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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
AMENDMENT #1
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
Equity Corporation International
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share, including preferred share purchase
rights associated with the Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
294644 10 9
-----------------------------------
(CUSIP Number)
James M. Shelger, Service Corporation International, 1929 Allen Parkway,
Houston, Texas 77019
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
May 2, 1996
-----------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement /X/. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 294644 10 9 PAGE 2 OF 17 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Investment Capital Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America, State of Texas
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 5,181,499
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
157,000
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 5,181,499
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
157,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,338,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 294644 10 9 PAGE 3 OF 17 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SCI Capital Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America, State of Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 5,181,499
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
157,000
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 5,181,499
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
157,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,338,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 294644 10 9 PAGE 4 OF 17 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SCI Special, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America, State of Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 5,181,499
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
157,000
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 5,181,499
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
157,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,338,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 294644 10 9 PAGE 5 OF 17 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Service Corporation International
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /X/
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America, State of Texas
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 5,181,499
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
157,000
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 5,181,499
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
157,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,338,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 6
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, par value $.01 per share,
including preferred share purchase rights associated with the common stock (the
"Common Stock"), of Equity Corporation International, a Delaware corporation
(the "Issuer"). The address of the principal executive offices of the Issuer
is 415 South First Street, Suite 210, Lufkin, Texas 75901.
ITEM 2. IDENTITY AND BACKGROUND
(a) This statement is being jointly filed by Investment Capital
Corporation ("ICC"), SCI Capital Corporation ("SCI Capital"), SCI Special, Inc.
("SCI Special") and Service Corporation International ("SCI"). ICC, SCI
Capital, SCI Special and SCI are collectively referred to herein as the
"Reporting Persons". SCI owns all of the capital stock of SCI Special; SCI
Special owns all of the capital stock of SCI Capital; and SCI Capital owns all
of the capital stock of ICC. All shares of Common Stock of the Issuer
indicated as beneficially owned by the Reporting Persons are owned of record by
ICC.
(b) The address of the principal business and the principal office
of all Reporting Persons is 1929 Allen Parkway, Houston, Texas 77019. The
names, business addresses, principal occupations and citizenship of the
executive officers and directors of the Reporting Persons, as well as the name,
principal business and address of the corporation or organization in which such
occupation is conducted, are set forth in Schedule 1 hereto, which is
incorporated herein by reference.
(c) The principal business of each of the Reporting Persons is
providing death care services.
(d) During the last five years, neither the Reporting Persons nor,
to the best of the Reporting Persons' knowledge, any of the executive officers
or directors identified in Schedule 1 have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) Except as set forth below, during the last five years, neither
the Reporting Persons nor, to the best of the Reporting Persons' knowledge, any
of the executive officers or directors identified in Schedule 1 have been a
party to a civil proceeding resulting in, or subjecting him to, a judgment,
decree or final order enjoining violation of, or prohibiting or mandating
activities subject to, United States federal or state securities laws or
finding any violation with respect to such laws. However, on September 15,
1995, the Securities and Exchange Commission ("SEC") ordered the institution of
administrative proceedings involving the disclosure by SCI relating to its
change of accountants in its Current Report on Form 8-K, as amended, filed in
April 1993. Simultaneously with the institution of such proceedings, SCI,
without admitting or denying the SEC's facts, conclusions or findings,
consented to the entry of Cease and Desist Order by the SEC ordering SCI not to
violate the provisions of Section 13(a) of the Securities Exchange Act of 1934
and Rules 12b-20 and 13a-11 thereunder.
Page 6 of 17 Pages
<PAGE> 7
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On February 9, 1996, the Reporting Persons filed Schedule 13G
reporting beneficial ownership of 3,895,240 shares of Common Stock,
representing 39.4% of the then outstanding shares of Common Stock. All said
shares of Common Stock were held of record by ICC.
Pursuant to a Stock Purchase Agreement dated March 26, 1996 (the
"Stock Purchase Agreement"), SCI agreed to purchase 1,443,259 shares of Common
Stock from Robert W. Loftis and certain other holders of Common Stock
(collectively, the "Shareholders"). Pursuant to an Assignment and Assumption
Agreement dated May 1, 1996, SCI assigned its rights to purchase shares of
Common Stock pursuant to the Stock Purchase Agreement to ICC.
On May 2, 1996, ICC acquired 1,443,259 shares of Common Stock from the
Shareholders pursuant to the terms of the Stock Purchase Agreement for a
purchase price of $25.43 per share. The aggregate purchase price paid by ICC
to the Shareholders was $36,702,076.37 in immediately available funds.
Pursuant to the Service Corporation International ECI Stock Option Plan
(the "Plan"), the Compensation Committee of the Board of Directors of SCI may
grant to certain employees of SCI, or its subsidiaries, the option to purchase
shares of Common Stock. The aggregate number of shares which may be issued upon
exercise of options granted pursuant to the Plan may not exceed 509,000 shares
of Common Stock. Pursuant to the terms of the Plan, options have been granted to
purchase all 509,000 shares of Common Stock thereunder. As of the date hereof,
options have been exercised to purchase 36,000 shares of Common Stock under the
Plan; options to purchase the remaining 473,000 shares have not yet been
exercised. Of such unexercised options, options to purchase 157,000 shares of
Common Stock are currently exercisable, and options to purchase 316,000 shares
of Common Stock are not exercisable within the next sixty (60) days.
ITEM 4. PURPOSE OF TRANSACTION
The shares of Common Stock were acquired by ICC for purposes of
investment. Furthermore, none of the Reporting Persons has plans or proposals
which relate to or would result in any of the items described in Schedule 13D,
Item 4, paragraphs (a) through (j).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Based on the Issuer's Prospectus dated April 25, 1996, the
Reporting Persons have determined that there were 12,789,507 shares of
Common Stock outstanding following completion of an offering of Common Stock by
the Issuer covered by such Prospectus. As of May 2, 1996, the Reporting Persons
were the beneficial owners of 5,338,499 shares of Common Stock of the Issuer,
which represented 41.7% of the outstanding shares of Common Stock.
