-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JhzZiJWMDGzhz7ufGfwxXCLHX2c+4miOqaQUjnG/VJgNNigd3XFeTDUGlSHmBNBk 4AMSRFl5MBGIMilSvpXJQA== 0000950129-96-003595.txt : 19961231 0000950129-96-003595.hdr.sgml : 19961231 ACCESSION NUMBER: 0000950129-96-003595 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19961227 EFFECTIVENESS DATE: 19961227 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DANIEL INDUSTRIES INC CENTRAL INDEX KEY: 0000026821 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 741547355 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-18925 FILM NUMBER: 96687275 BUSINESS ADDRESS: STREET 1: 9753 PINE LAKE DR CITY: HOUSTON STATE: TX ZIP: 77055 BUSINESS PHONE: 7134676000 MAIL ADDRESS: STREET 1: 9753 PINE LAKE DRIVE CITY: HOUSTON STATE: TX ZIP: 77055 S-8 1 DANIEL INDUSTRIES, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 27, 1996 REGISTRATION NO.333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- DANIEL INDUSTRIES, INC. (Exact name of registrant as specified in its charter) DELAWARE 75-1547355 (State or other jurisdiction of (I.R.S Employer incorporation or organization) Identification No.) 9753 PINE LAKE DRIVE HOUSTON, TEXAS 77055 (Address of Principal Executive Offices) ASSUMED OPTIONS GRANTED BY BETTIS CORPORATION Pursuant to its 1994 Stock Incentive Plan and 1994 Non-Employee Director Stock Option Plan (Full title of the plan) JAMES M. TIDWELL VICE PRESIDENT AND CHIEF FINANCIAL OFFICER DANIEL INDUSTRIES, INC. 9753 PINE LAKE DRIVE HOUSTON, TEXAS 77055 (Name and address of agent for service) (713) 467-6000 (Telephone number, including area code, of agent for service) -------------------- With Copy to: Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, TX 77010-3095 (713) 651-5151 Attention: Katie-Pat Vletas CALCULATION OF REGISTRATION FEE
======================================================================================================================= Proposed maximum Proposed maximum Title of securities Amount to be offering price per aggregate offering Amount of to be registered registered unit (1) price (1) registration fee - ----------------------------------------------------------------------------------------------------------------------- Common Stock $1.25 par value 452,980 shares (2) $12.94 $5,861,562 $1,777 =======================================================================================================================
(1) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating the registration fee and based upon the average of the high and low sale prices of a share of Common Stock as reported by the New York Stock Exchange on December 20, 1996. (2) Also registered hereby is (i) an indeterminable number of shares of Common Stock issuable as a result of the anti-dilution provisions of the 1994 Stock Incentive Plan or 1994 Non-Employee Director Stock Option Plan and (ii) the Common Stock purchase rights associated with the shares of Common Stock being registered (the "Rights"). ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. Incorporation of Documents by Reference The following documents previously filed by Daniel Industries, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference herein: (a) Annual Report on Form 10-K for the fiscal year ended September 30, 1996; (b) Current Report on Form 8-K dated December 12, 1996; (c) The description of the Company's Common Stock contained in its Registration of Securities of Certain Successor Issuers on Form 8-B dated May 5, 1988; and (d) The description of the Company's Preferred Share Purchase Rights contained in its Registration Statement on Form 8-A filed June 5, 1990. All documents filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of the filing of this Registration Statement and before the filing of a post-effective amendment 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 date of filing of such documents. ITEM 4. Description of Securities Not applicable. ITEM 5. Interests of Named Experts and Legal Counsel Certain legal matters in connection with the securities offered hereby are being passed upon for the Registrant by Thomas L. Sivak, General Counsel to the Company. Mr. Sivak owns 3,042 shares of Common Stock and holds options to purchase 24,500 shares of Common Stock of which 11,167 options are currently exercisable. ITEM 6. Indemnification of Directors and Officers The Company's Certificate of Incorporation contains a provision that eliminates the personal liability of a director to the Company and its stockholders for monetary damages for breach of his fiduciary duty as a director, except liability (i) for any breach of the 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) for payment of an improper dividend or improper repurchase of the Company's stock under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. Except as set forth above, if a director were to breach his fiduciary duty in performing his duties as a director, neither the Company nor its stockholders could recover monetary damages from the director, and the only course of action available to the Company's stockholders would be equitable remedies, such as an action to II-2 3 enjoin or rescind a transaction involving a breach of fiduciary duty. To the extent certain claims against directors are limited to equitable remedies, the provision in the Company's Certificate of Incorporation may reduce the likelihood of derivative litigation and may discourage stockholders or management from initiating litigation against directors for breach of their fiduciary duty. Additionally, equitable remedies may not be effective in many situations. If a stockholder's only remedy is to enjoin the completion of the Board of Directors' action, this remedy may be ineffective if the stockholder does not become aware of a transaction or event until after it has been completed. In such a situation, it is possible that the stockholders and the Company would have no effective remedy against the directors. The Company's Certificate of Incorporation further provides that, if the Delaware General Corporation Law is amended to allow the further elimination or limitation of the liability of directors, then the liability of the Company's directors shall be limited or eliminated to the fullest extent permitted by the amended Delaware General Corporation Law. Article IX of the Company's By-laws provides that each person who is or was a director or officer of the Company, or who serves or served any other enterprise or organization as such at the request of the Company, shall be indemnified by the Company to the fullest extent permitted by the Delaware General Corporation Law. Delaware corporations also are authorized to obtain insurance to protect officers and directors from certain liabilities, including liabilities against which the corporation cannot indemnify its directors and officers. The Company currently has in effect a directors' and officers' liability insurance policy, which provides coverage in the amount of $10,000,000, subject to a maximum deductible of $200,000, per loss and excludes coverage for dishonest, fraudulent or criminal acts and situations where the officer or director gained a personal advantage or profit. Item 7. Exemption from Registration Claimed Not applicable. ITEM 8. Exhibits 4.1 Note Purchase Agreement dated as of December 5, 1988, between the Company and The Variable Annuity Life Insurance Company, The Mutual Benefit Life Insurance Company, MONY Life Insurance Company of America and MONY Legacy Life Insurance Company (including the form of the Company's Senior Notes in the aggregate in the principal amount of $20,000,000) (filed as Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended September 30, 1988, and hereby incorporated by reference herein). 4.2 Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration of Securities of Certain Successor Issuers on Form 8-B dated May 5, 1988, and hereby incorporated by reference herein). 4.3 Amendment to Certificate of Incorporation of the Company (filed as Exhibit 4.1 to the Company's Current Report on Form 8-K dated December 12, 1996, and hereby incorporated by reference herein). 4.4 By-laws of the Company, as amended through February 1, 1996, (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-4 (Reg. No. 333-14635), and hereby incorporated by reference herein). II-3 4 4.5 Certificate of Designation, Powers, Preferences and Rights of Series A Junior Participating Preferred Stock (filed as Exhibit 3.3 on Daniel's Form 8 amending its Annual Report on Form 10-K for the year ended September 30, 1990, and hereby incorporated by reference herein). 4.6 Rights Agreement dated as of May 31, 1990, between the Company and Wachovia Bank and Trust Company, N.A., as Rights Agent (filed as Exhibit 1 to the Company's Registration of Certain Classes of Securities on Form 8-A filed June 5, 1990, and hereby incorporated by reference herein). 4.7 Bettis Corporation 1994 Stock Incentive Plan (including form of Nonstatutory Stock Option Agreement used in connection therewith). 4.8 Bettis Corporation 1994 Nonemployee Directors' Stock Option Plan (including form of Nonemployee Director's Stock Option Agreement included therewith). 4.9 Forms of Stock Option Assumption. 5.1 Opinion of Thomas L. Sivak, regarding legality of securities. 23.1 Consent of Thomas L. Sivak (included in Exhibit 5.1). 23.2 Consent of Price Waterhouse LLP. 24.1 Powers of Attorney (contained on page II-6 and II-7 hereof). ITEM 22. Undertakings 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 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; (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; and (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. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended (the "Securities Act"), each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in 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. 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 II-4 5 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. II-5 6 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 Houston, Texas, on the 12th day of December, 1996. DANIEL INDUSTRIES, INC. By /s/ W. A. GRIFFIN, III ------------------------------- W. A. Griffin, III President and Chief Executive Officer POWER OF ATTORNEY KNOWALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James M. Tidwell and Michael R. Yellin his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same and all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ W. A. GRIFFIN, III President, Chief Executive Officer and December 12, 1996 - ------------------------------------- Director (Principal Executive Officer) W. A. Griffin, III /s/ JAMES M. TIDWELL Vice President, Finance and Chief December 12, 1996 - ------------------------------------- Financial Officer (Principal Financial James M. Tidwell Officer) /s/ MARY R. BESHEARS Controller (Principal Accounting December 12, 1996 - ------------------------------------- Officer) Mary R. Beshears /s/ NATHAN M. AVERY Director December 12, 1996 - ------------------------------------- Nathan M. Avery
