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As filed with the Securities and Exchange Commission on August 20, 1999
REGISTRATION NO._________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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EARTHCARE COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 58-2335973
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14901 QUORUM DRIVE, SUITE 200
DALLAS, TEXAS 75240
(Address, including zip code, of registrant's principal executive offices)
EARTHCARE COMPANY 1999 STOCK OPTION PLAN
(Full title of plans)
DONALD F. MOOREHEAD, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
14901 QUORUM DRIVE, SUITE 200
DALLAS, TEXAS 75240
(972) 858-6025
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
COPIES TO:
LYNN S. SCOTT, ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Amount to Offering Price Aggregate Registration
be Registered Per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.0001 per share...... 1,800,000 $13.59 $24,462,000 $6,800
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices of Common Stock of EarthCare Company on August 17, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by the Registrant
with the Securities and Exchange Commission (the "Commission") and are
incorporated by reference in this Registration Statement:
(a) The Registrant's Post Effective Amendment No. 2 to
Registration Statement on Form S-1 dated August 3, 1999;
(b) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998;
(c) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1999 and March 31, 1999; and
(d) The description of the Registrant's common stock, par
value $.0001 per share ("Common Stock"), contained in the Registration
Statement on Form 10, dated November 30, 1998, filed under the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents filed by the Registrant subsequent to the
date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act and prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all securities offered
hereunder have been sold or that deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part of this Registration Statement from the date of
filing of such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interest of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
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The Company's Certificate of Incorporation, as amended, provides that
no director of the corporation shall 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 General Corporation Law of the State of Delaware (or the
corresponding provision of any successor law or act), and (iv) for any
transaction from which the director derived an improper personal benefit.
The Company must indemnify, and upon request will advance expenses to
any officer or director who was or is a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
including civil, criminal, administrative, investigative or otherwise, by reason
of the fact that such person is or was a director or officer of the Company, or
is or was acting at the request of the Company as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. This indemnification will not
apply if the indemnitee is adjudged liable to the Company, unless and only if
the court in which the action is brought determines the indemnitee is fairly and
reasonably entitled to indemnification by the Company.
EarthCare may also purchase and maintain insurance on behalf of its
directors and officers against any such liability that may be asserted as a
result of the director's or officer's service in such a capacity.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
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Exhibit Description
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<S> <C>
4.1 Certificate of Incorporation of the Company dated May 13, 1998 (incorporated by reference to
Exhibit 3.1 of Registrant's Registration Statement on Form 10, Registration No. 00024685, as
amended).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form 10, Registration No. 00024685, as amended).
5.1 Opinion of King & Spalding regarding legality of shares being registered.
15.1 Letter regarding Unaudited Interim Financial Information.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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;
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(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;
(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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
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.
(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) 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 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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INDEPENDENT PUBLIC ACCOUNTANTS
The audited financial statements incorporated by reference in this
Prospectus have been audited by various independent public accountants. The
companies and periods covered by these audits are indicated in the individual
accountants' reports. Such financial statements have been so incorporated in
reliance on the reports of the various independent accountants given on the
authority of such firms as experts in auditing and accounting.
With respect to the unaudited interim financial information as of and
for the three month and six month periods ended March 31, 1999 and June 30,
1999, incorporated by reference in this Prospectus, PricewaterhouseCoopers LLP
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
reports dated May 12, 1999 and August 9, 1999 and incorporated by reference
herein, states that they did not audit and that they do not express an opinion
on that interim financial information. Accordingly, the degree of reliance on
their report on such information should be restricted in light of the limited
nature of the review procedures applied. PricewaterhouseCoopers LLP is not
subject to the liability provisions of Section 11 of the Securities Act of 1933
for their report on the unaudited interim financial information because the
report is not a "report" or a "part" of the registration statement prepared or
certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11
of the Act.
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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 Dallas, State of Texas, on this 19th day of August,
1999.
EARTHCARE COMPANY
By: /s/Harry Habets
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Harry Habets
President, Chief Operating Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Donald F. Moorehead, Jr. and
Harry Habets, as his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution for such person and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same with all exhibits thereto and other
documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the date indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/Donald F. Moorehead, Jr. Chairman and Chief Executive August 20, 1999
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Donald F. Moorehead, Jr. Officer (Principal Executive Officer)
and Director
/s/Harry Habets President, Chief Operating Officer August 20, 1999
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Harry Habets Director
/s/Raymond M. Cash Vice Chairman and Director August 20, 1999
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Raymond M. Cash
/s/James E. Farrell Vice President and Chief Financial August 20, 1999
- --------------------------------------- Officer (Principal Financial and
James E. Farrell Principal Accounting Officer)
/s/William P. Hulligan Director August 20, 1999
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William P. Hulligan
/s/Elroy Roelke Director August 20, 1999
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Elroy Roelke
</TABLE>
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<TABLE>
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<S> <C> <C>
/s/Earl E. DeFrates Director August 20, 1999
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Earl E. DeFrates
/s/Brian Rosborough Director August 20, 1999
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Brian Rosborough
</TABLE>
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EXHIBIT INDEX
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Exhibit Description
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4.1 Restated and Amended Articles of Incorporation of Registrant
(incorporated by reference to Exhibit 2 of Registrant's
Registration Statement on Form 8-A dated March 25, 1997).