(b) Except as noted in the following sentence, each Reporting
Person has the sole power to (i) vote or direct the vote of the shares of
Common Stock and (ii) dispose or direct the disposition of the shares of
Common Stock. With respect to options to purchase 157,000 shares of Common
Stock currently exercisable under the Plan, each Reporting Person shares
beneficial ownership of such shares with the optionees under the Plan.
The names and titles of each optionee are included in the ECI Stock
Option Plan, attached hereto as Exhibit C. Each optionee is an employee of SCI
or a subsidiary thereof, and the business address for each optionee is 1929
Allen Parkway, Houston, Texas, 77019. Each optionee is a citizen of the United
States. During the last five years, to the Reporting Persons' knowledge, none
of the optionees have been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors). During the last five years, to the
Reporting Persons' knowledge, none of the optionees have been a party to a civil
proceeding resulting in, or subjecting him to, a judgment, decree or final
order enjoining violation of, or prohibiting or mandating activities subject to,
United States federal or state securities laws or finding any violation with
respect to such laws.
(c) As set forth under Item 3, on May 2, 1996, ICC acquired
1,443,259 shares of Common Stock pursuant to the Stock Purchase Agreement.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale
of, the shares of Common Stock.
(e) Not applicable.
Page 7 of 17 Pages
<PAGE> 8
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
See Item 3 for a discussion of (i) the Stock Purchase Agreement between
ICC (as the assignee of SCI) and the Shareholders, and (ii) the ECI Stock
Option Plan.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A Agreement Regarding Joint Filing of Schedule 13D
Exhibit B Stock Purchase Agreement
Exhibit C ECI Stock Option Plan
Page 8 of 17 Pages
<PAGE> 9
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
May 13, 1996 INVESTMENT CAPITAL CORPORATION
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SCI CAPITAL CORPORATION
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SCI SPECIAL, INC.
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SERVICE CORPORATION INTERNATIONAL
By: /s/ James M. Shelger
------------------------------------
Name: James M. Shelger
Title: Senior Vice President,
General Counsel and Secretary
Page 9 of 17 Pages
<PAGE> 10
SCHEDULE 1
Page 10 of 17 Pages
<PAGE> 11
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF
INVESTMENT CAPITAL CORPORATION
Listed below are the directors and executive officers of Investment
Capital Corporation. Each director and executive officer is a citizen of the
United States. The business address for each director and executive officer is
1929 Allen Parkway, Houston, Texas 77019.
NAME AND TITLE WITH PRINCIPAL OCCUPATION
INVESTMENT CAPITAL CORPORATION AND EMPLOYER
- ------------------------------ --------------------
T. Craig Benson Vice President/Operations
President and Director Service Corporation International
Rosanne Caton Director/Corporation Finance
Vice President SCI Management Corporation
Suzanne D. Mailes Legal Assistant
Secretary SCI Management Corporation
Judith M. Marshall Legal Assistant
Assistant Secretary SCI Management Corporation
John H. Lohman, Jr. Director/Taxation
Treasurer SCI Management Corporation
George R. Champagne Senior Vice President/
Director Chief Financial Officer
Service Corporation International
Wesley T. McRae Managing Director/
Director Financial Reporting
SCI Management Corporation
Page 11 of 17 Pages
<PAGE> 12
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF
SCI CAPITAL CORPORATION
Listed below are the directors and executive officers of SCI Capital
Corporation. Each director and executive officer is a citizen of the United
States.
<TABLE>
<CAPTION>
Name, Title with
SCI Capital Corporation Principal Occupation,
and Business Address Employer and Employer's Address
----------------------- -------------------------------
<S> <C>
David J. Anderson Regional President/Southern California
President and Director SCI California Funeral Services, Inc.
10621 Victory Blvd. 1929 Allen Parkway
North Hollywood, California Houston, Texas 77019
91606
Richard Jungas Area Manager
Vice President and Director Pierce Brothers
11500 Arlington Avenue 1929 Allen Parkway
Riverside, California 92505 Houston, Texas 77019
Olen Rowe Area Manager
Secretary and Director Mt. View Cemetery of San Bernardino
570 East Highland Ave. 1929 Allen Parkway
San Bernardino, California Houston, Texas 77019
92404
John M. Lohman, Jr. Director/Taxation
Treasurer SCI Management Corporation
1929 Allen Parkway 1929 Allen Parkway
Houston, Texas 77019 Houston, Texas 77019
</TABLE>
Page 12 of 17 Pages
<PAGE> 13
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF
SCI SPECIAL, INC.
Listed below are the directors and executive officers of SCI Special,
Inc. Each director and executive officer is a citizen of the United States. The
business address for each director and executive officer is 1929 Allen Parkway,
Houston, Texas 77019.
<TABLE>
<CAPTION>
NAME AND TITLE WITH PRINCIPAL OCCUPATION
SCI SPECIAL, INC. AND EMPLOYER
- ------------------- --------------------
<S> <C>
Brian A. Mueller Managing Director/Corporate Development
President and Director SCI Management Corporation
Curtis G. Briggs Senior Attorney
Vice President SCI Management Corporation
Suzanne D. Mailes Legal Assistant
Secretary SCI Management Corporation
Judith M. Marshall Legal Assistant
Assistant Secretary SCI Management Corporation
John H. Lohman, Jr. Director/Taxation
Treasurer SCI Management Corporation
Jeffrey A. Spillane Managing Director/Operations Analysis
Director SCI Management Corporation
Wesley T. McRae Managing Director/Financial Reporting
Director SCI Management Corporation
</TABLE>
Page 13 of 17 Pages
<PAGE> 14
BOARD OF DIRECTORS OF
SERVICE CORPORATION INTERNATIONAL
Each of the following directors is a citizen of the United States of America.