II-6 7 Director December __, 1996 ------------------------------------- Ralph F. Cox /s/ GIBSON GAYLE, JR. Director December 12, 1996 ------------------------------------- Gibson Gayle, Jr. /s/ W. A. GRIFFIN Chairman Emeritus and a Director December 12, 1996 ------------------------------------- W. A. Griffin /s/ RONALD C. LASSITER Chairman of the Board December 12, 1996 ------------------------------------- Ronald C. Lassiter /s/ THOMAS J. KEEFE Director December 12, 1996 ------------------------------------- Thomas J. Keefe /s/ LEO E. LINBECK, JR. Director December 12, 1996 ------------------------------------- Leo E. Linbeck, Jr. /s/ BRIAN E. O'NEILL Director December 12, 1996 ------------------------------------- Brian E. O'Neill
II-7 8 Exhibit Index
Ex. No. Description --- ---------------------------------------------------------------------------- 4.1 Note Purchase Agreement dated as of December 5, 1988, between the Company and The Variable Annuity Life Insurance Company, The Mutual Benefit Life Insurance Company, MONY Life Insurance Company of America and MONY Legacy Life Insurance Company (including the form of the Company's Senior Notes in the aggregate in the principal amount of $20,000,000) (filed as Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended September 30, 1988, and hereby incorporated by reference herein). 4.2 Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration of Securities of Certain Successor Issuers on Form 8-B dated May 5, 1988, and hereby incorporated by reference herein). 4.3 Amendment to Certificate of Incorporation of the Company (filed as Exhibit 4.1 to the Company's Current Report on Form 8-K dated December 12, 1996, and hereby incorporated by reference herein). 4.4 By-laws of the Company, as amended through February 1, 1996, (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-4 (Reg. No. 333-14635), and hereby incorporated by reference herein). 4.5 Certificate of Designation, Powers, Preferences and Rights of Series A Junior Participating Preferred Stock (filed as Exhibit 3.3 on Daniel's Form 8 amending its Annual Report on Form 10-K for the year ended September 30, 1990, and hereby incorporated by reference herein). 4.6 Rights Agreement dated as of May 31, 1990, between the Company and Wachovia Bank and Trust Company, N.A., as Rights Agent (filed as Exhibit 1 to the Company's Registration of Certain Classes of Securities on Form 8-A filed June 5, 1990, and hereby incorporated by reference herein). 4.7 Bettis Corporation 1994 Stock Incentive Plan (including form of Nonstatutory Stock Option Agreement used in connection therewith). 4.8 Bettis Corporation 1994 Nonemployee Directors' Stock Option Plan (including form of Nonemployee Director's Stock Option Agreement included therewith). 4.9 Forms of Stock Option Assumption. 5.1 Opinion of Thomas L. Sivak, regarding legality of securities. 23.1 Consent of Thomas L. Sivak (included in Exhibit 5.1). 23.2 Consent of Price Waterhouse LLP. 24.1 Powers of Attorney (contained on page II-6 and II-7 hereof).
EX-4.7 2 BETTIS CORPORATION 1994 STOCK INCENTIVE PLAN 1 EXHIBIT 4.7 BETTIS CORPORATION 1994 STOCK INCENTIVE PLAN I. PURPOSE The purpose of the BETTIS CORPORATION 1994 STOCK INCENTIVE PLAN (the "Plan") is to provide a means through which BETTIS CORPORATION, a Delaware corporation (the "Company"), and its subsidiaries may attract able persons to enter the employ of the Company and to provide a means whereby those employees upon whom the responsibilities of the successful administration and management of the Company rest, and whose present and potential contributions to the welfare of the Company are of importance, can acquire and maintain stock ownership, thereby strengthening their concern for the welfare of the Company and their desire to remain in its employ. A further purpose of the Plan is to provide such employees with additional incentive and reward opportunities designed to enhance the profitable growth of the Company. Accordingly, the Plan provides for granting Incentive Stock Options, options which do not constitute Incentive Stock Options, Restricted Stock Awards, or any combination of the foregoing, as is best suited to the circumstances of the particular employee as provided herein. II. DEFINITIONS The following definitions shall be applicable throughout the Plan unless specifically modified by any paragraph: A. "Award" means, individually or collectively, any Option or Restricted Stock Award. B. "Board" means the Board of Directors of the Company. C. "Code" means the Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to any section and any regulations under such section. D. "Committee" means not less than two members of the Board who are selected by the Board as provided in paragraph IV(a). E. "Common Stock" means the common stock, par value $.01 per share, of the Company. F. "Company" means Bettis Corporation. G. "Director" means an individual elected to the Board by the stockholders of the Company or by the Board under applicable corporate law who is serving on the Board on the date the Plan is adopted by the Board or is elected to the Board after such date. H. An "employee" means any person (including a Director) in an employment relationship with the Company or any parent or subsidiary corporation (as defined in section 424 of the Code). 2 I. "1934 Act" means the Securities Exchange Act of 1934, as amended. J. "Fair Market Value" means, as of any specified date, the mean of the high and low sales prices of the Common Stock (i) reported by the NASDAQ-National Market System on that date or (ii) if the Common Stock is listed on a national stock exchange, reported on the stock exchange composite tape on that date; or, in either case, if no prices are reported on that date, on the last preceding date on which such prices of the Common Stock are so reported. If the Common Stock is traded over the counter at the time a determination of its fair market value is required to be made hereunder, its fair market value shall be deemed to be equal to the average between the reported high and low or closing bid and asked prices of Common Stock on the most recent date on which Common Stock was publicly traded. In the event Common Stock is not publicly traded at the time a determination of its value is required to be made hereunder, the determination of its fair market value shall be made by the Committee in such manner as it deems appropriate. K. "Holder" means an employee who has been granted an Award. L. "Incentive Stock Option" means an incentive stock option within the meaning of section 422 of the Code. M. "Option" means an Award granted under paragraph VII of the Plan and includes both Incentive Stock Options to purchase Common Stock and Options which do not constitute Incentive Stock Options to purchase Common Stock. N. "Option Agreement" means a written agreement between the Company and a Holder with respect to an Option. O. "Plan" means the Bettis Corporation 1994 Stock Incentive Plan, as amended from time to time. P. "Restricted Stock Agreement" means a written agreement between the Company and a Holder with respect to a Restricted Stock Award. Q. "Restricted Stock Award" means an Award granted under paragraph VIII of the Plan. R. "Rule 16b-3" means SEC Rule 16b-3 promulgated under the 1934 Act, as such may be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a similar function. S. "Stock Appreciation Right" shall have the meaning assigned to such term in paragraph VII(d) of the Plan. III. EFFECTIVE DATE AND DURATION OF THE PLAN The Plan shall be effective upon the date of its adoption by the Board, provided the Plan is approved by the shareholders of the Company within twelve months thereafter. No further Awards may be granted under the Plan after ten years from the date the Plan is adopted by the Board. The Plan shall remain in effect until all Awards granted under the Plan have been satisfied or expired. 