Boots and Coots International Well Control Inc S-8 11-14-2006
As
filed with the Securities and Exchange Commission on November 14,
2006
Registration
Statement No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE
SECURITIES
ACT OF 1933
BOOTS
& COOTS INTERNATIONAL WELL CONTROL, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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11-2908692
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(State
of Incorporation)
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(IRS
Employer Identification No.)
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11615
N. Houston Rosslyn
Houston,
Texas
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77086
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(Address
of Principal Executive Offices)
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(Zip
Code)
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2004
Long Term Incentive Plan
(Full
title of Plan)
Brian
Keith
Corporate
Secretary and General Counsel
11615
N. Houston Rosslyn
Houston,
Texas 77086
(281)
931-8884
(Name,
address and telephone number of agent for service)
Copy
to:
William
T. Heller IV
Thompson
& Knight LLP
333
Clay Street, Suite 3300
Houston,
Texas 77002
(713)
654-8111
CALCULATION
OF REGISTRATION FEE
Title
of securities to be
registered
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Amount
to be
registered
(1)(2)
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Proposed
maximum offering
price
per share (3)
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Proposed
maximum
aggregate
offering price (3)
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Amount
of
registration
fee
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Common
Stock, par value $0.00001 per share
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2,000,000
shares
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$1.97
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$3,940,000
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$422
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(1) |
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Registrant
is registering an aggregate of 2,000,000 shares under the 2004 Long
Term
Incentive Plan pursuant to this Registration Statement. The shares
being
registered represent an increase in the shares reserved for issuance
under
the Plan from 6,000,000 shares to 8,000,000
shares.
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(2) |
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Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement shall also cover any additional shares of
common
stock that become issuable under the plans by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in
an increase
in the number of the registrant’s outstanding common stock.
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(3) |
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Estimated
solely for the purpose of computing the registration fee in accordance
with paragraphs (c) and (h) of Rule 457 under the Securities Act
of 1933
on the basis of the average of the high and low prices of the common
stock
as reported in the consolidated reporting system on November 10,
2006.
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EXPLANATORY
NOTE AND INCORPORATION OF CONTENTS OF PREVIOUSLY FILED
REGISTRATION
STATEMENT BY REFERENCE
Boots
& Coots International Well Control, Inc. (“Boots & Coots” or the
“Company”) is filing this registration statement on Form S-8 with the U.S.
Securities and Exchange Commission (the “Commission”) to include an additional
2,000,000
shares
under the Boots & Coots International Well Control, Inc., 2004 Long Term
Incentive Plan. Pursuant to such Instruction E, the contents of the Registrant’s
registration statement on Form S-8 (Registration Statement No. 333-119342)
filed
with the Commission on September 28, 2004, is hereby incorporated by reference,
except as revised in Part II of this Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. |
Incorporation
of Documents by Reference.
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The
following documents have been filed by the Registrant with the Commission and
are incorporated by reference in this Registration Statement:
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(a)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2005, filed on March 31, 2006;
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(b)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2006, filed on May 15,
2006;
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(c)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2006, filed on August 14,
2006;
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(d)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2006, filed on November 13,
2006;
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(e)
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The
Registrant’s Forms 8-K filed on March 9, 2006, July 7, 2006, July 19,
2006, September 25, 2006, October 3, 2006 and November 13, 2006 (excluding
any information furnished pursuant to Item 2.02 or Item 7.01 of any
such
Current Reports on Form 8-K); and
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(f)
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The
description of the common stock, $0.00001 par value per share, of
the
Registrant set forth as Item 1 of the Registrant’s registration statement
on Form 8-A filed January 22, 1998 and on Form 8-A filed December
5, 2001,
pursuant to Section 12 of the Exchange Act, including any amendment
or
report filed for the purpose of updating such
information.
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In
addition, all documents Registrant subsequently files pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), after the effective date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered hereby have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in any document incorporated
or deemed to be incorporated by reference shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained in any other subsequently filed document which also is
or is
deemed to be incorporated by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute
a
part of this registration statement, except as so modified or
superseded.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Our
certificate of incorporation contains certain provisions permitted under the
Delaware General Corporation Law (“DGCL”) relating to the liability of
directors. These provisions eliminate a director's personal liability for
monetary damages resulting from a breach of fiduciary duty, except that a
director will be personally liable:
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for
any breach of the duty of loyalty to us or our
stockholders;
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for
an act or omission not in good faith that constitutes a breach of
duty of
the director to us or involving intentional misconduct or a knowing
violation of law;
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for
any transaction from which the director derived an improper personal
benefit;
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under
Section 174 of the DGCL relating to unlawful stock repurchases or
dividends; and
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an
act or omission for which the liability of a director is expressly
provided for by an applicable
statute.