<TABLE>
<CAPTION>
Name and Address Occupation
---------------- ----------
<S> <C>
Anthony L. Coelho Chairman and Chief Executive
1325 Avenue of the Americas Officer of Coelho Associates, LLC
26th Floor (investment consulting and brokerage),
New York, NY 10019 and Chairman and Chief Executive Officer
of ETC (training and communication firm)
Douglas M. Conway Retired
HCR4 Anchor Point Road
Crosslake, NM 56442
Jack Finkelstein Personal and family trust investments
Suite 635 West
4635 Southwest Freeway
Houston, TX 77027
A. J. Foyt, Jr. President
6415 Toledo A. J. Foyt Enterprises, Inc.
Houston, TX 77008 (designer, manufacturer and exhibitor of high
speed engines, racing vehicles and marketing of
automotive vehicles)
James J. Gavin, Jr. Retired
1616 Thorntree Lane
Winnetka, IL 60093
James H. Greer Chairman
3025 Maxroy Shelton W. Greer Co., Inc. (engineering,
Houston, TX 77008 manufacturing, fabrication and installation of
building speciality products)
L. William Heiligbrodt President and Chief Operating Officer of
1929 Allen Parkway SCI
Houston, TX 77019
</TABLE>
Page 14 of 17 Pages
<PAGE> 15
<TABLE>
<CAPTION>
Name and Address Occupation
---------------- ----------
<S> <C>
B. D. Hunter Chairman of the Board and Chief Executive Officer
14323 South Outer 40 Huntco Inc. (intermediate steel processor)
Suite 6700 North
Chesterfield, MO 63017
Chairman of the Board
John W. Mecom, Jr. The John W. Mecom Company
4544 Post Oak Place Dr. (personal and family investments)
Suite 270
Houston, TX 77027
Chairman, President and Chief
Clifton H. Morris, Jr. Executive Officer
200 Bailey Avenue AmeriCredit Corp. (financing of
Ft. Worth, TX 76107 automotive vehicles)
Attorney
E. H. Thornton, Jr. Thornton & Burnett
1775 St. James Place (attorneys at law)
Suite 120
Houston, TX 77056
Chairman of the Board and Chief Executive Officer
Robert L. Waltrip of SCI
1929 Allen Parkway
Houston, TX 77019
Executive Vice President Operations of SCI
W. Blair Waltrip
1929 Allen Parkway
Houston, TX 77019
Henry Gardiner Symonds
Edward E. Williams Professor and Director of the
13231 Champion Forest Dr. Entrepreneurship Program at the Jesse H. Jones
Suite 110 Graduate School of Administration at Rice
Houston, TX 77069 University
Managing Director of First Texas Venture Capital
(investment company)
</TABLE>
Page 15 of 17 Pages
<PAGE> 16
EXECUTIVE OFFICERS OF
SERVICE CORPORATION INTERNATIONAL
The business address for each of the Executive Officers is 1929 Allen Parkway,
Houston, Texas 77019 and each of the Executive Officers is a citizen of the
United States of America. The occupation of each Executive Officer is being an
officer of SCI with the title set forth below.
Robert L. Waltrip
Chairman of the Board
and Chief Executive Officer
L. William Heiligbrodt
President and Chief Operating
Officer
W. Blair Waltrip
Executive Vice President Operations
John W. Morrow, Jr.
Executive Vice President
Corporate Development
Jerald L. Pullins
Executive Vice President
European Operations
George R. Champagne
Senior Vice President
and Chief Financial Officer
Glenn G. McMillen
Senior Vice President
Operations
Richard T. Sells
Senior Vice President
Prearranged Sales
James M. Shelger
Senior Vice President
General Counsel and Secretary
Jack L. Stoner
Senior Vice President
Administration
Page 16 of 17 Pages
<PAGE> 17
Henry M. Nelly, III
President of
Provident Services, Inc.
a subsidiary of SCI
T. Craig Benson
Vice President Operations of SCI
President of Investment
Capital Corporation
a subsidiary of SCI
Gregory L. Cauthen
Vice President
Treasurer
W. Mark Hamilton
Vice President/Finance
European Operations
Lowell A. Kirkpatrick, Jr.
Vice President
Corporate Development
Vincent L. Visosky
Vice President
Operational Controller
Page 17 of 17 Pages
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBITS
- ------ --------------------------
<S> <C>
A Agreement Regarding Joint Filing of Schedule 13D
B Stock Purchase Agreement
C ECI Stock Option Plan
</TABLE>
<PAGE> 1
EXHIBIT A
AGREEMENT REGARDING JOINT FILING OF SCHEDULE 13D
This will evidence our agreement, in accordance with Rule 13d-1(f)
promulgated under the Securities Exchange Act of 1934, as amended, that the
attached statement on Schedule 13G is filed on behalf of the undersigned.
May 13, 1996 INVESTMENT CAPITAL CORPORATION
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SCI CAPITAL CORPORATION
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SCI SPECIAL, INC.
By: /s/ John H. Lohman, Jr.
------------------------------------
Name: John H. Lohman, Jr.
Title: Treasurer
SERVICE CORPORATION INTERNATIONAL
By: /s/ James M. Shelger
------------------------------------
Name: James M. Shelger
Title: Senior Vice President,
General Counsel and Secretary
<PAGE> 1
EXHIBIT B
<PAGE> 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
March 26, 1996, by and among Service Corporation International, a Texas
corporation (the "Purchaser"), Robert W. Loftis ("Loftis"), individually and on
behalf of the holders of Stock (as defined below) set forth on Exhibit A
attached hereto, and the undersigned holders of Stock set forth on Exhibit B
attached hereto (Loftis and all such holders set forth on Exhibit A and Exhibit
B are collectively referred to herein as the "Shareholders").