2 3 IV. ADMINISTRATION A. Composition of Committee. The Plan shall be administered by a committee which shall be (i) appointed by the Board; (ii) constituted so as to permit the Plan to comply with Rule 16b-3 and (iii) constituted solely of "outside directors", within the meaning of Section 162(m) of the Code and applicable interpretive authority thereunder. Members of the Committee shall not be eligible to receive an Award under the Plan and no person who has received an Award in the preceding year shall be eligible to serve on the Committee. B. Powers. Subject to the provisions of the Plan, the Committee shall have sole authority, in its discretion, to determine which employees shall receive an Award, the time or times when such Award shall be made, whether an Incentive Stock Option or, nonqualified Option shall be granted, and the number of shares of Common Stock which may be issued under each Option or Restricted Stock Award. In making such determinations the Committee may take into account the nature of the services rendered by the respective employees, their present and potential contribution to the Company's success and such other factors as the Committee in its discretion shall deem relevant. C. Additional Powers. The Committee shall have such additional powers as are delegated to it by the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective agreements executed thereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the Plan, and to determine the terms, restrictions and provisions of each Award, including such terms, restrictions and provisions as shall be requisite in the judgment of the Committee to cause designated Options to qualify as Incentive Stock Options, and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any agreement relating to an Award in the manner and to the extent it shall deem expedient to carry it into effect. The determinations of the Committee on the matters referred to in this paragraph IV shall be conclusive. V. GRANT OF OPTIONS AND RESTRICTED STOCK AWARDS; SHARES SUBJECT TO THE PLAN A. Stock Grant and Award Limits. The Committee may from time to time grant Awards to one or more employees determined by it to be eligible for participation in the Plan in accordance with the provisions of paragraph VI. Subject to paragraph IX, the aggregate number of shares of Common Stock that may be issued under the Plan shall not exceed 750,000 shares. Shares shall be deemed to have been issued under the Plan only (i) to the extent actually issued and delivered pursuant to an Award, or (ii) to the extent an Award granted under paragraph VII or VIII is settled in cash. To the extent that an Award lapses or the rights of its Holder terminate, any shares of Common Stock subject to such Award shall again be available for the grant of an Award. Separate stock certificates shall be issued by the Company for those shares acquired pursuant to the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of any Option which does not constitute an Incentive Stock Option. Notwithstanding any provision in the Plan to the contrary, the maximum number of shares of Common Stock that may be subject to Awards granted to any one individual during any calendar year may not exceed 150,000 shares of Common Stock (subject to adjustment in the same manner as provided in paragraph IX with respect to shares of Common Stock subject to Options then outstanding). B. Stock Offered. The stock to be offered pursuant to the grant of an Award may be authorized but unissued Common Stock or Common Stock previously issued and outstanding and reacquired by the Company. 3 4 VI. ELIGIBILITY Awards may be granted only to persons who, at the time of grant, are employees. Awards may not be granted to any Director who is not an employee. An Award may be granted on more than one occasion to the same person, and, subject to the limitations set forth in the Plan, such Award may include an Incentive Stock Option or an Option which is not an Incentive Stock Option, a Restricted Stock Award, or any combination thereof. VII. STOCK OPTIONS A. Option Period. The term of each Option shall be as specified by the Committee at the date of grant. B. Limitations on Exercise of Option. An Option shall be exercisable in whole or in such installments and at such times as determined by the Committee. C. Special Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Common Stock with respect to which Incentive Stock Options granted after 1986 are exercisable for the first time by an individual during any calendar year under all incentive stock option plans of the Company and its parent and subsidiary corporations exceeds $100,000, such Incentive Stock Options shall be treated as options which do not constitute Incentive Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of an optionee's Incentive Stock Options will not constitute Incentive Stock Options because of such limitation and shall notify the optionee of such determination as soon as practicable after such determination. No Incentive Stock Option shall be granted to an individual if, at the time the Option is granted, such individual owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of its parent or subsidiary corporation, within the meaning of section 422(b)(6) of the Code, unless (i) at the time such Option is granted the option price is at least 110% of the Fair Market Value of the Common Stock subject to the Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the date of grant. D. Option Agreement. Each Option shall be evidenced by an Option Agreement in such form and containing such provisions not inconsistent with the provisions of the Plan as the Committee from time to time shall approve, including, without limitation, provisions to qualify an Incentive Stock Option under section 422 of the Code. Each Option Agreement shall provide that the Option may not be exercised, subject to paragraph IX, earlier than six months from the date of grant and shall specify the effect of termination of employment on the exercisability of the Option. An Option Agreement may provide for the payment of the option price, in whole or in part, by the delivery of a number of shares of Common Stock (plus cash if necessary) having a Fair Market Value equal to such option price. Moreover, an Option Agreement may provide for a "cashless exercise" of the Option by establishing procedures whereby the Holder, by a properly-executed written notice, directs (i) an immediate market sale or margin loan respecting all or a part of the shares of Common Stock to which he is entitled upon exercise pursuant to an extension of credit by the Company to the Holder of the option price, (ii) the delivery of the shares of Common Stock from the Company directly to a brokerage firm and (iii) the delivery of the option price from sale or margin loan proceeds from the brokerage firm directly to the Company. Further, an Option Agreement may provide for the surrender of the right to purchase shares under the Option in return for a payment in cash or shares of Common Stock or a combination of cash and 4 5 shares of Common Stock equal in value to the excess of the Fair Market Value of the shares with respect to which the right to purchase is surrendered over the option price therefor ("Stock Appreciation Rights"), on such terms and conditions as the Committee in its sole discretion may prescribe; provided, that with respect to Stock Appreciation Rights granted to employees who are subject to Section 16 of the 1934 Act, except as provided in subparagraph IX(c) hereof, the Committee shall retain final authority (i) to determine whether an optionee shall be permitted, or (ii) to approve an election by an optionee, to receive cash in full or partial settlement of Stock Appreciation Rights. The terms and conditions of the respective Option Agreements need not be identical. E. Option Price and Payment. The price at which a share of Common Stock may be purchased upon exercise of an Option shall be determined by the Committee, but, subject to adjustment as provided in paragraph IX, (i) in the case of an Incentive Stock Option, such purchase price shall not be less than the Fair Market Value of a share of Common Stock on the date such Option is granted, and (ii) in the case of an Option that does not constitute an Incentive Stock Option, such purchase price shall not be less than 50% of the Fair Market Value of a share of Common Stock on the date such Option is granted. The Option or portion thereof may be exercised by delivery of an irrevocable notice of exercise to the Company. The purchase price of the Option or portion thereof shall be paid in full in the manner prescribed by the Committee. Separate stock certificates shall be issued by the Company for those shares acquired pursuant to the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of any Option which does not constitute an Incentive Stock Option. F. Shareholder Rights and Privileges. The Holder shall be entitled to all the privileges and rights of a shareholder only with respect to such shares of Common Stock as have been purchased under the Option and for which certificates of stock have been registered in the Holder's name. G. Options and Rights in Substitution for Stock Options Granted by Other Corporations. Options and Stock Appreciation Rights may be granted under the Plan from time to time in substitution for stock options held by individuals employed by corporations who become employees as a result of a merger or consolidation of the employing corporation with the Company or any subsidiary, or the acquisition by the Company or a subsidiary of the assets of the employing corporation, or the acquisition by the Company or a subsidiary of stock of the employing corporation with the result that such employing corporation becomes a subsidiary. VIII. RESTRICTED STOCK AWARDS A. Restriction Period To Be Established by the Committee. At the time a Restricted Stock Award is made, the Committee shall establish a period of time (the "Restriction Period") applicable to such Award. Each Restricted Stock Award may have a different Restriction Period, in the discretion of the Committee. The Restriction Period applicable to a particular Restricted Stock Award shall not be changed except as permitted by paragraph VIII(b) or paragraph IX. B. Other Terms and Conditions. Common Stock awarded pursuant to a Restricted Stock Award shall be represented by a stock certificate registered in the name of the Holder of such Restricted Stock Award. The Holder shall have the right to receive dividends during the Restriction Period, to vote Common Stock subject thereto and to enjoy all other shareholder rights, except that (i) the Holder shall not be entitled to delivery of the stock certificate until the Restriction Period shall have expired, (ii) the Company shall retain 5 6 custody of the stock during the Restriction Period, (iii) the Holder may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the stock during the Restriction Period, and (iv) a breach of the terms and conditions established by the Committee pursuant to the Restricted Stock Agreement, shall cause a forfeiture of the Restricted Stock Award. