AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 2000
REGISTRATION NO. 333 - __________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORNELL COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
(STATE OR OTHER JURISDICTION OF 76-0433642
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
1700 West Loop South, Suite 1500
Houston, Texas 77027
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Cornell Companies, Inc. 2000 Broad-Based Employee Plan
(FULL TITLE OF THE PLAN)
Steven W. Logan
Chief Executive Officer
1700 West Loop South, Suite 1500
Houston, Texas 77027
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(713) 623-0790
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
==================== ========== ================ =============== =============
PROPOSED
AMOUNT PROPOSED MAXIMUM
TITLE OF TO BE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES REGISTERED OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED (1) (3) PER SHARE(2) PRICE(2) FEE
-------------------- ---------- ---------------- --------------- -------------
COMMON STOCK, PAR
VALUE $.001 PER
SHARE 400,000 $3.75 $1,500,000 $396
==================== ========== ================ =============== =============
(1) Represents the maximum number of shares which could be issued under the
Cornell Companies, Inc. 2000 Broad-Based Employee Plan, and includes an
indeterminate number of shares that may be issuable by reason of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) and (c), based on the average of the high and low sales price
of a share of the Common Stock on December 14, 2000 as reported on the New
York Stock Exchange with respect to 400,000 shares of Common Stock which may
be issued under the Cornell Companies, Inc. 2000 Broad-Based Employee Plan.
(3) Includes the Series A Junior Participating Preferred Stock Purchase Rights
("Rights") of the Company associated with the shares of Common Stock being
registered.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Registration Statement on Form S-8. Such documents
and the documents incorporated by reference in this Registration Statement on
Form S-8 pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1999;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000;
3. Description of the Company's Common Stock set forth under the
caption "Item 1. Description of Registrant's Securities to be
Registered" on Form 8-A filed July 17, 1996 (as amended by Amendment
No. 1 on Form 8-A/A filed September 11, 1996); and
4. Description of Rights set forth under the caption "Item 1.
Description of Registrant's Securities to be Registered" on Form 8-A
filed May 11, 1998, as amended by the Form 8-A/A filed May 15, 1998.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
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
DELAWARE GENERAL CORPORATION LAW
Consistent with Section 145(a) of the Delaware General Corporation Law
(the "DGCL"), the Company may indemnify and, in certain cases, must indemnify,
any person who was or is made a party to any action by reason of the fact that
he is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, in the case of a non-derivative action, against
judgments, fines, amounts paid in settlement, and reasonable expenses (including
attorneys' fees) incurred by him as a result of such action, and in the case of
a derivative action, against expenses (including attorneys' fees), if in either
type of action he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company.
This indemnification does not apply, in a derivative action, to matters as
to which it is adjudged that the director, officer, employee or agent is liable
to the Company, unless upon court order it is determined that, in view of all
the circumstances of the case and despite such adjudication of liability, he is
fairly and reasonably entitled to indemnity for expenses, and in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
CERTIFICATE OF INCORPORATION
The Company's Restated Certificate of Incorporation, as amended, 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 (1) for any breach of the director's duty of
loyalty to the Company or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the DGCL or (4) 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 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. Additionally, the Certificate of Incorporation provides
that the Company will indemnify its officers and directors to the fullest extent
permitted by the DGCL.
BYLAWS
The Company's Amended and Restated Bylaws generally provide for
indemnification, to the fullest extent authorized by the DGCL, of its officers,
directors, legal representatives, employees or agents and persons serving at the
request of the Company in such capacities for other business organizations
against all expense, liability and loss (including without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred by reason of his position
with the Company or such other business organizations. The Bylaws further
provide that the right to indemnification is a contract right and includes the
right for the Company to pay the expenses incurred in defending any such
proceeding in advance of its final disposition and consistent with the DGCL. In
addition, the Bylaws provide that the Company may, by action of its board of
directors, provide indemnification to employees and agents of the Company,
individually or as a group, with the same scope and effect as the
indemnification of directors and officers provided for in the Bylaws.
INDEMNIFICATION AGREEMENTS
The Company maintains Indemnification Agreements with each of its officers
and directors. The Indemnification Agreements provide that the Company shall
indemnify the officer or director and hold him harmless from any losses and
expenses which, in type or amount, are not insured under the directors and
officers' liability
3
<PAGE>
insurance maintained by the Company. The Indemnification Agreements generally
provide that the Company indemnifies the officer or director against losses and
expenses as a result of a claim or claims made against him for any breach of
duty, neglect, error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by the officer or director or any of the foregoing
alleged by any claimant or any claim against the officer or director solely by
reason of him being an officer or director of the Company, subject to certain
exclusions. The Indemnification Agreements also provide certain procedures
regarding the right to indemnification and for the advancement of expenses.