RECITALS
WHEREAS, the Shareholders collectively hold 1,443,259 shares of the
issued and outstanding common stock, par value $.01 per share, of Equity
Corporation International, a Delaware corporation (the "Company"), and each
Shareholder individually holds such number of shares as set forth in Exhibit A,
as amended by Loftis in accordance with this Agreement, and Exhibit B
respectively (collectively, the "Stock");
WHEREAS, the Company is currently in the process of offering
approximately 2,500,000 shares of its common stock, par value $.01 per share,
under a registration statement to be filed under the Securities Act of 1933, as
amended (the "Offering"); and
WHEREAS, the Purchaser wishes to buy the Stock from the Shareholders,
and the Shareholders wish to sell the Stock to the Purchaser, such sale to be
effective immediately following the consummation of the Offering, subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the respective representations,
warranties and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
SALE OF STOCK; CLOSING
1.1 SALE AND PURCHASE OF STOCK. At the Closing (as defined below)
and subject to the terms and conditions of this Agreement, the Shareholders
shall sell to the Purchaser, and the Purchaser shall buy from the Shareholders,
the Stock for a per share purchase price equal to the per share proceeds from
the Offering, net of any underwriting discounts (the "Per Share Purchase
Price"). The purchase price payable to each respective Shareholder shall be
determined by multiplying the shares of Stock held by such Shareholder by the
Per Share Purchase Price (the "Purchase Price"). The Purchase Price shall be
paid in full at Closing by the delivery of a check or immediately available
funds to each Shareholder in the amount of the Purchase Price.
<PAGE> 3
1.2 CLOSING. The closing of the purchase and sale (the "Closing")
provided for in this Agreement shall take place at the offices of Liddell,
Sapp, Zivley, Hill and LaBoon, L.L.P., 3400 Texas Commerce Tower, 600 Travis,
Houston, Texas, 77002, or at such other place and time as the parties shall
mutually agree. The date on which the Closing shall occur shall be referred to
herein as the "Effective Date".
1.3 REGISTRATION AGREEMENT. At the Closing, Loftis hereby agrees
to assign and cause to be assigned to the Purchaser all rights of Loftis and
Kanawha, L.L.C. under the Stock Registration Agreement dated February 1, 1994,
as amended (the "Registration Agreement"), between the Company and certain
stockholders of the Company, subject to any required consent by the Company.
At the Closing, Loftis agrees to execute and cause to be executed reasonable
documentation effecting such assignment as requested by the Purchaser.
1.4 CLOSING DELIVERIES. At the Closing, Loftis and the
undersigned holders of Stock set forth on Exhibit B hereby agree to deliver to
the Purchaser certificates evidencing the Stock, duly endorsed for transfer in
a manner satisfactory to Purchaser, and such other documentation as required by
this Agreement, and the Purchaser shall deliver to the Shareholders immediately
available funds in the amount set forth in Section 1.1 above.
ARTICLE II
REPRESENTATIONS
2.1 SHAREHOLDER REPRESENTATIONS. Each Shareholder jointly and
severally represents, warrants and covenants to the Purchaser that each of the
following matters set forth in this Section 2.1 are true and correct as of the
date hereof and shall be true and correct as of the date of Closing:
(a) AUTHORITY. All action on the part of the Shareholder
necessary for the authorization, execution, delivery and performance of this
Agreement has been taken, and this Agreement has been duly authorized, executed
and delivered by or on behalf of the Shareholder. Loftis is duly authorized to
execute and deliver this Agreement and consummate the transactions contemplated
hereby on behalf of each other Shareholder set forth on Exhibit A. This
Agreement, when executed and delivered by or on behalf of each Shareholder,
shall constitute a valid and binding obligation of the Shareholder, enforceable
against the Shareholder in accordance with its terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights generally, or (ii) general
principles of equity (regardless of whether such enforceability is considered
in any proceeding in equity or at law).
(b) TITLE. The Shareholder is the record and beneficial
holder of outstanding shares of Stock, in the amount set forth next to the
Shareholder's name on Exhibit A attached hereto. The Shareholder holds all
such shares of Stock free and clear of any liens, liabilities, obligations,
claims, pledges, security interests, conditional sale agreements, charges,
restrictions or encumbrances of any kind ("Liens"). At Closing, the
Shareholder will transfer good title to such shares of Stock to the Purchaser
free and clear of any Liens. Any stock transfer taxes incurred with respect to
the transactions contemplated herein will be borne by the Shareholder.
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<PAGE> 4
(c) CONSENTS. Other than any consent required to the
assignment of the Registration Agreement and under the Stockholders' Agreement
dated as of the 1st day of February, 1994 ("Buy-Sell Agreement") among Loftis
and certain other shareholders of the Company, no consent, approval or
authorization of, or designation, declaration or filing with, any governmental
authority or third party on the part of the Shareholder is required in
connection with the valid execution and delivery of this Agreement and the
transactions contemplated hereby.
(d) NO VIOLATION. Neither the execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby, nor
the compliance by or on behalf of the Shareholder with the provisions hereof
will (i) conflict with the Articles of Incorporation or Bylaws of the Company;
(ii) be in conflict with, result in a violation, breach or termination of, or
constitute a default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
contract, agreement, commitment, bond, mortgage, indenture, license, pledge
agreement or other instrument to which the Shareholder or Company may be bound;
(iii) violate (with or without due notice of lapse of time or both) or conflict
with any provision of any law, statute, ordinance, rule, regulation or other
legal requirement binding upon the Shareholder or the Company; or (iv) result
in, or require, the creation or imposition of, any Lien upon or with respect to
the Stock.
(e) LITIGATION. There are no actions, suits, claims or
other proceedings pending or, to the knowledge of the Shareholder, threatened
against the Shareholder, or any affiliate thereof, that would either (i)
adversely affect the Stock or (ii) impair the Shareholder's ability to
consummate the transactions contemplated by this Agreement.
2.2 PURCHASER'S REPRESENTATIONS. The Purchaser hereby represents,
warrants and covenants to each Shareholder that each of the following matters
set forth in this Section 2.2 are true and correct as of the date hereof and
shall be true and correct as of the date of Closing:
(a) AUTHORITY. All action on the part of Purchaser
necessary for the authorization, execution, delivery and performance of this
Agreement has been taken, and this Agreement has been duly authorized, executed
and delivered by the Purchaser. This Agreement, when executed and delivered by
the Purchaser, shall constitute a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally, or (ii) general principles of equity (regardless
of whether such enforceability is considered in any proceeding in equity or at
law).