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms, conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the termination of employment (by retirement, disability, death or otherwise) of a Holder prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall be set forth in a Restricted Stock Agreement made in conjunction with the Award. C. Payment for Restricted Stock. The Committee shall determine the amount and form of any payment for Common Stock received pursuant to a Restricted Stock Award, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Common Stock received pursuant to a Restricted Stock Award, except to the extent otherwise required by law. (d) Agreements. At the time any Award is made under this paragraph VIII, the Company and the Holder shall enter into a Restricted Stock Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate. The terms and provisions of the respective Restricted Stock Agreements need not be identical. IX. RECAPITALIZATION OR REORGANIZATION A. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company's capital structure or its business, any merger or consolidation of the Company, any issue of debt or equity securities ahead of or affecting Common Stock or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act of proceeding. B. The shares with respect to which Options may be granted are shares of Common Stock as presently constituted, but if, and whenever, prior to the expiration of an Option theretofore granted, the Company shall effect a subdivision or consolidation of shares of Common Stock or the payment of a stock dividend on Common Stock without receipt of consideration by the Company, the number of shares of Common 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. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise of an Option theretofore granted the Holder shall be entitled to purchase under such Option, in lieu of the number of shares of Common Stock then covered by such Option, the number and class of shares of stock and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of shares of Common Stock then covered by such Option. If (i) the Company shall not be the surviving entity in any merger, consolidation or other reorganization (or survives only as a subsidiary of an entity other than a previously wholly owned subsidiary of the Company), (ii) 6 7 the Company sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of its assets to any other person or entity (other than a wholly owned subsidiary of the Company), (iii) the Company is to be dissolved and liquidated, (iv) any person or entity, including a "group" as contemplated by Section 13(d)(3) of the 1934 Act, acquires or gains ownership or control (including, without limitation, power to vote) of more than 50% of the outstanding shares of the Company's voting stock (based upon voting power), or (v) as a result of or in connection with a contested election of directors, the persons who were directors of the Company before such election shall cease to constitute a majority of the Board (each such event is referred to herein as a "Corporate Change"), no later than (x) ten days after the approval by the shareholders of the Company of such merger, consolidation, reorganization, sale, lease or exchange of assets or dissolution or such election of directors or (x) thirty days after a change of control of the type described in Clause (iv), the Committee, acting in its sole discretion without the consent or approval of any optionee, shall act to effect one or more of the following alternatives, which may vary among individual optionees and which may vary among Options held by any individual optionee: (1) accelerate the time at which Options then outstanding may be exercised so that such Options may be exercised in full for a limited period of time on or before a specified date (before or after such Corporate Change) fixed by the Committee, after which specified date all unexercised Options and all rights of optionees thereunder shall terminate, (2) require the mandatory surrender to the Company by selected optionees of some or all of the outstanding Options held by such optionees (irrespective of whether such Options are then exercisable under the provisions of the Plan) as of a date, before or after such Corporate Change, specified by the Committee, in which event the Committee shall thereupon cancel such Options and the Company shall pay to each optionee an amount of cash per share equal to the excess, if any, of the amount calculated in subparagraph (d) below (the "Change of Control Value") of the shares subject to such Option over the exercise price(s) under such Options for such shares, (3) make such adjustments to Options then outstanding as the Committee deems appropriate to reflect such Corporate Change (provided, however, that the Committee may determine in its sole discretion that no adjustment is necessary to Options then outstanding) or (4) provide that 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 Common Stock then covered by such Option the number and class of shares of stock or other securities or property (including, without limitation, cash) to which the optionee would have been entitled pursuant to the terms of the agreement of merger, consolidation or sale of assets and dissolution if, immediately prior to such merger, consolidation or sale of assets and dissolution the optionee had been the holder of record of the number of shares of Stock then covered by such Option. D. For the purposes of clause (2) in subparagraph (c) above, the "Change of Control Value" shall equal the amount determined in clause (i), (ii) or (iii), whichever is applicable, as follows: (i) the per share price offered to shareholders of the Company in any such merger, consolidation, reorganization, sale of assets or dissolution transaction, (ii) the price per share offered to shareholders of the Company in any tender offer or exchange offer whereby a Corporate Change takes place, or (iii) if such Corporate Change occurs other than pursuant to a tender or exchange offer, the fair market value per share of the shares into which such Options being surrendered are exercisable, as determined by the Committee as of the date determined by the Committee to be the date of cancellation and surrender of such Options. In the event that the consideration offered to shareholders of the Company in any transaction described in this subparagraph (d) or subparagraph (c) above consists of anything other than cash, the Committee shall determine the fair cash equivalent of the portion of the consideration offered which is other than cash. E. In the event of changes in the outstanding Common Stock by reason of recapitalization, reorganizations, mergers, consolidations, combinations, exchanges or other 7 8 relevant changes in capitalization occurring after the date of the grant of any Award and not otherwise provided for by this paragraph IX, any outstanding Awards and any agreements evidencing such Awards shall be subject to adjustment by the Committee at its discretion as to the number and price of shares of Common Stock or other consideration subject to such Awards. In the event of any such change in the outstanding Common Stock, the aggregate number of shares available under the Plan may be appropriately adjusted by the Committee, whose determination shall be conclusive. F. Any adjustment provided for in the above subparagraphs shall be subject to any required shareholder action. G. Except as hereinbefore expressly provided, the issuance by the Company 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 of obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to Awards theretofore granted or the purchase price per share, if applicable. H. Plan provisions to the contrary notwithstanding, with respect to any Restricted Stock Awards outstanding at the time a Corporate Change as described in subparagraph (c) above occurs, the Committee may, in its discretion and as of a date determined by the Committee, fully vest any or all Common Stock awarded to the Holder pursuant to such Restricted Stock Award and then outstanding and, upon such vesting, all restrictions applicable to such Restricted Stock Award shall terminate as of such date. Any action by the Committee pursuant to this subparagraph may vary among individual Holders and may vary among the Restricted Stock Awards held by any individual Holder. X. AMENDMENT AND TERMINATION OF THE PLAN The Board in its discretion may terminate the Plan at any time with respect to any shares for which Awards have not theretofore been granted. The Board shall have the right to alter or amend the Plan or any part thereof from time to time; provided that no change in any Award theretofore granted may be made which would impair the rights of the Holder without the consent of the Holder, and provided, further, that the Board may not, without approval of the shareholders, amend the Plan: A. to increase the maximum number of shares which may be issued on exercise or surrender of an Award, except as provided in paragraph IX; B. to change the Option price; C. to change the class of employees eligible to receive Awards or materially increase the benefits accruing to employees under the Plan; D. to extend the maximum period during which Awards may be granted under the Plan; E. to modify materially the requirements as to eligibility for participation in the Plan; or 8 9 F. to decrease any authority granted to the Committee hereunder in contravention of Rule 16b-3. XI. MISCELLANEOUS A. No Right To An Award. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an employee any right to be granted an Award to purchase Common Stock, a right to a Restricted Stock Award, or any of the rights hereunder except as may be evidenced by an Award or by an Option Agreement or a Restricted Stock Agreement duly executed on behalf of the Company, and then only to the extent and on the terms and conditions expressly set forth therein. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of funds or assets to assure the payment of any Award. B. No Employment Rights Conferred. Nothing contained in the Plan shall (i) confer upon any employee any right with respect to continuation of employment with the Company or any subsidiary or (ii) interfere in any way with the right of the Company or any subsidiary to terminate his or her employment at any time. C. Other Laws; Withholding. The Company shall not be obligated to issue any Common Stock pursuant to any Award granted under the Plan at any time when the shares covered by such Award have not been registered under the Securities Act of 1933 and such other state and federal laws, rules or regulations as the Company or the Committee deems applicable and, in the opinion of legal counsel for the Company, there is no exemption from the registration requirements of such laws, rules or regulations available for the issuance and sale of such shares. No fractional shares of Common Stock shall be delivered, nor shall any cash in lieu of fractional shares be paid. The Company shall have the right to deduct in connection with all Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations. D. No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to prevent the Company or any subsidiary from taking any corporate action which is deemed by the Company or such subsidiary to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Award made under the Plan. No employee, beneficiary or other person shall have any claim against the Company or any subsidiary as a result of any such action. E. Restrictions on Transfer. An Award shall not be transferable otherwise than by will or the laws of descent and distribution and may be exercisable during the lifetime of the Holder only by such Holder or the Holder's guardian or legal representative. F. Rule 16b-3. It is intended that the Plan and any grant of an Award made to a person subject to Section 16 of the 1934 Act meet all of the requirements of Rule 16b-3. If any provision of the Plan or any such Award would disqualify the Plan or such Award under, or would otherwise not comply with, Rule 16b-3, such provision or Award shall be construed or deemed amended to conform to Rule 16b-3. G. Governing Law. This Plan shall be construed in accordance with the laws of the State of Texas. 9 10 NONSTATUTORY STOCK OPTION AGREEMENT AGREEMENT made as of the ______ day of ________________, 19___, between BETTIS CORPORATION, a Delaware corporation (the "Company") and _______________________ _______________________________________ ("Employee"). To carry out the purposes of the BETTIS CORPORATION 1994 STOCK INCENTIVE PLAN (the "Plan"), by affording Employee the opportunity to purchase shares of common stock of the Company ("Stock"), and in consideration of the mutual agreements and other matters set forth herein and in the Plan, the Company and Employee hereby agree as follows: 1. GRANT OF OPTION. The Company hereby irrevocably grants to Employee the right and option ("Option") to purchase all or any part of an aggregate of ______ shares of Stock, on the terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by reference as a part of this Agreement. This Option shall not be treated as an incentive stock option within the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code"). 2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the exercise of this Option shall be $_______ per share, which has been determined to be not less than 50% of the fair market value of the Stock at the date of grant of this Option. For all purposes of this Agreement, fair market value of Stock shall be determined in accordance with the provisions of the Plan. 3. EXERCISE OF OPTION. Subject to the earlier expiration of this Option as herein provided, this Option may be exercised, by written notice to the Company at its principal executive office addressed to the attention of its Chief Executive Officer, at any time and from time to time after the date which is six months from the date of grant hereof (unless earlier exercise is permitted pursuant to paragraph IX of the Plan), but, except as otherwise provided below, this Option shall not be exercisable for more than a percentage of the aggregate number of shares offered by this Option determined by the number of full years from the date of grant hereof to the date of such exercise, in accordance with the following schedule:
PERCENTAGE OF SHARES NUMBER OF FULL YEARS THAT MAY BE PURCHASED -------------------- --------------------- Less than __ year 0% __ year __% __ years __% __ years __% __ years __% __ years or more 100%
This Option may be exercised only while Employee remains an employee of the Company and will terminate and cease to be exercisable upon Employee's termination of employment with the Company, except that: (a) If Employee's employment with the Company terminates by reason of disability (within the meaning of section 22(e)(3) of the Code), this Option may be exercised in full by Employee (or Employee's estate or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the 11 death of Employee) at any time during the period of one year following such termination. (b) If Employee dies while in the employ of the Company, Employee's estate, or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Employee, may exercise this Option in full at any time during the period of one year following the date of Employee's death. (c) If Employee's employment with the Company terminates for any reason other than as described in (a) or (b) above, unless Employee voluntarily terminates without the written consent of the Company, this Option may be exercised by Employee at any time during the period of three months following such termination, or by Employee's estate (or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Employee) during a period of one year following Employee's death if Employee dies during such three-month period, but in each case only as to the number of shares Employee was entitled to purchase hereunder upon exercise of this Option as of the date Employee's employment so terminates. This Option shall not be exercisable in any event after the expiration of ten years from the date of grant hereof. Except as provided in Paragraph 4, the purchase price of shares as to which this Option is exercised shall be paid in full at the time of exercise (a) in cash (including check, bank draft or money order payable to the order of the Company), (b) by delivering to the Company shares of Stock having a fair market value equal to the purchase price, or (c) any combination of cash or Stock. No fraction of a share of Stock shall be issued by the Company upon exercise of an Option or accepted by the Company in payment of the purchase price thereof; rather, Employee shall provide a cash payment for such amount as is necessary to effect the issuance and acceptance of only whole shares of Stock. Unless and until a certificate or certificates representing such shares shall have been issued by the Company to Employee, Employee (or the person permitted to exercise this Option in the event of Employee's death) shall not be or have any of the rights or privileges of a shareholder of the Company with respect to shares acquirable upon an exercise of this Option. 4. CASHLESS EXERCISE. Employee (or the person permitted to exercise this Option in the event of Employee's death) may direct, in a properly executed written notice, an immediate market sale or margin loan respecting all or any part of the shares of Stock to which he is entitled upon exercise of this Option pursuant to an extension of credit by the Company, on an interest-free basis, to the Employee of the purchase price. In such event, the Company shall deliver the specified number of shares of Stock directly to the broker specified in the notice and shall accept payment of the purchase price in cash or by check from such broker on behalf of the Employee and shall take all action necessary to comply with the provisions of the applicable Regulations of the Securities Exchange Act of 1934 and with such additional rules and regulations as may be applicable. Notwithstanding the foregoing, the Company shall not be required to comply with, and may unilaterally terminate, the provisions of this Paragraph 4 if, as a result of a change in the accounting rules and regulations applicable to the Company, or the interpretation thereof, compliance with the provisions of this Paragraph 4 will result in the imposition of substantial adverse financial reporting requirements on the Company. 5. WITHHOLDING OF TAX. To the extent that the exercise of this Option or the disposition of shares of Stock acquired by exercise of this Option results in compensation income to Employee for federal or state income tax purposes, Employee shall deliver to the 12 Company at the time of such exercise or disposition such amount of money or shares of Stock as the Company may require to meet its obligation under applicable tax laws or regulations, and, if Employee fails to do so, the Company is authorized to withhold from any cash or Stock remuneration then or thereafter payable to Employee any tax required to be withheld by reason of such resulting compensation income. Upon an exercise of this Option, the Company is further authorized in its discretion to satisfy any such withholding requirement out of any cash or shares of Stock distributable to Employee upon such exercise. 