVICES CORPORATION OPTION AGREEMENTS FOR EMPLOYEES
OF BUILDING ONE SERVICES CORPORATION
ENCOMPASS SERVICES CORPORATION 1998 LONG-TERM INCENTIVE PLAN FOR
EMPLOYEES OF BUILDING ONE SERVICES CORPORATION
ENCOMPASS SERVICES CORPORATION 1999 LONG-TERM INCENTIVE PLAN FOR
EMPLOYEES OF BUILDING ONE SERVICES CORPORATION
(Full title of plans)
GRAY H. MUZZY
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
3 GREENWAY PLAZA, SUITE 2000
HOUSTON, TEXAS 77046
(Name and address of agent for service)
(713) 860-0100
(Telephone number, including area code, of agent for service)
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EXPLANATORY NOTES
This Post-Effective Amendment No. 1 on Form S-8 to the Registration
Statement on Form S-4 (the "Registration Statement") of Encompass Services
Corporation, formerly Group Maintenance America Corp. (the "Company"), relates
to 5,751,246 shares (the "Shares") of the Company's Common Stock, par value
$.001 per share (the "Common Stock"). In connection with the merger of Building
One Services Corporation ("Building One") with and into Group Maintenance
America Corp., with the Company the surviving entity, the Company assumed the
Building One 1997 Long-Term Incentive Plan (the "Building One 1997 Incentive
Plan"), the Building One 1997 Non-Employee Directors' Stock Plan (the "Building
One 1997 Directors' Plan"), the Building One Option Agreements (the "Building
One Option Agreements"), the Building One 1998 Long-Term Incentive Plan (the
"Building One 1998 Incentive Plan") and the Building One 1999 Long-Term
Incentive Plan (the "Building One 1999 Incentive Plan") and all outstanding
options to acquire Building One common stock granted thereunder. The Encompass
Services Corporation 1997 Long-Term Incentive Plan for Employees of
Building One Services Corporation (the "1997 Incentive Plan"), the Encompass
Services Corporation 1997 Non-Employee Directors' Stock Plan for Non-
Employee Directors of Building One Services Corporation (the "Non-Employee
Directors' Plan"), the Encompass Services Corporation Option Agreements for
Employees of Building One Services Corporation (the "Option Agreements"), the
Encompass Services Corporation 1998 Long-Term Incentive Plan for Employees of
Building One Services Corporation (the "1998 Incentive Plan") and the Encompass
Services Corporation 1999 Long-Term Incentive Plan for Employees of Building One
Services Corporation (the "1999 Incentive Plan") replace the Building One 1997
Incentive Plan, the Building One 1997 Director's Plan, the Building One Option
Agreements, the Building One 1998 Incentive Plan and the Building One 1999
Incentive Plan, respectively, as assumed by the Company.
Of the Shares, 2,733,743 are issuable pursuant to the 1997 Incentive Plan,
203,616 are issuable pursuant to the Non-Employee Directors' Plan, 87,998
are issuable pursuant to the Option Agreements, 1,148,811 are issuable pursuant
to the 1998 Incentive Plan and 1,577,078 are issuable pursuant to the 1999
Incentive Plan. All such shares were registered on the Company's Registration
Statement on Form S-4 (File No. 333-93649), and are being transferred to this
Form S-8.
Pursuant to Rule 416(a), the number of shares of Common Stock being
registered shall be adjusted to include any additional shares which may become
issuable as a result of stock splits, stock dividends, or similar transactions
in accordance with the anti-dilution provisions of the 1997 Incentive Plan, the
Non-Employee Directors' Plan, the Option Agreements, the 1998 Incentive Plan and
the 1999 Incentive Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) ((S) 230.428(b)(1)).