(b) NO OTHER REPRESENTATIONS. The Purchaser is not
making any representations or warranties, express or implied, of any nature
whatsoever except as specifically set forth in this Section 2.2.
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<PAGE> 5
ARTICLE III
ADDITIONAL AGREEMENTS AND COVENANTS
3.1 AMENDMENT TO EXHIBIT A. The Purchaser agrees that Loftis may
amend Exhibit A prior to the Closing subject to the following: (i) the
aggregate number of shares of Stock on Exhibit A shall not change; (ii) the
aggregate number of shares of Stock to be sold hereunder by holders other than
Loftis may not increase; (iii) Loftis shall execute an amendment to this
Agreement on behalf of any new person or entity listed on Exhibit A naming such
person or entity as an additional party to this Agreement and as a Shareholder
for purposes of this Agreement; and (iv) Loftis shall remain fully responsible
for the obligations of all Shareholders under this Agreement.
3.2 RIGHT OF FIRST REFUSAL.
(a) If during the period commencing with the Effective
Date and ending ten (10) years after the Effective Date, Loftis or any Loftis
Affiliate (defined below) desires to sell, transfer or otherwise dispose of,
directly or indirectly, an interest in any funeral, cemetery, crematory or
related business ("Funeral Related Business") now held by Loftis or a Loftis
Affiliate (or acquired by Loftis or a Loftis Affiliate after the Effective
Date), then Loftis or the Loftis Affiliate shall first offer to sell such
Funeral Related Business to the Purchaser ("Offer"). The Offer shall be made
by an irrevocable written offer to sell such Funeral Related Business for the
same price and upon the same terms as Loftis or the Loftis Affiliate proposes
to transfer such business. The Offer shall also contain a complete description
of the transaction in which Loftis of the Loftis Affiliate proposes to transfer
the Funeral Related Business, including the name of the proposed transferee,
the consideration and the other terms of the proposed transfer. The Purchaser
shall have 60 days after actual receipt of such Offer within which to advise
Loftis or the Loftis Affiliate whether or not the Purchaser will accept the
Offer and elect to exercise its right of first refusal to purchase the Funeral
Related Business ("Right of First Refusal").
(b) If the Purchaser elects to exercise its Right of
First Refusal pursuant to the terms of this Agreement, the closing of such
transfer shall take place at the corporate offices of the Purchaser, and shall
be conducted in accordance with the terms and conditions set forth in the
Offer.
(c) If the Purchaser does not elect to exercise its Right
of First Refusal pursuant to the terms of this Agreement, Loftis or the Loftis
Affiliate will then have 120 days to close the proposed transfer of the
respective Funeral Related Business on the same terms and conditions as set
forth in the Offer. If the proposed transfer has not closed within such 120
day period, then any subsequent transfer shall be subject to Purchaser's Right
of First Refusal.
(d) Purchaser's Right of First Refusal pursuant to
Section 3.2 of this Agreement is freely assignable in whole or in part without
the prior consent of Loftis or any Loftis Affiliate.
(e) As used in this Agreement, the term "Loftis
Affiliate" shall be defined broadly to include (i) any entity controlled
directly or indirectly by Loftis, (ii) any spouse, brother, sister, descendant
or other member of the extended family of Loftis (each a "Related
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<PAGE> 6
Person") or entity controlled directly or indirectly by any Related Person, or
(iii) any entity for which Loftis or any Related Person serves as an employee,
officer or director.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER TO CLOSE. The
obligation of the Purchaser to close the transactions contemplated herein is
subject to the reasonable satisfaction or waiver of the following conditions
prior to Closing:
(a) All representations of the Shareholders shall be true
and correct as of the date hereof and at and as of the Closing, and the
Shareholders shall have complied with all covenants and agreements herein;
(b) The Purchaser shall have received written
confirmation from the Company that Loftis has delivered to the Company
satisfactory documentation with respect to pending matters;
(c) The Purchaser and its affiliates shall not own more
than 49 percent of the issued and outstanding capital stock of the Company
immediately following consummation of the transactions contemplated herein;
(d) All necessary consents shall have been obtained under
the Buy-Sell Agreement; and
(e) The Offering shall have been consummated.
4.2 CONDITIONS TO THE OBLIGATIONS OF THE SHAREHOLDERS TO CLOSE.
The obligation of the Shareholders to close the transactions contemplated
herein is subject to the reasonable satisfaction or waiver of the following
condition prior to Closing:
(a) All representations of the Purchaser shall be true
and correct as of the date hereof and at and as of the Closing; and
(b) All necessary consents shall have been obtained under
the Buy-Sell Agreement.
4.3 DATE OF CLOSING. Provided that the conditions set forth in
Sections 4.1(a), 4.1(b), 4.1(c) and 4.1(d) of this Agreement are satisfied, the
Closing shall occur immediately following the Offering Date (as defined below).
If the conditions set forth in Sections 4.1(a), 4.1(b), 4.1(c) and 4.1(d) of
this Agreement are not satisfied by the Offering Date, the Closing shall occur
immediately following the satisfaction of such conditions, subject to the right
of the Purchaser to waive any such condition and further subject to any
termination of this Agreement pursuant to Article V hereof. For purposes of
this Section 4.3, the term "Offering Date" shall be the either (i) the
consummation date of the purchase by the underwriter or underwriters of the
Company's shares of common stock offered pursuant to the Offering, or (ii) if
the Offering is underwritten on a "best efforts" basis, the date on which the
registration statement filed
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<PAGE> 7
pursuant to the Securities Act of 1933, as amended, in connection with the
Offering is declared effective by the Securities and Exchange Commission.
ARTICLE V
TERMINATION
5.1 TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to Closing:
(a) by the mutual written consent of the parties hereto;
(b) by the Purchaser if any of the conditions to Closing
set forth in Section 4.1 above shall not have been complied with or performed
at the time required for compliance or performance and such noncompliance or
nonperformance shall not have been waived by the Purchaser;
(c) by the Shareholders if the condition to Closing set
forth in Section 4.2 above shall not have been complied with or performed at
the time required for compliance or performance and such noncompliance or
nonperformance shall not have been waived by the Shareholders; and
(d) without any further action on behalf of the parties
hereto if the Closing has not occurred on or before June 30, 1996.