6. STATUS OF STOCK. The Company intends to register for issuance under the Securities Act of 1933, as amended (the "Act") the shares of Stock acquirable upon exercise of this Option, and to keep such registration effective throughout the period this Option is exercisable. In the absence of such effective registration or an available exemption from registration under the Act, issuance of shares of Stock acquirable upon exercise of this Option will be delayed until registration of such shares is effective or an exemption from registration under the Act is available. The Company intends to use its best efforts to ensure that no such delay will occur. In the event exemption from registration under the Act is available upon an exercise of this Option, Employee (or the person permitted to exercise this Option in the event of Employee's death or incapacity), if requested by the Company to do so, will execute and deliver to the Company in writing an agreement containing such provisions as the Company may require to assure compliance with applicable securities laws. Employee agrees that the shares of Stock which Employee may acquire by exercising this Option will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable securities laws, whether federal or state. Employee also agrees (i) that the certificates representing the shares of Stock purchased under this Option may bear such legend or legends as the Committee appointed by the Board of Directors of the Company to administer the Plan (the "Committee") deems appropriate in order to assure compliance with applicable securities laws, (ii) that the Company may refuse to register the transfer of the shares of Stock purchased under this Option on the stock transfer records of the Company if such proposed transfer would in the opinion of counsel satisfactory to the Company constitute a violation of any applicable securities law, and (iii) that the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the shares of Stock purchased under this Option. 7. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee shall be considered to be in the employment of the Company as long as Employee remains an employee of either the Company, a parent or subsidiary corporation (as defined in section 424 of the Code) of the Company, or a corporation or a parent or subsidiary of such corporation assuming or substituting a new option for this Option. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Committee, and its determination shall be final. 8. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under Employee. 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS. 3 13 IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer thereunto duly authorized, and Employee has executed this Agreement, all as of the day and year first above written. BETTIS CORPORATION BY: ----------------------------------------- -------------------------------------------- EMPLOYEE 4 EX-4.8 3 BETTIS CORPORATION 1994 NONEMPLOYEE DIRECTORS PLAN 1 EXHIBIT 4.8 BETTIS CORPORATION 1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN I. PURPOSE OF THE PLAN The BETTIS CORPORATION 1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN (the "Plan") is intended to promote the interests of BETTIS CORPORATION, a Delaware corporation (the "Company"), and its stockholders by helping to award and retain highly-qualified independent directors, and allowing them to develop a sense of proprietorship and personal involvement in the development and financial success of the Company. Accordingly, the Company shall grant to directors of the Company who are not employees of the Company or any of its subsidiaries ("Nonemployee Directors") the option ("Option") to purchase shares of the common stock of the Company ("Stock"), as hereinafter set forth. Options granted under the Plan shall be options which do not constitute incentive stock options, within the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended. II. OPTION AGREEMENTS Each Option shall be evidenced by a written agreement in the form attached to the Plan. III. ELIGIBILITY OF OPTIONEE Options may be granted only to individuals who are Nonemployee Directors of the Company. Each Nonemployee Director who serves in such capacity or is elected to the Board of Directors of the Company (the "Board") on the first day the Stock is listed and traded on the NASDAQ-National Market System (the "First Grant Date") shall receive, as of such date and without the exercise of the discretion of any person or persons, an Option exercisable for 5,000 shares of Stock. Each Nonemployee Director who serves in such capacity or is elected to the Board on the first anniversary of the First Grant Date shall receive, as of such date and without the exercise of the discretion of any person or persons, an Option exercisable for 5,000 shares of Stock (subject to adjustment in the same manner as provided in Paragraph VII hereof with respect to shares of Stock subject to Options then outstanding). Each Nonemployee Director who serves in such capacity or is elected to the Board on the second anniversary of the First Grant Date shall receive, as of such date and without the exercise of the discretion of any person or persons, an Option exercisable for 5,000 shares of Stock (subject to adjustment in the same manner as provided in Paragraph VII hereof with respect to shares of Stock subject to Options then outstanding). If, as of any date that the Plan is in effect, there are not sufficient shares of Stock available under the Plan to allow for the grant to each Nonemployee Director of an Option for the number of shares provided herein, each Nonemployee Director shall receive an Option for his or her pro-rata share of the total number of shares of Stock then available under the Plan. All Options granted under the Plan shall be at the Option price set forth in Paragraph V hereof and shall be subject to adjustment as provided in Paragraph VII hereof. IV. SHARES SUBJECT TO THE PLAN The aggregate number of shares which may be issued under Options granted under the Plan shall not exceed 75,000 shares of Stock. Such shares may consist of authorized but 2 unissued shares of Stock or previously issued shares of Stock reacquired by the Company. Any of such shares which remain unissued and which are not subject to outstanding Options at the termination of the Plan shall cease to be subject to the Plan, but, until termination of the Plan, the Company shall at all times make available a sufficient number of shares to meet the requirements of the Plan. Should any Option hereunder expire or terminate prior to its exercise in full, the shares theretofore subject to such Option may again be subject to an Option granted under the Plan. The aggregate number of shares which may be issued under the Plan shall be subject to adjustment in the same manner as provided in Paragraph VII hereof with respect to shares of Stock subject to Options then outstanding. Exercise of an Option shall result in a decrease in the number of shares of Stock which may thereafter be available, both for purposes of the Plan and for sale to any one individual, by the number of shares as to which the Option is exercised. V. OPTION PRICE The purchase price of Stock issued under each Option shall be the fair market value of Stock subject to the Option as of the date the Option is granted. For all purposes under the Plan, the fair market value of a share of Stock on a particular date shall be equal to the mean of the high and low sales prices of the Stock (i) reported by the NASDAQ-National Market System on that date or (ii) if the Stock is listed on a national stock exchange, reported on the stock exchange composite tape on that date; or, in either case, if no prices are reported on that date, on the last preceding date on which such prices of the Stock are so reported. If the Stock is traded over the counter at the time a determination of its fair market value is required to be made hereunder, its fair market value shall be deemed to be equal to the average between the reported high and low or closing bid and asked prices of Stock on the most recent date on which Stock was publicly traded. In the event Stock is not publicly traded at the time a determination of its value is required to be made hereunder, the determination of its fair market value shall be made by the Board in such manner as it deems appropriate. VI. TERM OF PLAN The Plan shall be effective on the date the Plan is approved by the stockholders of the Company. Except with respect to Options then outstanding, if not sooner terminated under the provisions of Paragraph VIII, the Plan shall terminate upon and no further Options shall be granted after the second anniversary of the First Grant Date. VII. RECAPITALIZATION OR REORGANIZATION A. The existence of the Plan and the Options granted hereunder shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company's capital structure or its business, any merger or consolidation of the Company, any issue of debt or equity securities, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition 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, the Company shall effect a subdivision or consolidation of shares of Stock or the payment of a stock dividend on Stock without receipt of consideration by the Company, 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, 2 3 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. If the Company 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 and class of shares of Stock then covered by such Option, the number and class of shares of stock and securities to which the optionee would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the optionee had been the holder of record of the number of shares of Stock then covered by such Option. D. Any adjustment provided for in Subparagraphs (b) or (c) above shall be subject to any required stockholder action. E. Except as hereinbefore expressly provided, the issuance by the Company 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 the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not 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. VIII. AMENDMENT OR TERMINATION OF THE PLAN The Board in its discretion may terminate the Plan at any time with respect to any shares for which Options have not theretofore been granted. The Board shall have the right to alter or amend the Plan or any part thereof 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; and provided, further, that the Board may not make any alteration or amendment which would materially increase the benefits accruing to participants under the Plan, increase the aggregate number of shares which may be issued pursuant to the provisions of the Plan, change the class of individuals eligible to receive Options under the Plan or extend the term of the Plan, without the approval of the stockholders of the Company. IX. SECURITIES LAWS A. The Company shall not be obligated to issue any Stock pursuant to any Option granted under the Plan at any time when the offering of the shares covered by such Option have not been registered under the Securities Act of 1933, as amended, and such other state and federal laws, rules or regulations as the Company deems applicable and, in the opinion of legal counsel for the Company, there is no exemption from the registration requirements of such laws, rules or regulations available for the offering and sale of such shares. B. It is intended that the Plan and any grant of an Option made to a person subject to Section 16 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), meet all of the requirements of Rule 16b-3, as currently in effect or as hereinafter modified or amended ("Rule 16b-3"), promulgated under the 1934 Act. If any provision of the Plan or any such Option would disqualify the Plan or such Option under, or would otherwise not comply with, Rule 16b-3, such provision or Option shall be construed or deemed amended to conform to Rule 16b-3. 