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These
provisions do not limit or eliminate our rights or those of any stockholder
to
seek nonmonetary relief, such as an injunction or rescission, in the event
of a
breach of a director's fiduciary duty. These provisions will not alter a
director's liability under federal securities laws.
Our
certificate of incorporation and bylaws also provide that we must indemnify
our
directors and officers to the fullest extent permitted by Delaware law and
also
provide that we must advance expenses, as incurred, to our directors and
officers in connection with a legal proceeding to the fullest extent permitted
by Delaware law, subject to very limited exceptions.
Section 145
of the DGCL, inter alia, authorizes a 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, because such person is or was a director, officer, employee
or agent of the corporation 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 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
reason to believe his conduct was unlawful. Similar indemnity is authorized
for
such persons against expenses, including attorneys' fees, actually and
reasonably incurred in defense or settlement of any such pending, completed
or
threatened action or suit by or in the right of the corporation 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 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 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. We maintain policies insuring
our and our subsidiaries' officers and directors against specified liabilities
for actions taken in such capacities, including liabilities under the Securities
Act of 1933.
We
intend
to enter into separate indemnification agreements with our directors and
officers that may, in some cases, be broader than the specific indemnification
provisions contained in our certificate of incorporation, bylaws or the DGCL.
The indemnification agreements may require us, among other things, to indemnify
our officers and directors against certain liabilities, other than liabilities
arising from willful misconduct, that may arise by reason of their status or
service as directors or officers. We believe that these indemnification
arrangements are necessary to attract and retain qualified individuals to serve
as directors and officers.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Reference
is made to the Exhibit Index that appears at page II-6 of this Registration
Statement for a detailed list of exhibits filed as a part hereof.
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(a)
The undersigned registrant hereby undertakes:
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(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. Notwithstanding
the
foregoing, any increase or decrease in volume of the securities offered (if
the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the
effective registration statement;
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change
to
such information in this registration statement;
PROVIDED,
HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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)
That,
for the 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
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act
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.
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
Houston, State of Texas, on the 13th
day of
November, 2006.
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BOOTS & COOTS INTERNATIONAL
WELL CONTROL, INC. |
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By: |
/s/
JERRY WINCHESTER |
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Jerry Winchester |
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Chief Executive
Officer |
POWER
OF ATTORNEY
Each
person whose signature appears below appoints Jerry Winchester and Gabriel
Aldape, and each of them, with full power of substitution, their true and lawful
attorneys-in-fact and agents to do any and all acts and things in the
undersigned’s name and on the undersigned’s behalf in the undersigned’s capacity
as an officer or director of Boots & Coots International Well Control, Inc.,
in connection with, and only in connection with, the filing of this registration
statement (including, but not limited to, the execution of any and all
instruments for the undersigned in the undersigned’s name which such person may
deem necessary or advisable to enable Boots & Coots International Well
Control, Inc., to comply with the Securities Act of 1933, as amended (the “Act”)
and rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the filing of this registration statement),
including specifically, but not limited to, the power and authority to sign
for
the undersigned any and all amendments, including post-effective amendments;
and
the undersigned does hereby ratify and confirm all that such person or persons
shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Capacity
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Date
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/s/
Jerry Winchester
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President,
Chief Executive Officer,
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November
13, 2006
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Jerry
Winchester
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Chief
Operating
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Officer,
and Director
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(Principal
Executive Officer)
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/s/
Gabriel Aldape
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Senior
Vice President—Finance and
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November
13, 2006
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Gabriel
Aldape
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Administration
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(Principal
Financial and Accounting Officer)
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/s/
K. Kirk Krist
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Chairman
of the Board
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November
13, 2006
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K.
Kirk Krist
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/s/
W. Richard Anderson
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Director
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November
13, 2006
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W.
Richard Anderson
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/s/
E. J. DiPaolo
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Director
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November
13, 2006
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E.
J. DiPaolo
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Director
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Robert
S. Herlin
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/s/
Douglas E. Swanson
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Director
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November
13, 2006
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Douglas
E. Swanson
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/s/
Cindy B. Taylor
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Director
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November
13, 2006
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Cindy
B. Taylor
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INDEX
TO EXHIBITS
Exhibit
No.
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Exhibit
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Opinion
of Thompson & Knight LLP
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2004
Long Term Incentive Plan (amended and restated through October
2006)
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Consent
of UHY Mann Frankfort Stein & Lipp CPAs, LLP
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Consent
of UHY Mann Frankfort Stein & Lipp CPAs, LLP
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Consent
of Ernst & Young LLP
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23.4
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Consent
of Thompson & Knight LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on signature page of this Registration
Statement).
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II-6