4.2 Bylaws of Registrant (incorporated by reference to
Exhibit 3 of Registrant's Registration Statement on Form 8-A dated
March 25, 1997).
5.1 Opinion of King & Spalding regarding legality of shares being registered.
15.1 Letter regarding Unaudited Interim Financial Information.
23.1 Consent of PriceWaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
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EXHIBIT 5.1
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Telephone (404) 572-4600
Telecopier (404) 572-5100
August 19, 1999
EarthCare Company
14901 Quorum Drive, Suite 200
Dallas, Texas 75240
Ladies and Gentlemen:
We have acted as counsel to EarthCare Company (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
the offering of up to 1,800,000 shares (the "Shares") of the Company's Common
Stock, pursuant to the EarthCare Company 1999 Stock Option Plan (the "Plan"). In
connection therewith, we have examined such corporate records, certificates of
public offices and other documents and records as we have considered necessary
or proper for the purpose of this opinion.
This opinion is limited by and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that the Shares, when issued and
delivered as described in the Registration Statement and Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ King & Spalding
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King & Spalding
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EXHIBIT 15. 1
EARTHCARE COMPANY
LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: EarthCare Company
Registration on Form S-8
We are aware that our reports dated May 12, 1999 and August 9, 1999, on our
reviews of the interim financial information of EarthCare Company for the
periods ended March 31, 1999 and June 30, 1999, are incorporated by reference in
this Registration Statement on Form S-8.
PricewaterhouseCoopers LLP
Tulsa, Oklahoma
August 20, 1999
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 13, 1999,
relating to the financial statements and financial statement schedule of
EarthCare Company, which appears in the Annual Report on Form 10-K of EarthCare
Company for the year ended December 31, 1998 and in the Registration Statement
on Form S-1 (Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 15, 1999,
relating to the financial statements of Ferrero Wastewater Management, Inc.,
which appears in the Annual Report on Form 10-K of EarthCare Company for the
year ended December 31, 1998 and in the Registration Statement on Form S-1
(Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 22, 1999,
relating to the financial statements of A Rapid Rooter Sewer & Drain Service,
Inc., which appears in the Annual Report on Form 10-K of EarthCare Company for
the year ended December 31, 1998 and in the Registration Statement on Form S-1
(Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 27, 1999,
relating to the financial statements of Seagraves, Inc. and Grease-Tec, Inc.,
which appears in the Annual Report on Form 10-K of EarthCare Company for the
year ended December 31, 1998 and in the Registration Statement on Form S-1
(Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 14, 1999,
relating to the financial statements of RGM Liquid Waste Removal Corporation and
Affiliates, which appears in the Annual Report on Form 10-K of EarthCare Company
for the year ended December 31, 1998 and in the Registration Statement on Form
S-1 (Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 15, 1999,
relating to the financial statements of Eldredge Wastewater Management, Inc.,
which appears in the Annual Report on Form 10-K of EarthCare Company for the
year ended December 31, 1998 and in the Registration Statement on Form S-1
(Post-Effective Amendment No. 2) of EarthCare Company.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 8, 1999, relating
to the financial statements of Reifsneider
<PAGE> 2
Transportation Inc., which appears in the Registration Statement on Form S-1
(Post-Effective Amendment No. 2) of EarthCare Company.
We also consent to the reference to us under the heading "Independent
Public Accountants" in this Registration Statement on Form S-8.
PricewaterhouseCoopers LLP
August 20, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of the following reports;
EarthCare Company dated April 2, 1998 (except for the fourth paragraph of
Note 1 as to which the date is June 29, 1998)
Andrews Environmental Services, Inc. dated June 18, 1998
Ferrero Wastewater Management, Inc. dated March 20, 1998
A Rapid Rooter Sewer & Drain Service, Inc. dated May 8, 1998
Seagraves, Inc. (d.b.a. Brownie Environmental Services) and Grease-Tec,
Inc. dated May 14, 1998
RGM Waste Removal Corporation and Affiliates dated July 10, 1998
Eldredge Wastewater Management, Inc. dated June 19, 1998
included in EarthCare Company's Form 10-K for the year ended December 31, 1998.
Arthur Andersen LLP
Atlanta, Georgia
August 20, 1999