Such documents need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 ((S) 230.424). These documents and the documents incorporated by
reference in the registration statement pursuant to Item 3 of Part II of this
Form, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act. See Rule 428(a)(1) ((S) 230.428(a)(1)).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
1. The following documents, or portions of documents, previously filed by
Encompass Services Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are hereby incorporated herein by reference:
(a) (i) Annual Report on Form 10-K for the year ended December 31, 1999;
and
(ii) Current Reports on Form 8-K dated January 20, 2000; February 2,
2000; and February 25, 2000 and on Form 8-K/A dated April 17,
2000.
(b) The description of the Company's Common Stock, $.001 par value,
contained in the Registration Statement on Form 8-A dated November 4, 1997.
2. All reports subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange act of 1934, as amended
(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 in this Registration Statement and to be a part hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1.B of the Texas Business Corporation Act, as amended (the
"TBCA"), grants to a corporation the power to indemnify a person who was, is or
is threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director against judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses actually incurred
in connection therewith, only if it is determined that the person (1) conducted
himself in good faith; (2) reasonably believed that (a) in the case of conduct
in his official capacity as a director of the corporation, his conduct was in
the corporation's best interests, and (b) in all other cases, his conduct was at
least not opposed to the corporation's best interest; and (3) in the case of any
criminal proceeding, he had no reasonable cause to believe that his conduct was
unlawful. Article 2.02-1.C limits the allowable indemnification by providing
that, except to the extent permitted by Article 2.02-1.E, a director may not be
indemnified in respect of a proceeding in which the person was found liable
(1) on the basis that he improperly received a personal benefit, whether or not
the benefit resulted from an action taken in his official capacity, or (2) to
the corporation. Article 2.02-1.E provides that if a director is found liable to
the corporation or is found liable on the basis that he improperly received a
personal benefit, the permissible indemnification (1) is limited to reasonable
expenses actually incurred by the person in connection with the proceeding, and
(2) shall not be made in respect of any proceeding in which the person shall
have been found liable for willful or intentional misconduct in the performance
of his duty to the corporation. Finally, Article 2.02-1.H provides that a
corporation shall indemnify a director against reasonable expenses incurred by
him in connection with a proceeding in which he is a named defendant or
respondent because he is or was a director if he has been wholly successful, on
the merits or otherwise, in the defense of the proceeding.
With respect to the officers of a corporation, Article 2.02-1.O of the TBCA
provides that a corporation may indemnify and advance expenses to an officer of
the corporation to the same extent that it may indemnify and advance expenses to
directors under Article 2.02-1. Further, Article 2.01-1.O provides that an
officer of a corporation shall be indemnified as, and to the same extent,
provided by Article 2.02-1.H for a director.
The Amended and Restated Certificate of Incorporation of the Company
(the "Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such action, suit or
proceeding, and any inquiry or investigation that would lead to such action,
suit or proceeding (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Company or is or was serving at the request of the
Company as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to any
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director or officer or
in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the TBCA, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such
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amendment permits the Company to provide broader indemnification rights than
permitted prior thereto), against all judgments, fines, penalties (including
excise tax and similar taxes), settlements, and reasonable expenses actually
incurred by such indemnitee in connection therewith. The right to
indemnification conferred in this Article shall include the right to be paid by
the Company the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that if the TBCA requires, and advancement of expenses incurred by an
indemnitee shall be made only upon delivery to the Company of any undertaking,
by or on behalf of such indemnitee, to repay all amount so advanced if it shall
ultimately be determined by that such indemnitee is not entitled to be
indemnified for such expenses under this Article or otherwise.
The Certificate also provides, to the greatest extent permitted by
applicable law in effect from time to time, a director of the Company shall not
be liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director except for liability for:
(i) a breach of a director's duty of loyalty to the Company or its shareholders;
(ii) an act or omission not in good faith that constitutes a breach of duty of
the director to the Company or that involved intentional misconduct or a knowing
violation of the law; (iii) a transaction from which a director received an
improper benefit, whether or not the benefit resulted from an action taken
within the scope of the director's office; (iv) an act or omission for which the
liability of a director is expressly provided for by statute; or (v) an act
related to any unlawful stock repurchase or unlawful payment of a dividend.