5.2 EFFECT OF TERMINATION. The termination of this Agreement as
provided in Section 5.1 shall not relieve any party of any liability for any
breach of any representation, warranty, covenant or agreement hereunder and
such breaching party shall be fully liable for any and all damages sustained or
incurred by the other parties hereto.
ARTICLE VI
ADDITIONAL AGREEMENTS AND COVENANTS AFTER CLOSING
6.1 INDEMNIFICATION.
(a) Except as otherwise limited herein, each Shareholder
jointly and severally agrees to and shall defend, indemnify and hold harmless
the Purchaser, and each of the Purchaser's subsidiaries, stockholders,
partners, affiliates, officers, directors, employees, agents, successors,
assigns, heirs and legal and personal representatives (collectively, the
"Purchaser Indemnified Persons"), from and against each and every loss, damage,
injury, claim, liability and award (collectively, the "Losses") paid, imposed
on or incurred by the Purchaser Indemnified Persons relating to or arising out
of any breach of a representation, warranty or covenant of any Shareholder
contained in this Agreement. However, with the exception of Loftis, the
obligations of each Shareholder pursuant to this Section 6.1(a) shall be
limited to the Purchase Price actually received by such Shareholder pursuant to
this Agreement. The obligations of Loftis pursuant to this Section 6.1(a)
shall be limited to the aggregate Purchase Price actually received by Loftis
and all other Shareholders pursuant to this Agreement.
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<PAGE> 8
(b) The Purchaser agrees to and shall defend, indemnify
and hold harmless each Shareholder from and against each and every Loss paid,
imposed on or incurred by such Shareholder relating to or arising out of any
breach of a representation, warranty or covenant of the Purchaser contained in
this Agreement.
(c) If any proceeding shall be brought or asserted under
this Section against the indemnified party in respect of which indemnity may be
sought under this Section, the indemnified party shall give prompt notice of
such proceeding to the indemnifying party who shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party. The indemnifying party may, without the indemnified party's prior
written consent, settle or compromise any such proceeding or consent to the
entry of any judgment with respect to such proceeding that requires solely the
payment of money damages by the indemnifying party and that includes as an
unconditional term thereof the release by the claimant or the plaintiff of the
indemnified party from all liability in respect of such proceeding.
(d) The representations, warranties and covenants
contained in this Agreement shall survive for a period of four (4) years from
the Effective Date, and with respect to a breach of such representations,
warranties or covenants, the indemnifying party shall have no liability under
this Section unless notice of the claim for indemnity shall have been given
within four (4) years after the Effective Date.
6.2 EXPENSES; BROKERS. Each party to this Agreement shall bear
its respective expenses incurred in connection with the preparation, execution
and performance of this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel and
accountants. In the case of termination of this Agreement, the obligation of
each party to pay its own expenses shall be subject to any rights of such party
arising from a breach of this Agreement by another party.
6.3 CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS. Without the express
written consent of the other party hereto, each party agrees to maintain in
confidence and not disclose to any other person any information with respect to
the transaction contemplated herein or the information delivered in connection
with the proposed due diligence investigation other than disclosures to those
professionals and advisors who have a need to know and other than as required
by law. Any public announcement or similar publicity with respect to this
Agreement or the transactions contemplated hereby shall be issued, if at all,
at such time and in such manner as the Purchaser and Loftis shall mutually
determine, other than as required by law.
ARTICLE VII
MISCELLANEOUS
7.1 FURTHER ASSURANCES. The parties hereto agree to use their
reasonable good faith efforts to satisfy all conditions necessary to consummate
the transactions provided for herein. In addition, the parties agree to use
their reasonable good faith efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
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<PAGE> 9
7.2 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in any federal court of
the Southern District of Texas or any state court located in Harris County,
State of Texas, and each party agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim that it
is not subject personally to the jurisdiction of such court, that the action,
suit or proceeding is brought in an inconvenient forum, that the venue of the
action, suit or proceeding is improper or that this Agreement, the agreements
contemplated hereby or the subject matter hereof or thereof may not be enforced
in or by such court. Each party further irrevocably submits to the
jurisdiction of any such court in any such action, suit or proceeding. Any and
all service of process and any other notice in any such action, suit or
proceeding shall be effective against any party if given personally or by
registered or certified mail, return receipt requested.
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the transactions contemplated
hereby and supersedes all prior agreements, proposals or representations,
arrangements or understandings, written or oral, with respect thereto.
7.4 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
Shareholders and the Purchaser or, in the case of a waiver, by the Shareholders
or the Purchaser, as the case may be, waiving compliance.
7.5 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Texas applicable to agreements made
and to be performed entirely within such State.
7.6 BINDING EFFECT; NO ASSIGNMENT. Except as otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and legal representatives. Neither
party may assign this Agreement without the express written consent of the
other; provided, however, that (i) Purchaser may assign its Right of First
Refusal pursuant to Section 3.2 of this Agreement to any person or entity
without the prior consent of any party hereto; and (ii) Purchaser may assign
all rights and obligations hereunder to any affiliate of Purchaser without the
prior consent of any party hereto; in the event of an assignment under this
clause (ii), Purchaser will remain responsible for its obligations hereunder.
