As filed with the Securities and Exchange Commission on June 12, 1997
Registration No. 33-98052
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
Post-Effective Amendment No. 2
to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY CORPORATION INTERNATIONAL
(Exact name of registrant as specified in its charter)
Delaware 75-2521142
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
415 South First Street
Suite 210
Lufkin, Texas 75901
(Address of Principal Executive Offices) (Zip Code)
EQUITY CORPORATION INTERNATIONAL
1994 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
W. Cardon Gerner
Senior Vice President
and Chief Financial Officer
415 South First Street
Suite 210
Lufkin, Texas 75901
(Name and address of agent for service)
(409) 631-8700
(Telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount to Offering Price Aggregate Amount of
Title of Securities to be Registered be Registered (1) Per Share Offering Price Registration Fee (2)
- ---------------------------------------------- ------------------ -------------------- ------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share(3) 1,350,000 Shares n.a. n.a. Previously paid
</TABLE>
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(1) This registration statement as originally filed with the Securities and
Exchange Commission on October 12, 1995 covered 900,000 shares of
Common Stock, par value $.01 per share ("Common Stock"). Pursuant to
Rule 416(b) under the Securities Act of 1933, as amended (the "Act"),
the number of shares of Common Stock covered by this registration
statement also includes 450,000 additional shares of Common Stock
represented by the dividend of .5 shares of Common Stock per issued and
outstanding share of Common Stock payable on October 2, 1996 to
stockholders of record on September 23, 1996. In addition, pursuant to
Rule 416(c) under the Act, this registration statement hereafter shall
cover an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) The initial filing fee of $7,177 was paid in connection with the
original filing of this registration statement. No additional filing
fee is required.
(3) Includes preferred share purchase rights associated with the Common
Stock. No separate fee is payable in respect of the registration of
such preferred share purchase rights.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Equity Corporation International (the "Company") incorporates herein by
reference the following documents as of their respective dates as filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997; and
(c) the descriptions of the Common Stock and associated preferred
share purchase rights contained in the Company's registration
statements on Form 8-A (File No. 1-13017) each filed with the
Commission on May 19, 1997 pursuant to Section 12(b) of the
Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, inter alia,
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
any such threatened, pending or completed action or suit if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
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<PAGE>
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its officers and directors against certain
liabilities for actions taken in their capacities as officers and directors,
including liabilities under the Securities Act of 1933.
The Company's Certificate of Incorporation and Bylaws permit the
directors and officers of the Company to be indemnified and permit the
advancement to them of expenses in connection with actual or threatened
proceedings and claims arising out of their status as such, to the fullest
extent permitted by the Delaware General Corporation Law. The Company has
entered into indemnification agreements with each of its directors and executive
officers that provide for indemnification and expense advancement to the fullest
extent permitted under the Delaware General Corporation Law. Such
indemnification agreements include related provisions intended to facilitate the
indemnities' receipt of such benefits, including certain provisions applicable
to constituent corporations in the event of certain mergers or acquisitions.
The Company's Certificate of Incorporation limits under certain
circumstances the liability of the Company's directors to the Company or its
stockholders to the fullest extent permitted by Delaware law. Specifically,
directors of the Company will not be personally liable for monetary damages for
breach of a director's fiduciary duty as a director, except for liability (i)
for a 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 Delaware General Corporation Law (relating to the declaration of dividends
and purchase or redemption of shares in violation of the Delaware General
Corporation Law) or (iv) for any transaction from which the director derived an
improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation.
4.2* Certificate of Designation of Series One Junior Participating
Preferred Stock.
4.3* Amended and Restated Bylaws.
4.4** Equity Corporation International Amended and Restated 1994
Long-Term Incentive Plan (amended as of October, 1996)
(incorporated by reference to Exhibit 10.10 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996).
4.5* Form of Employee Incentive Stock Option Agreement.
4.6* Form of Executive Non-Qualified Stock Option Agreement
4.7* Form of Executive Incentive Stock Option Agreement.
4.8* Form of Director Non-Qualified Stock Option Agreement.
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<PAGE>
4.9** Form of Employee Non-Qualified Stock Option Agreement
(incorporated by reference to Exhibit 10.12 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1995).
5.1* Opinion of Andrews & Kurth L.L.P., as to the legality of the
securities being registered.
23.1* Consent of Andrews & Kurth L.L.P. (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1* Power of Attorney (set forth on the signature page contained
in Part II of this Registration Statement).
----------
* Previously filed.
** Incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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 the 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 by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be
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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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
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 Lufkin, State of Texas, on the 12th day of June,
1997.
EQUITY CORPORATION INTERNATIONAL
By: /s/ W. Cardon Gerner
---------------------------
W. Cardon Gerner
Senior Vice President --
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C> <C>
* Chairman of the Board, President
------------------------ and Chief Executive Officer
James P. Hunter, III (Principal Executive Officer)
/s/ W. Cardon Gerner Senior Vice President -- Chief June 12, 1997
------------------------ Financial Officer (Principal Financial
W. Cardon Gerner and Accounting Officer)
/s/ J. Patrick Doherty Director June 12, 1997
-----------------------
J. Patrick Doherty
* Director
----------------------
Jack T. Hammer
* Director
-----------------------
Thomas R. McDade
* Director
----------------------
Kenneth W. Smith
*By: /s/ W. Cardon Gerner June 12, 1997
----------------------
W. Cardon Gerner
Attorney-in-Fact
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation.
4.2* Certificate of Designation of Series One Junior Participating
Preferred Stock.
4.3* Amended and Restated Bylaws.
4.4** Equity Corporation International Amended and Restated 1994
Long-Term Incentive Plan (amended as of October, 1996)
(incorporated by reference to Exhibit 10.10 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996).
4.5* Form of Employee Incentive Stock Option Agreement.
4.6* Form of Executive Non-Qualified Stock Option Agreement
4.7* Form of Executive Incentive Stock Option Agreement.
4.8* Form of Director Non-Qualified Stock Option Agreement.
4.9** Form of Employee Non-Qualified Stock Option Agreement
(incorporated by reference to Exhibit 10.12 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1995).
5.1* Opinion of Andrews & Kurth L.L.P., as to the legality of the
securities being registered.
23.1* Consent of Andrews & Kurth L.L.P. (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1* Power of Attorney (set forth on the signature page contained
in Part II of this Registration Statement).
----------
* Previously filed.
** Incorporated herein by reference.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Equity Corporation International (the "Company") on Form S-8 (File
No. 33-98052) of our report dated March 6, 1997, on our audits of the
consolidated financial statements and financial statement schedule of the
Company, as of December 31, 1996 and 1995, and for each of the three years in
the period ended December 31, 1996, which report is included in the Company's
Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Houston, Texas
June 12, 1997