The Certificate provides that the Company may purchase and maintain
insurance, at its expense, on behalf of any indemnitee against any liability
asserted against him and incurred by him in such a capacity or arising out of
his status as a representative of the Company, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the TBCA.
The Company has entered into employment agreements with its executive
officers pursuant to which the Company is generally obligated to indemnify such
officers to the full extent permitted by the TBCA as described above.
The Company has purchased liability insurance policies covering the
directors and officers of the Company, including to provide protection where the
Company cannot legally indemnify a director or officer and where a claim arises
under the Employee Retirement Income Security Act of 1974 against a director or
officer based on an alleged breach of fiduciary duty or other wrongful act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
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5.1* Opinion of Bracewell & Patterson, L.L.P. as to the legality of the
Common Stock being offered.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Frazier & Deeter, LLC.
23.4 Consent of Schenck & Associates SC.
23.5* Consent of Bracewell & Patterson, L.L.P. (included in their
opinion filed as Exhibit 5.1).
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* Filed as Exhibit 5 to the Company's Registration Statement on Form S-4
(Registration No. 333-93749).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to the registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(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;
(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 paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-8 and 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 Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, 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 the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on April 17,
2000.
ENCOMPASS SERVICES CORPORATION
By: /s/ J. Patrick Millinor, Jr.
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J. Patrick Millinor, Jr.
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the indicated capacities on April 17, 2000.
Signature Title
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/s/J. PATRICK MILLINOR, JR. Director and Chairman of the Board
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J. Patrick Millinor, Jr.
/s/JOSEPH M. IVEY Director, President and Chief Executive Officer
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Joseph M. Ivey
/s/DARREN B. MILLER Senior Vice President and Chief Financial Officer
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Darren B. Miller
/s/DANIEL W. KIPP Vice President, Treasurer and Chief Information
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Daniel W. Kipp (principal accounting officer)
/s/ANDREW AFRICK* Director
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Andrew Africk
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/s/VINCENT W. EADES* Director
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Vincent W. Eades
/s/MICHAEL GROSS* Director
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Michael Gross
/s/WILLIAM P. LOVE, JR.* Director
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William P. Love, Jr.
/s/DONALD L. LUKE* Director, Executive Vice President and Chief
- - ------------------------------ Operating Officer
Donald L. Luke
/s/LUCIAN L. MORRISON* Director
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Lucian L. Morrison
/s/BROOKS NEWMARK* Director
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Brooks Newmark
/s/M. JUDE REYES* Director
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M. Jude Reyes
/s/JOHN M. SULLIVAN* Director
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John M. Sullivan
*By: RANDOLPH W. BRYANT
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Randolph W. Bryant
(Attorney-in-Fact for persons indicated)
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EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
Encompass Services Corporation:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
Houston, Texas
April 17, 2000
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EXHIBIT 23.2
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 2000, except for Notes 1
and 19, which are as of February 22, 2000, relating to the financial statements
of Building One Services Corporation, which appears in Encompass Services
Corporation's Current Report on Form 8-K/A dated April 17, 2000.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
April 17, 2000
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EXHIBIT 23.3
CONSENT OF FRAZIER & DEETER, LLC
The Board of Directors
Encompass Services Corporation
(formerly named Group Maintenance America Corp.):
We consent to the use of our reports incorporated herein by reference.
/s/ FRAZIER & DEETER, LLC
FRAZIER & DEETER, LLC
Atlanta, Georgia
April 17, 2000
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EXHIBIT 23.4
CONSENT OF SCHENCK & ASSOCIATES SC
The Board of Directors
Encompass Services Corporation
(formerly named Group Maintenance America Corp.):
We consent to the use of the reports of Shinners, Hucovski and Company, S.C.
incorporated herein by reference. Effective July 1, 1999, Shinners, Hucovski and
Company, S.C. merged with Schenck & Associates SC.
/s/ SCHENCK & ASSOCIATES SC
SCHENCK & ASSOCIATES SC
Green Bay, Wisconsin
April 17, 2000