3 4 NONEMPLOYEE DIRECTOR'S STOCK OPTION AGREEMENT AGREEMENT made as of the _____ day of ____________________, 19__, between BETTIS CORPORATION, a Delaware corporation (the "Company"), and _______________________________("Director"). To carry out the purposes of the BETTIS CORPORATION 1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN (the "Plan"), a copy of which is attached hereto as Exhibit A, by affording Director the opportunity to purchase shares of common stock of the Company ("Stock"), and in consideration of the mutual agreements and other matters set forth herein and in the Plan, the Company and Director hereby agree as follows: 1. GRANT OF OPTION. The Company hereby irrevocably grants to Director the right and option ("Option") to purchase all or any part of an aggregate of _____________ shares of Stock, on the terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by reference as a part of this Agreement. This Option shall not be treated as an incentive stock option within the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended. 2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the exercise of this Option shall be $__________________ per share, which has been determined to be not less than the fair market value of the Stock at the date of grant of this Option. For all purposes of this Agreement, fair market value of Stock shall be determined in accordance with the provisions of the Plan. 3. EXERCISE OF OPTION. Subject to the earlier expiration of this Option as herein provided, this Option may be exercised, by written notice to the Company at its principal executive office addressed to the attention of its Chief Executive Officer, at any time and from time to time after the date of grant hereof, but, except as otherwise provided below, this Option shall not be exercisable for more than a percentage of the aggregate number of shares offered by this Option determined by the number of full years from the date of grant hereof to the date of such exercise, in accordance with the following schedule:
PERCENTAGE OF SHARES NUMBER OF FULL YEARS THAT MAY BE PURCHASED -------------------- --------------------- Less than 1 year 20% 1 year but less than 2 years 40% 2 years but less than 3 years 60% 3 years but less than 4 years 80% 4 years or more 100%
Notwithstanding the foregoing, if (i) the Company shall not be the surviving entity in any merger, consolidation or other reorganization (or survives only as a subsidiary of an entity other than a previously wholly- owned subsidiary of the Company), (ii) the Company sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of its assets to any other person or entity (other than a wholly-owned subsidiary of the Company), (iii) the Company is to be dissolved and liquidated, (iv) any person or entity, including a "group" as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, acquires or gains ownership or control (including, without limitation, power to vote) of more than 50% of the outstanding shares of the Company's voting stock (based upon voting power), or (v) as a result of or in connection with a contested election of directors, the persons who were directors of the Company before such election shall cease to constitute a majority of the 5 Board of Directors of the Company (each such event is referred to herein as a "Corporate Change"), then effective as of the earlier of (1) the date of approval by the stockholders of the Company of such merger, consolidation, reorganization, sale, lease or exchange of assets or dissolution or such election of directors or (2) the date of such Corporate Change, this Option shall be exercisable in full. This Option is not transferable by Director otherwise than by will or the laws of descent and distribution, and may be exercised only by Director during Director's lifetime. This Option may be exercised only while Director remains a member of the Board of Directors of the Company (the "Board") and will terminate and cease to be exercisable upon Director's termination of membership on the Board, except that: (a) If Director's membership on the Board terminates by reason of disability, this Option may be exercised in full by Director (or Director's estate or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Director) at any time during the period of one year following such termination. (b) If Director dies while a member of the Board, Director's estate, or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Director, may exercise this Option in full at any time during the period of one year following the date of Director's death. (c) If Director's membership on the Board terminates for any reason other than as described in (a) or (b) above, this Option may be exercised by Director at any time during the period of three months following such termination, or by Director's estate (or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Director) during a period of one year following Director's death if Director dies during such three-month period, but in each case only as to the number of shares Director was entitled to purchase hereunder upon exercise of this Option as of the date Director's membership on the Board so terminates. This Option shall not be exercisable in any event after the expiration of ten years from the date of grant hereof. The purchase price of shares as to which this Option is exercised shall be paid in full at the time of exercise (A) in cash (including check, bank draft or money order payable to the order of the Company), (B) by delivering to the Company shares of Stock having a fair market value equal to the purchase price, or (C) any combination of cash or Stock. No fraction of a share of Stock shall be issued by the Company upon exercise of an Option or accepted by the Company in payment of the purchase price thereof; rather, Director shall provide a cash payment for such amount as is necessary to effect the issuance and acceptance of only whole shares of Stock. Unless and until a certificate or certificates representing such shares shall have been issued by the Company to Director, Director (or the person permitted to exercise this Option in the event of Director's death) shall not be or have any of the rights or privileges of a stockholder of the Company with respect to shares acquirable upon an exercise of this Option. 4. WITHHOLDING OF TAX. To the extent that the exercise of this Option or the disposition of shares of Stock acquired by exercise of this Option results in compensation income to Director for federal or state income tax purposes, Director shall deliver to the Company at the time of such exercise or disposition such amount of money or shares of Stock as the Company may require to meet its obligation under applicable tax laws or regulations, 2 6 and, if Director fails to do so, the Company is authorized to withhold from any cash or Stock remuneration then or thereafter payable to Director any tax required to be withheld by reason of such resulting compensation income. Upon an exercise of this Option, the Company is further authorized in its discretion to satisfy any such withholding requirement out of any cash or shares of Stock distributable to Director upon such exercise. 5. STATUS OF STOCK. The Company intends to register for issuance under the Securities Act of 1933, as amended (the "Act"), the shares of Stock acquirable upon exercise of this Option, and to keep such registration effective throughout the period this Option is exercisable. In the absence of such effective registration or an available exemption from registration under the Act, issuance of shares of Stock acquirable upon exercise of this Option will be delayed until registration of such shares is effective or an exemption from registration under the Act is available. The Company intends to use its best efforts to ensure that no such delay will occur. In the event exemption from registration under the Act is available upon an exercise of this Option, Director (or the person permitted to exercise this Option in the event of Director's death or incapacity), if requested by the Company to do so, will execute and deliver to the Company in writing an agreement containing such provisions as the Company may require to assure compliance with applicable securities laws. Director agrees that the shares of Stock which Director may acquire by exercising this Option will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable federal or state securities laws. Director also agrees (i) that the certificates representing the shares of Stock purchased under this Option may bear such legend or legends as the Company deems appropriate in order to assure compliance with applicable securities laws, (ii) that the Company may refuse to register the transfer of the shares of Stock purchased under this Option on the stock transfer records of the Company if such proposed transfer would in the opinion of counsel satisfactory to the Company constitute a violation of any applicable securities law and (iii) that the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the shares of Stock purchased under this Option. 6. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under Director. 7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS. IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer thereunto duly authorized, and Director has executed this Agreement, all as of the day and year first above written. BETTIS CORPORATION By: ------------------------------------- Director 3 EX-4.9 4 FORMS OF STOCK OPTION ASSUMPTION 1 EXHIBIT 4.9 DANIEL INDUSTRIES, INC. STOCK OPTION ASSUMPTION (NONSTATUTORY STOCK OPTION) This Assumption is effective as of December 12, 1996, by Daniel Industries, Inc., a Delaware corporation ("Daniel"), with respect to the non-incentive stock option(s) granted under the Bettis Corporation 1994 Nonemployee Directors' Stock Option Plan (the "Plan") and pursuant to one or more Nonstatutory Stock Option Agreements (the "Bettis Option Agreement(s)") to _________________________ (the "Optionee"). As granted, the Bettis Option Agreement(s) represented rights to purchase a number of shares of Common Stock, $.01 par value, of Bettis Corporation, a Delaware corporation ("Bettis"), set forth on Exhibit A hereto at the exercise price set forth opposite such number of shares (the "Bettis Option(s)"). 1. Assumption of Options. In connection with the merger (the "Merger") of Blue Acquisition, Inc., a Delaware corporation and wholly owned subsidiary of Daniel ("Sub"), with and into Bettis pursuant to the Agreement and Plan of Merger dated September 17, 1996 (the "Merger Agreement"), among Daniel, Sub and Bettis, and upon the execution of this Assumption, Daniel hereby assumes the obligations of Bettis under the Bettis Option(s), to the extent such Bettis Option is unexercised and outstanding at the effective time of the Merger (the "Effective Time"). 2. Exercisability of Assumed Options. In connection with the assumption by Daniel, the Optionee's Bettis Option(s) shall be exercisable only on the same terms and conditions as set forth in the Bettis Option Agreement(s), except that: (a) Such Bettis Option shall henceforth be exercisable for a number of shares of Daniel Common Stock equal to the number of shares of Bettis Common Stock subject to such Bettis Option immediately prior to the Effective Time multiplied by 0.58 (rounded up to the nearest whole share) and will be subject to adjustment as provided in the respective Bettis Option Agreement after the Effective Time; (b) The exercise price per share for the shares of Daniel Common Stock issuable upon exercise of a Bettis Option shall be determined by dividing the exercise price per share under the Bettis Option in effect immediately prior to the Effective Time by 0.58, and rounding the exercise price per share thus determined up to the next higher whole cent; and (c) The Bettis Option shall be exercisable in full in accordance with the terms of the Bettis Option Agreement. 3. Amendment of Bettis Option Agreements. The Bettis Option Agreement(s) and the Plan are hereby deemed amended so that: except as otherwise specifically set forth above, all references regarding shares of Bettis Common Stock shall be to shares of Daniel Common Stock; all references to Bettis shall be to Daniel; all notices to Daniel shall be addressed to the Secretary of Daniel at 9753 Pine Lake Drive, Houston, Texas 77055; and all references regarding service by Optionee shall be to service as a director of Daniel. 2 4. Definitions. All capitalized terms used herein shall have the meanings ascribed to them in the Merger Agreement, unless otherwise defined herein. Dated as of December 12, 1996 DANIEL INDUSTRIES, INC. By -------------------------------------- Name: --------------------------------- Title: -------------------------------- The Optionee hereby acknowledges, consents to and agrees with the terms of the foregoing Assumption and agrees that his Bettis Option Agreement(s) shall be amended and modified as provided in such Assumption. ------------------------------ 2 3 DANIEL INDUSTRIES, INC. STOCK OPTION ASSUMPTION (NONSTATUTORY STOCK OPTION) This Assumption is executed as of December 12, 1996, by Daniel Industries, Inc., a Delaware corporation ("Daniel"), with respect to the non-incentive stock option held by Optionee~ (the "Optionee"), which as granted represented the right to purchase Shares~ shares of Common Stock, $.01 par value, of Bettis Corporation, a Delaware corporation ("Bettis"), at an exercise price of $Price~ per share (the "Bettis Option") pursuant a Nonstatutory Stock Option Agreement dated as of Date~ (the "Bettis Option Agreement"). 1. Assumption of Option. In connection with the merger (the "Merger"), effective on the execution date of this Assumption, of Blue Acquisition, Inc., a Delware corporation and wholly owned subsidiary of Daniel ("Sub"), with and into Bettis pursuant to the Agreement and Plan of Merger dated September 17, 1996 (the "Merger Agreement"), among Daniel, Sub and Bettis, Daniel hereby assumes the obligations of Bettis under the Bettis Option, to the extent such Bettis Option is unexercised and outstanding at the effective time of the Merger (the "Effective Time").. 2. Exercisability of Assumed Option. In connection with the assumption by Daniel, Optionee's Bettis Option shall be exercisable only on the same terms and conditions as set forth in the Bettis Option Agreement, except that: (a) The Bettis Option shall henceforth be exercisable for a number of shares of Daniel Common Stock equal to the number of shares of Bettis Common Stock subject to the Bettis Option immediately prior to the Effective Time multiplied by 0.58 (rounded up to the nearest whole share) and will be subject to adjustment as provided in the Bettis Option Agreement after the Effective Time; and (b) The exercise price per share for the shares of Daniel Common Stock issuable upon exercise of the Bettis Option shall be determined by dividing the exercise price per share under the Bettis Option in effect immediately prior to the Effective Time by 0.58, and rounding the exercise price per share thus determined up to the next higher whole cent. 3. Amendment of Bettis Option Agreement. The Bettis Option Agreement and the plan under which the Bettis Option Agreement was issued are hereby deemed amended so that: except as otherwise specifically set forth above, all references regarding shares of Bettis Common Stock shall be to shares of Daniel Common Stock; all references to Bettis shall be to Daniel; all notices to Daniel shall be addressed to the_____________ of Daniel at 9753 Pine Lake Drive, Houston, Texas 77055; and all references regarding the employment of Optionee shall be to employment by Daniel or a subsidiary of Daniel. 4 4. Definitions. All capitalized terms used herein shall have the meanings ascribed to them in the Merger Agreement, unless otherwise defined herein. Date: December 12, 1996 DANIEL INDUSTRIES, INC. By -------------------------------------- Name: --------------------------------- Title: -------------------------------- The Optionee hereby acknowledges, consents to and agrees with the terms of the foregoing Assumption and agrees that his Bettis Option Agreement shall be amended and modified as provided in such Assumption. ------------------------------ Optionee 2 EX-5.1 5 OPINION OF THOMAS L. SIVAK 1 EXHIBIT 5.1 [LETTERHEAD OF THOMAS L. SIVAK] December 13, 1996 Daniel Industries, Inc. 9753 Pine Lake Drive Houston, Texas 77055 Attention: Michael R. Yellin Gentlemen: I have acted as counsel for Daniel Industries, Inc., a Delaware corporation (the "Company"), in connection with its filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") with respect to the registration under the Securities Act of 1933, as amended, of 452,900 shares of the Company's common stock, $1.25 par value per share, including the preferred share purchase rights associated therewith (collectively, the "Shares"), to be offered upon the terms and subject to the conditions set forth in the Bettis Corporation 1994 Stock Incentive Plan (including the form of Nonstatutory Stock Option Agreement used in connection therewith), the Bettis Corporation 1994 Nonemployee Directors' Stock Option Plan (including the form of Nonemployee Director's Stock Option Agreement used in connection therewith) and the form of Stock Option Assumption whereby the Company agrees to assume the options and to substitute shares for Bettis common stock (collectively, the "Option Documents"). I have examined (i) the Certificate of Incorporation and By-Laws of the Company, each as amended to date, (ii) the Option Documents, (iii) the Registration Statement, and (iv) such certificates, statutes and other instruments and documents as I considered appropriate for purposes of the opinions hereafter expressed. In connection with this opinion, I have assumed the authenticity and completeness of all records, certificates and other instruments submitted to me as originals, the conformity to original documents of all records, certificates and other instruments submitted to us as copies, the authenticity and completeness of the originals of those records, certificates and other instruments submitted to us as copies and the correctness of all statements of fact contained in all records, certificates and other instruments that I have examined. Based upon and subject to the foregoing, I am of the opinion that the Shares have been duly authorized and, when issued in accordance with the terms of the Option Documents, will be validly issued, fully paid and nonassessable. 2 Forms S-8 December 13, 1996 Page 2 I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name under the caption "Item 5. Interests of Named Experts and Counsel" in the Registration Statement. Very truly yours, Thomas L. Sivak 2 EX-23.2 6 CONSENT OF PRICE WATERHOUSE LLP 1 EXHIBIT NO. 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 15, 1996, appearing on page 15 of Daniel Industries, Inc.'s Annual Report on Form 10-K for the fiscal year ended September 30, 1996. PRICE WATERHOUSE LLP Houston, Texas December 13, 1996 -----END PRIVACY-ENHANCED MESSAGE-----