As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EQUALNET COMMUNICATIONS CORP.
(Exact Name of Registrant as Specified in its Charter)
TEXAS 76-0457803
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1250 WOOD BRANCH PARK DRIVE
HOUSTON, TEXAS 77079
(281) 529-4600
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
EQUALNET COMMUNICATIONS CORP.
INDEPENDENT CONTRACTOR STOCK OPTION PLAN
(Full Title of the Plan)
MITCHELL H. BODIAN, PRESIDENT
EQUALNET COMMUNICATIONS CORP.
1250 WOOD BRANCH PARK DRIVE
HOUSTON, TEXAS 77079
(281) 529-4600
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
SHELTON M. VAUGHAN, ESQ.
WEIL, GOTSHAL & MANGES LLP
700 LOUISIANA, SUITE 1600
HOUSTON, TEXAS 77002
(713) 546-5000
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 3,000,000 shares $0.73 $2,190,000 $609
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(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933, as amended.
(2) Estimated in accordance with Rule 457(c) under the Securities Act of 1933,
as amended (the "Securities Act"), based on the average of the high and low
sales price of a share of the Registrant's Common Stock on June 22, 1999,
as reported on the Nasdaq SmallCap Market, solely for the purpose of
calculating the registration fee pursuant to Rule 457(h) of the Securities
Act.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1.
The documents containing the information specified in Part I
of this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
ITEM 2.
Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement
(which documents are incorporated by reference in this Section 10(a)
Prospectus), other documents required to be delivered to eligible employees
pursuant to Rule 428(b) or additional information about the Equalnet
Communications Corp. Independent Contractor Stock Option Plan (the "Plan") are
available to participants in the Plan without charge by contacting:
Equalnet Communications Corp.
1250 Wood Branch Park Drive
Houston, Texas 77079
(281) 529-4600
Attention: General Counsel
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Equalnet
Communications Corp. (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K/A for the fiscal
year ended June 30, 1998 filed on June 18, 1999.
(b) The Company's Current Report on Form 8-K filed on
September 21, 1998.
(c) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1998 filed on November 20, 1998.
(d) The Company's Current Report on Form 8-K filed on February
5, 1999.
(e) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1998 filed on February 19, 1999.
(f) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999 filed on May 24, 1999.
(g) The Company's Current Report on Form 8-K filed on June 1,
1999.
(h) The description of the Company's common stock, par value
$.01 per share, contained in the Company's Registration Statement on Form 8-A,
filed with the Commission on February 2, 1995, and including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the respective date of
filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Company's Bylaws provides for mandatory
indemnification to at least the extent specifically allowed by Article 2.02-1 of
the Texas Business Corporation Act (the "TBCA").
Pursuant to Article 2.02-1 of the TBCA, the Company generally
has the power to indemnify its current and former directors, officers, employees
and agents against expenses and liabilities incurred by them in connection with
any suit to which they were, are, or are threatened to be made a party by reason
of their serving in such positions so long as they acted in good faith and in a
manner which they reasonably believed to be in, or, under certain circumstances,
not opposed to, the best interest of the Company, and with respect to any
criminal action, they had no reasonable cause to believe their conduct was
unlawful. However, the Company will not indemnify such person if they are
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adjudged to be liable to the Company unless the court determines that
indemnification is appropriate, in which case indemnification is limited to
reasonable expenses actually incurred by that person in connection with the
proceeding. The Company can also purchase and maintain insurance for such
persons.
The Company's Articles of Incorporation provide that a
director shall not be liable to the Company or its shareholders for monetary
damages for acts or omissions in the director's capacity as a director, except
(i) for breaches of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith that constitute a
breach of duty of the director to the Company or for acts and omissions
involving intentional misconduct or known violations of law, (iii) for
transactions in which the director received an improper personal benefit,
whether or not the benefit resulted from an action taken within the scope of the
director's office, or (iv) for acts or omissions for which the liability of the
director is expressly provided by an applicable statute. The Articles of
Incorporation further provide that neither amendment nor repeal of such
provision shall eliminate or reduce the effect of such provision in respect of
any matter occurring, or any cause of action, suit or claim that, but for such
provision, would accrue or arise, prior to such amendment or repeal.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to Amendment No. 1
to the Registrant's Registration Statement on Form S-1
(Registration No. 33-88742), filed with the Commission on
February 13, 1995).