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<PAGE> 10
7.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.8 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when (i)
delivered personally, (ii) sent by telecopier (with receipt confirmed),
provided that a copy is mailed by registered or certified mail, return receipt
requested, or (iii) received by the addressee, if sent by Express Mail, Federal
Express or other express delivery service (receipt requested) or by registered
or certified mail, return receipt requested, in each case to the other party at
the following addresses and telecopier numbers (or to such other address or
telecopier number for a party as shall be specified by like notice; provided
that notices of a change of address or telecopier number shall be effective
only upon receipt thereof):
if to any Shareholder, to: if to the Purchaser, to:
Robert W. Loftis Service Corporation
8180 Glenfinnan Circle International
Ft. Myers, Florida 33912 1929 Allen Parkway
Houston, Texas 77219
Attn: George Champagne
with a copy to: with a copy to:
W. H. Kimbrough, Jr. Marcus A. Watts
Fortson, Bentley and Griffin Liddell, Sapp, Zivley, Hill
440 College Avenue North & LaBoon, L.L.P.
Athens, GA 30601 3500 Texas Commerce Tower
600 Travis
Houston, Texas 77002
7.9 ATTORNEYS' FEES. In the event any party hereto institutes a
proceeding against any other party hereto for a claim arising out of or to
enforce this Agreement, the parties agree that the judge or arbitrator in any
such proceeding shall be entitled to determine the extent to which any party
shall pay the reasonable attorneys' fees incurred by the other party in
connection with such Proceeding, which determination shall take into
consideration the outcome of such Proceeding and such other factors as the
judge may determine to be equitable in the circumstances.
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<PAGE> 11
7.10 SHAREHOLDER REPRESENTATIVE. Each Shareholder hereby
irrevocably appoints Loftis as the "Shareholder Representative", with full
power and authority to (i) resolve any and all issues of any nature whatsoever
arising in connection with this Agreement or the transactions contemplated by
this Agreement, and (ii) defend, compromise and settle, in his sole discretion,
all claims for indemnification made pursuant to this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
SERVICE CORPORATION INTERNATIONAL
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ROBERT W. LOFTIS, individually and on
behalf of the Shareholders set forth on
Exhibit A
---------------------------------------
ROBERT WAYNE LOFTIS CHARITABLE
REMAINDER UNITRUST #1
By:
-----------------------------------
As Trustee
ROBERT WAYNE LOFTIS CHARITABLE
REMAINDER UNITRUST #2
By:
-----------------------------------
As Trustee
TGKVF, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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<PAGE> 12
CINCINNATI BIBLE COLLEGE & SEMINARY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
NANCY LOFTIS MASSINGILLE CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
GARLAND THOMAS LOFTIS CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
DORENE LOFTIS CLINE CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
GEORGI SMITH WATSON CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
LINDA LOFTIS LAW CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
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<PAGE> 13
REBECCA LEAH LOFTIS CHARITABLE
REMAINDER UNITRUST
By:
-----------------------------------
As Trustee
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<PAGE> 14
<PAGE> 15
<PAGE> 1
EXHIBIT C
<PAGE> 2
SERVICE CORPORATION INTERNATIONAL
ECI STOCK OPTION PLAN
I
PURPOSE OF THE PLAN
The Service Corporation International ECI Stock Option Plan (the
"Plan"), is intended to provide a means whereby certain employees of Service
Corporation International, a Texas corporation (the "Company"), and its
subsidiaries may develop a sense of proprietorship and personal involvement in
the development and financial success of the Company's affiliate Equity
Corporation International ("ECI"), and to encourage them to remain with and
devote their best efforts to the business of the Company, thereby advancing
the interests of the Company and its stockholders. Accordingly, the Company will
grant to certain employees of the Company or its subsidiaries the option
("Option") to purchase shares of the $.01 par value common stock of ECI
("Stock"), as hereinafter set forth.
II
ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"). Members of the Committee shall not be
eligible, and shall not have been eligible, at any time within one year prior
to their appointment to the Committee, to participate in the Plan or in any
other stock plan of the Company or any of its affiliates, except the 1990 Stock
Plan for Non-Employee Directors or similar or successor plans. The Committee
has selected the employees of the Company or its subsidiaries listed on Exhibit
A to be granted Options for the number of shares of Stock set opposite their
respective names. The Committee is authorized to interpret the Plan, accelerate
the vesting or exercisability of all or any Options, and may from time to time
adopt such rules and regulations, consistent with the provisions of the Plan,
as it may deem advisable to carry out the Plan. All decisions made by the
Committee in selecting the employees to whom Options shall be granted, in
establishing the number of shares which may be issued under each Option, and in
construing the provisions of the Plan shall be final.
III
OPTION AGREEMENTS
Each Option shall be evidenced by an Option Agreement in the form
attached hereto as Exhibit B. Each Option and all rights granted thereunder
shall not be transferable other than by will or the laws of descent and
distribution, and shall be exercisable during the optionee's lifetime only by
the optionee.
<PAGE> 3
IV
ELIGIBILITY OF OPTIONEE
Options may be granted only to the employees listed on Exhibit A.
V
SHARES SUBJECT TO THE PLAN
The aggregate number of shares which may be issued under Options shall
not exceed 509,000 shares of Stock. Such shares shall consist of previously
issued shares owned by the Company. Should any Option hereunder expire prior to
its exercise in full, the remaining number of shares theretofore subject to
such Option may not again be subject to an Option granted under the Plan. The
aggregate number of shares which may be issued under the Plan may be adjusted
to reflect a change in the capitalization of ECI, such as a stock dividend or
stock split.
VI
OPTION PRICE
The purchase price of Stock issued under each Option shall be the
initial public offering price of the Common Stock of ECI pursuant to its
Registration Statement on Form S-1.
VII
TERM OF THE PLAN
The Plan shall be effective upon the date of its adoption by the Board
of Directors. Except with respect to Options then outstanding, if not sooner
terminated under the provisions of Paragraph IX, the Plan shall terminate upon
and no further options shall be granted after the expiration of ten years from
the effective date of the Options. The effective date of the Options shall be
the date the shares of ECI Common Stock are first offered to the public in
ECI's initial public offering.
VIII
RECAPITALIZATION OR REORGANIZATION
(a) The existence of the Plan and the Options granted hereunder shall
not affect or authorize any adjustment, recapitalization, reorganization or
other change in ECI's capital structure or its business, any merger or
consolidation of ECI, any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting Stock or the rights thereof, the
dissolution of liquidation of ECI or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding.