INSURANCE
The Company maintains a policy of liability insurance to insure its
officers and directors against losses resulting from certain acts committed by
them in their capacities as officers and directors of the Company.
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 (incorporated
by reference to Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
4.2 Certificate of Amendment to Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-8 (Reg. No. 333-42444)).
*4.3 Amended and Restated Bylaws of the Company.
4.4 Certificate representing Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1
(Reg. No. 333-08243) (the "Form S-1")).
4.5 Registration Rights Agreement dated as of March 31, 1994, as
amended, among the Company and the stockholders listed on the
signature pages thereto (incorporated by reference to Exhibit 4.2 to
the Form S-1).
4.6 Note and Equity Purchase Agreement among the Company, American
Capital Strategies, Ltd. and Teachers Insurance and Annuity
Association of America dated as of July 21, 2000 (incorporated by
reference to Exhibit 10.3 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
4.7 Rights Agreement dated as of May 1,1998 between the Company and
American Securities Transfer & Trust, Inc., as Rights Agent
(incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A filed May 11, 1998).
4.8 Warrant issued by the Company to American Capital Strategies, Ltd.
dated as of as of July 21, 2000 (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2000).
4
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4.9 Warrant issued by the Company to Teachers Insurance and Annuity
Association of America dated as of July 21, 2000 (incorporated by
reference to Exhibit 10.5 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
*4.10 Cornell Companies, Inc. 2000 Broad-Based Employee Plan.
*5.1 Opinion of Locke Liddell & Sapp LLP.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1).
*24.1 Powers of Attorney.
----------------
* filed herewith.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
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)
under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20 percent 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 this 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 this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities 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 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 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 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, 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 19th day of December,
2000.
CORNELL COMPANIES, INC.
By: /S/ STEVEN W. LOGAN
Steven W. Logan
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ STEVEN W. LOGAN President, Chief Executive Officer and December 19, 2000
STEVEN W. LOGAN Director (Principal Executive Officer)
/S/ JOHN L. HENDRIX Senior Vice President and Chief Financial Officer December 19, 2000
JOHN L. HENDRIX Senior (Principal Financial and Accounting Officer)
*/S/ PETER A. LEIDEL Chairman of the Board December 19, 2000
PETER A. LEIDEL
*/S/ ANTHONY R. CHASE Director December 19, 2000
ANTHONY R. CHASE
*/S/ JAMES H.S. COOPER Director December 19, 2000
JAMES H.S. COOPER
*/S/ DAVID M. CORNELL Director December 19, 2000
DAVID M. CORNELL
*/S/ CAMPBELL A. GRIFFIN, JR. Director December 19, 2000
CAMPBELL A. GRIFFIN, JR.
*/S/ ARLENE R. LISSNER Director December 19, 2000
ARLENE R. LISSNER
*/S/ TUCKER TAYLOR Director December 19, 2000
TUCKER TAYLOR
*By: /S/ STEVEN W. LOGAN
STEVEN W. LOGAN
Attorney-in-Fact
</TABLE>
7
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
----------------------------------------------------------------------------
4.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
4.2 Certificate of Amendment to Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-8 (Reg. No. 333-42444)).
*4.3 Amended and Restated Bylaws of the Company.
4.4 Certificate representing Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1
(Reg. No. 333-08243)(the "Form S-1")).
4.5 Registration Rights Agreement dated as of March 31, 1994, as
amended, among the Company and the stockholders listed on the
signature pages thereto (incorporated by reference to Exhibit 4.2 to
the Form S-1).
4.6 Note and Equity Purchase Agreement among the Company, American
Capital Strategies, Ltd. and Teachers Insurance and Annuity
Association of America dated as of July 21, 2000 (incorporated by
reference to Exhibit 10.3 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
4.7 Rights Agreement dated as of May 1,1998 between the Company and
American Securities Transfer & Trust, Inc., as Rights Agent
(incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A filed May 11, 1998).
4.8 Warrant issued by the Company to American Capital Strategies, Ltd.
dated as of as of July 21, 2000 (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2000).
4.9 Warrant issued by the Company to Teachers Insurance and Annuity
Association of America dated as of July 21, 2000 (incorporated by
reference to Exhibit 10.5 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
*4.10 Cornell Companies, Inc. 2000 Broad-Based Employee Plan.
*5.1 Opinion of Locke Liddell & Sapp LLP.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1).
*24.1 Powers of Attorney.
----------------
* filed herewith.