4.2 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 of the Registrant's Registration Statement on
Form S-1 (Registration No. 33-88742), filed with the
Commission on January 24, 1995).
5.1* Opinion of Weil, Gotshal & Manges LLP, counsel for the
Registrant.
23.1* Consent of Ernst & Young LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (contained in
Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page to the
Registration Statement).
*Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
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reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraph (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 Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the 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) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Houston, Texas, on this 23rd day of June, 1999.
EQUALNET COMMUNICATIONS CORP.
By: /s/ Mitchell H. Bodian
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Mitchell H. Bodian, President
and Co-Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints Mitchell H. Bodian and Dean H. Fisher, and each of them, his true
and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, and hereby
grants to such attorneys-in-fact and agents, and each of them, full power to do
and perform each and every act and thing requisite and necessary to be done, as
fully 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 or any of
them or his or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Mitchell H. Bodian President, Co-Chief Executive Officer and Director June 23, 1999
- ---------------------------------- (principal executive officer, principal financial
Mitchell H. Bodian officer and principal accounting officer)
Co-Chief Executive Officer
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Barrett Wissman
/s/ Mark A. Willis Chairman of the Board of Directors June 23, 1999
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Mark A. Willis
/s/ John Isaac "Ike" Epley Director June 23, 1999
- ----------------------------------
John Isaac "Ike" Epley
/s/ Ronald J. Salazar, Ph.D. Director June 23, 1999
- ----------------------------------
Ronald J. Salazar, Ph.D.
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Articles of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to Amendment No. 1
to the Registrant's Registration Statement on Form S-1
(Registration No. 33-88742), filed with the Commission on
February 13, 1995).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 of the Registrant's Registration Statement on Form S-1
(Registration No. 33-88742), filed with the Commission on
January 24, 1995).
5.1* Opinion of Weil, Gotshal & Manges LLP, counsel for the
Registrant.
23.1* Consent of Ernst & Young LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (contained in Exhibit
5.1).
24.1 Power of Attorney (set forth on the signature page to the
Registration Statement).
*Filed herewith.
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EXHIBIT 5.1
WEIL, GOTSHAL & MANGES LLP
700 LOUISIANA
SUITE 1600
HOUSTON, TEXAS 77002-2784
(713) 546-5000
FAX: (713) 224-9511
June 23, 1999
Equalnet Communications Corp.
1250 Wood Branch Park Drive
Houston, Texas 77079
Ladies and Gentlemen:
We have acted as counsel to Equalnet Communications Corp., a
Texas corporation (the "Company"), in connection with the preparation and filing
by the Company of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, relating to the
proposed issuance of up to 3,000,000 shares (the "Shares") of the common stock,
par value $.01 per share (the "Common Stock"), of the Company pursuant to the
Equalnet Communications Corp. Independent Contractor Stock Option Plan (the
"Plan").
In so acting, we have examined originals or copies (certified
or otherwise identified to our satisfaction) of the Articles of Incorporation of
the Company, the Plan, together with the form of Option Agreement and form of
Stock Grant Agreement (each as defined in the Plan), the resolutions adopted by
the Board of Directors of the Company adopting the Plan and authorizing the
issuance of the Shares pursuant to the Plan, and such other corporate records,
agreements, documents and other instruments, and such certificates or comparable
documents of public officials and of officers and representatives of the
Company, and have made such inquiries of such officers and representatives, as
we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Texas.
2. The Shares have been duly authorized and, assuming that at
the time of issuance of any Shares, the Company has available for issuance, in
accordance with the Articles of Incorporation of the Company and the Texas
Business Corporation Act, in each case as amended from time to time, a number of
shares of Common Stock equal to or greater than the number of Shares to be
issued, the Shares, when issued and delivered to the Participants, as defined in
the Plan, in accordance with the terms of the Plan and the respective Option
Agreements and/or Stock Grant Agreements (each as defined in the Plan), as the
case may be, will be validly issued, fully paid and nonassessable.
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The opinions expressed herein are limited to the corporate
laws of the State of Texas, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, nor may this letter or any
copies thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent.
We hereby consent to the use of this letter as an exhibit to
the Registration Statement and to any and all references to our firm in the
Prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Equalnet Communications
Corp. Independent Contractors Stock Option Plan of our report dated October 8,
1998, with respect to the consolidated financial statements and schedule of
Equalnet Communications Corp. included in its Annual Report on Form 10-K/A for
the fiscal year ended June 30, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Houston, Texas
June 23, 1999