(b) The shares with respect to which Options may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Option theretofore granted, ECI shall effect a subdivision or
consolidation of shares of
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<PAGE> 4
Stock or the payment of a stock dividend on Stock without receipt of
consideration by ECI, the number of shares of Stock with respect to which such
Option may thereafter be exercised (i) in the event of an increase in the
number of outstanding shares shall be proportionately increased, and the
purchase price per share shall be proportionately reduced, and (ii) in the
event of a reduction in the number of outstanding shares shall be
proportionately reduced, and the purchase price per share shall be
proportionately increased.
(c) (i) If ECI recapitalizes or otherwise changes its capital structure,
thereafter upon any exercise of an Option theretofore granted the optionee
shall be entitled to purchase under such Option, in lieu of the number of
shares of Stock as to which such Option shall then be exercisable, the number
and class of shares of stock and securities to which the optionee would have
been entitled pursuant to the terms of such recapitalization if, immediately
prior to such recapitalization, the optionee had been the holder of record of
the number of shares of Stock as to which such Option is then exercisable.
(ii) Notwithstanding any other provision of the Plan to the contrary,
immediately upon a Change of Control (as defined in Section VIII(c)(iii) below)
or a Change of ECI Control (as defined in Section VIII(c)(iv) below) all Options
granted hereunder shall become exercisable to the full extent of the original
grant. From and after a Change of Control, Options shall remain exercisable for
the lesser of (x) the balance of their original term, and (y) six months and one
day after termination of an employee's employment, one year in the case of
termination of employment due to death, total and permanent disability or
retirement at age 65 or older.
(iii) For purposes of the Plan, "Change of Control" shall mean the
happening of any of the following events:
1. The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then outstanding shares of Common Stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change of
Control: (A)any acquisition directly from the Company (excluding an acquisition
by virtue of the exercise of a conversion privilege), (B) any acquisition by the
Company, (C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (D) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (A), (B) and (C) of
subsection (3) of this definition of "Change of Control" are satisfied; or
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<PAGE> 5
2. Individuals who, as of the effective date hereof, constitute the Board
of the Company (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board of the Company; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved by (A) a
vote of at least a majority of the directors then compromising the Incumbent
Board, or (B) a vote of at least a majority of the directors then comprising the
Executive Committee of the Board at a time when such committee was comprised of
at least five members and all members of such committee were either members of
the Incumbent Board or considered as being members of the Incumbent Board
pursuant to clause (A) of this subsection 2, shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A as promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
3. Approval by the shareholders of the Company of a reorganization, merger
or consolidation, in each case, unless, following such reorganization, merger
or consolidation, (A) more than 60% of, respectively, the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such organization,
merger or consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or consolidation,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding the Company, any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such reorganization, merger or consolidation and any Person
beneficially owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 20% or more of the outstanding Company
Common Stock or Outstanding Company Voting Securities, as the case may be),
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation or the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (C) at least a majority of the
members of the board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the Incumbent Board at
the time of the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
4. Approval by the shareholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or other disposition
<PAGE> 6
of all or substantially all of the assets of the Company, other than to a
corporation, with respect to which following such sale or other disposition, (I)
more than 60% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (II) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company or such corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly, 20% or more of
the Outstanding Company Common Stock or Outstanding Company Voting Securities,
as the case may be, beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors and (III) at
least a majority of the members of the board of directors of such corporation
were members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other disposition of
assets of the Company.
(iv) For purposes of the Plan, "Change of ECI Control" shall mean the
happening of any of the following events:
1. Any person or parties other than shareholders of ECI as of
the date prior to the date on which shares of ECI Common Stock are first
offered to the public in ECI's initial public offering becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, or securities of ECI representing 25% or more of the combined
voting power of ECI's then outstanding securities; or
2. Any person becomes, after the consummation of the aforesaid
initial public offering of ECI, the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of ECI
representing 50% or more of the combined voting power of ECI's then outstanding
securities; or
3. The stockholders of ECI approve a merger, consolidation, sale
or disposition of all or substantially all of ECI's assets or a plan of
liquidation.
(d) Except as hereinbefore expressly provided, the issuance by ECI of
shares of stock of any class or securities convertible into shares of stock of
any class, for cash, property, labor or services, upon direct sale, upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of ECI convertible into such shares or other securities,
and in any case whether or not for fair value, shall not
-5-
<PAGE> 7
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Stock subject to Options theretofore granted or the
purchase price per share.
IX
AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors shall have the right to alter or amend the Plan or
any part hereof from time to time; provided, that no change in any Option
theretofore granted may be made which would impair the rights of the
optionee without the consent of such optionee.
-6-
<PAGE> 8
EXHIBIT A
SERVICE CORPORATION INTERNATIONAL
EMPLOYEES ELIGIBLE FOR ECI OPTIONS
Robert L. Waltrip Chairman of the Board and
Chief Executive Officer
L. William Heiligbrodt President and
Chief Operating Officer
John W. Morrow, Jr. Executive Vice President
Corporate Development
W. Blair Waltrip Executive Vice President
Operations
Glenn G. McMillen Senior Vice President
Operations
Henry Nelly, III President-Provident Services, Inc.
Jerald L. Pullins Executive Vice President
European Operations
James M. Shelger Senior Vice President
General Counsel and Secretary
Jack L. Stoner Senior Vice President
Administration
T. Craig Benson Vice President
Operations
George R. Champagne Senior Vice President and
Chief Financial Officer
Richard T. Sells Senior Vice President
Prearranged Sales
Vincent Visosky Vice President
Operational Controller
David J. Anderson President/Southern California Region
SCI California Funeral Services, Inc.
J. Daniel Garrison President/Southern Division
SCI Georgia Funeral Services, Inc.
<PAGE> 9
EXHIBIT A
Paul J. Kuper President/Great Lakes Region
SCI Illinois Services, Inc.
Stephen M. Mack President/Eastern Division
SCI Funeral Services of New York, Inc.
William H. Truscott President/Central Division
SCI Texas Funeral Services, Inc.
Thomas E. Weaver, Jr. President/Western Division
SCI Colorado Funeral Services, Inc.
Lowell A. Kirkpatrick, Jr. Vice President
Corporate Development
William Mark Hamilton Vice President Finance
European Operations
2
