-----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, Ip46VN7UCsO8TuAvdicNUT8jVo1FcccvPH5O4gHJWj/rZ/7fBcW1KwYguUM6fSGg rPPtvzxM7zG/IBpSCrvPcg== 0000806388-99-000041.txt : 19990923 0000806388-99-000041.hdr.sgml : 19990923 ACCESSION NUMBER: 0000806388-99-000041 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990922 EFFECTIVENESS DATE: 19990922 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NICHOLS RESEARCH CORP /AL/ CENTRAL INDEX KEY: 0000806388 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING SERVICES [8711] IRS NUMBER: 630713665 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87579 FILM NUMBER: 99715288 BUSINESS ADDRESS: STREET 1: 4090 SOUTH MEMORIAL PARKWAY STREET 2: P.O. 400002 CITY: HUNTSVILLE STATE: AL ZIP: 35802-1326 BUSINESS PHONE: 2568831140 S-8 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Nichols Research Corporation -------------------------------------------------------------- (Exact name of issuer as specified in its charter) Delaware 63-0713665 - ------------------------------------------------------------------------------- (State or other jurisdiction of (IRS Employer Identification No.) incorporation or organization) 4090 Memorial Parkway, South, Huntsville, Alabama 35815-1502 - ------------------------------------------------------------------------------- (Address of principal executive offices, including Zip Code) Nichols Research Corporation 1997 Stock Option Plan - ------------------------------------------------------------------------------- (Full Title of the Plan) Chris H. Horgen Nichols Research Corporation 4090 Memorial Parkway, South Huntsville, Alabama 35815-1502 - ------------------------------------------------------------------------------- (Name and Address of Agent for Service) (256)883-1140 - ------------------------------------------------------------------------------- (Telephone Number, including area code, of agent for service) - ------------------------------------------------------------------------------- The Registrant requests that the Registration Statement become effective immediately upon filing pursuant to Securities Act Rule 462.
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------ Title of Proposed Maximum Proposed Maximum Securities to Amount to be Offering Price Per Aggregate Offering Amount of be Registered Registered Share (1) Price(1) Registration Fee - ----------------- ---------------- -------------------- ------------------- ------------------ Common 1,300,000 $25.00 $32,500,000 $9,035 Stock $.01 par shares value - ------------------------------------------------------------------------------------------------------------------------
(1)This calculation, which is made solely for the purpose of determining the amount of the registration fee, is made pursuant to Rule 457 and is based on a price of $25.00 per share, the average of the high and low price of a share of common stock on September 15, 1999, as reported on the Nasdaq National Market. - 2 - PART I Information Required in Section 10(a) Prospectus Item 1. Plan Information. This Registration Statement relates to the registration of 1,300,000 shares of $.01 par value common stock of Nichols Research Corporation (the "Common Stock") to be sold pursuant to the exercise of stock options granted to employees of Nichols Research Corporation (the "Company") under the Nichols Research Corporation 1997 Stock Option Plan (the "Plan"). Documents containing the information specified in Part I of Form S-8 promulgated by the Securities and Exchange Commission (the "Commission") will be sent or given to employees as specified by Commission Rule 428(b). Item 2. Registrant Information and Employee Plan Annual Information. See response to Item 1 above. PART II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference. The following documents filed by the Company are hereby incorporated by reference as of their respective dates: 1) the Company's Annual Report on Form 10-K for the year ended August 31, 1998; and the Company's Quarterly Reports on Form 10-Q for the quarters ended November 30, 1998, February 28, 1999, and May 31, 1999; 2) the description of the Company's Common Stock contained in the Company's registration statement on Form 8-A filed with the Commission on January 14, 1987, as amended by Form 8 filed with the Commission on August 18, 1989; 3) the Company's Current Report on Form 8-K dated January 15, 1999, and filed with the Commission on February 5, 1999; and 4) the Company's Current Report on Form 8-K dated September 19, 1999, and filed with the Commission on September 20, 1999. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date hereof and prior to 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 herein and to be a part hereof from the date of filing such documents. - 3 - Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The legality of the Common Stock issuable upon the exercise of options granted under the Plan has been passed upon for the Company by the law firm of Lanier Ford Shaver & Payne, P.C., 200 West Court Square, Suite 5000, Huntsville, Alabama 35801. John R. Wynn, a member-stockholder of Lanier Ford Shaver & Payne, P.C., is a director of the Company. As of July 31, 1999, six attorneys of Lanier Ford Shaver & Payne, P.C., including Mr. Wynn, beneficially owned 33,696 shares of the Company's Common Stock. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law permits indemnification by the Company of any director, officer, employee or agent of the Company or person who is serving or was serving at the Company's request 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 the defense of any threatened, pending or completed action (whether civil, criminal, administrative or investigative), to which he is or may be a party by reason of having been such director, officer, employee or agent, provided that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful. The Company also has the power under Section 145 to indemnify persons set forth above from threatened, pending or completed actions or suits by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person was a director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or enterprise against expenses actually and reasonably incurred by him in connection with the defense or settlement of the action 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 Company, except that no indemnification can be made with regard to any claim, issue or matter as to which the person has been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless and only to the extent that the Delaware Court of Chancery or the court in which the action was brought determines that the person was fairly and reasonably entitled to indemnity. Any indemnification (unless ordered by a court) must be made by the Company only as authorized in the specific case upon a determination that indemnification of the person is proper in the circumstances because he has met the applicable standards of conduct. The determination must be made by the Board of Directors by a majority vote of a quorum consisting of directors who are not parties to the action, or if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, by independent counsel in a written opinion, or by the stockholders. The Company may pay the expenses of an action in advance of final disposition if authorized by the Board of Directors in a specific case, upon receipt of an undertaking by the person to be indemnified to repay any such advancesunless it shall ultimately be determined that such person is entitled to be indemnified by the Company as authorized by law. - 4 - Article Nine of the Company's By-laws provides for indemnification of the Company's directors, officers, employees or agents to the extent permitted by Section 145 of the Delaware General Corporation Law. Article Nine of the Company's By-laws further provides that the Company may purchase and maintain insurance on behalf of those persons described above as eligible for indemnification for liability arising out of such person's duties or status with the Company whether or not indemnification in respect of such liability would be permissible. The Company has in effect an officers and directors liability insurance policy with National Union Fire Insurance Company. The policy provides indemnity to the directors and officers of the Company for the loss arising from any claim by reason of a wrongful act where there is no corporate indemnification. The insurance provides for the Company to be reimbursed for any indemnification it may be required by statute or the Company's By-laws to make to any of its directors and officers in connection with a claim by reason of a wrongful act. Pursuant to exclusions, the policy covers negligent acts, errors, omissions or breach of duty by a director or officer. The principal exclusions from coverage include the following: (i) claims involving various violations of Section 16(b) of the Securities Exchange Act of 1934; (ii) dishonest acts; and (iii) libel, slander, or non-monetary damages. The policy has no deductible amount per director or officer for each loss. A $500,000 deductible self-insurance retention applies to the Company. The limit of liability under the policy is $5,000,000 in the aggregate annually in excess of deductibles and participations. The Plan provides that in addition to such other rights of indemnification as they may have as directors or as members of the committee administering the Plan, the members of the Stock Option Plan Committee shall be indemnified by the Company against the reasonable expenses, including attorney's fees, actually and necessarily incurred in connection with the defense of any action, suit, or proceeding, or in connection with any appeal therein to which they or any of them may be a party by reason of any action taken or failure to act under, or in connection, with the Plan or options granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any action, suit, or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit, or proceeding, that such Committee member is liable for negligence or misconduct in the performance of his duties, provided that within sixty (60) days after institution of any such action, suit, or proceeding, a Committee member, in writing offers the Company the opportunity at its own expense to handle and defend the same. Item 7. Exemption from Registration Claimed. Not applicable. - 5 - Item 8. Exhibits. Exhibit No. Description 5 Opinion and Consent of Lanier Ford Shaver & Payne, P.C. 23.1 Consent of Lanier Ford Shaver & Payne, P.C. (included in Exhibit 5) 23.2 Consent of Ernst & Young, LLP 99 Nichols Research Corporation 1997 Stock Option Plan (1) (1) Incorporated by reference to exhibit filed with the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 1998, under the Securities Exchange Act of 1934, File No. 0-15295. Item 9. Undertakings. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act. (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be 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% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. - 6 - (iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed 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. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 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 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 the initial bona fide offering thereof. 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. - 7 - SIGNATURES The Registrant. 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 Huntsville, State of Alabama, on the 20th day of September, 1999. NICHOLS RESEARCH CORPORATION Chris H. Horgen By:_________________________________ Chris H. Horgen Chairman of the Board 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 Title Date Chris H. Horgen _________________________ Chief Executive Officer and September 20, 1999 Chris H. Horgen Chairman of the Board Charles A. Leader _________________________ President, Chief Operating Officer September 20, 1999 Charles A. Leader and Director Roy J. Nichols _________________________ Senior Vice President and Director September 20, 1999 Roy J. Nichols Patsy L. Hattox _________________________ Chief Administrative Officer, September 20, 1999 Patsy L. Hattox Corporate Vice President, Secretary and Director Roger P. Heinish _________________________ Director September 20, 1999 Roger P. Heinish - 8 - John R. Wynn _________________________ Director September 20, 1999 John R. Wynn Michael J. Mruz _________________________ Director September 20, 1999 Michael J. Mruz _________________________ Director William E. Odom James R. Thompson, Jr. _________________________ Director September 20, 1999 James R. Thompson, Jr. _________________________ Director Phil E. DePoy Thomas L. Patterson _________________________ Chairman of the Board of Nichols September 20, 1999 Thomas L. Patterson TXEN Corporation and Director Daniel W. McGlaughlin _________________________ Director September 20, 1999 Daniel W. McGlaughlin _________________________ Director David Friend Allen E. Dillard _________________________ Corporate Vice President, Chief September 20, 1999 Allen E. Dillard Financial Officer and Corporate Treasurer (Principal Financial and Accounting Officer)
- 9 - EXHIBIT INDEX Exhibit No. Description 5 Opinion and Consent of Lanier Ford Shaver & Payne, P.C. 23.1 Consent of Lanier Ford Shaver & Payne, P.C. (included in Exhibit 5) 23.2 Consent of Ernst & Young, LLP 99 Nichols Research Corporation 1997 Stock Option Plan (1) (1) Incorporated by reference to exhibit filed with the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 1998, under the Securities Exchange Act of 1934, File No. 0-15295. - 10 - EX-5 2 OPINION OF LEGAL COUNSEL RE: LEGALITY LANIER FORD SHAVER & PAYNE, P.C. P.O. BOX 2087 HUNTSVILLE, ALABAMA 35804 September 21, 1999 Nichols Research Corporation 4090 Memorial Parkway, South Huntsville, Alabama 35815-1502 Ladies and Gentlemen: As counsel for Nichols Research Corporation (herein called the "Corporation"), we are familiar with the records of the proceedings by which it was organized, the records of the proceedings by which its Certificate of Incorporation has from time to time been amended, the records of the proceedings by which the shares of its common stock have from time to time been issued, the proceedings by which the Nichols Research Corporation 1997 Stock Option Plan (herein called the "Plan") which were authorized and adopted by the Board of Directors of the Corporation, and the proceedings by which the Plan were authorized and approved by the stockholders of the Corporation. We have also reviewed such documents and records as we have deemed necessary to enable us to express an informed opinion with respect to the matters covered hereby. Based upon the foregoing, we are of the opinion that: 1. The Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and 2. The 1,300,000 shares of common stock of the par value of one cent ($.01) each of the Corporation that may be issued and sold from time to time upon the exercise of options granted in accordance with the Plan will be duly authorized for issuance and will, when issued, sold and paid for in accordance with the Plan and for a price not less than one cent ($.01) per share, be validly issued, fully paid and nonassessable, and no personal liability will attach to the holders thereof under the laws of the State of Delaware in which the Corporation is incorporated and in the State of Alabama in which its principal place of business is located. We hereby consent to the use of our name in the Registration Statement (Form S-8), pertaining to the Plan as counsel who has passed upon the legality of the shares of common stock that may be issued and sold under the Plan, and to the use of this opinion as a part of such Registration Statement as required by Section 7 of the Securities Act of 1933, as amended. Sincerely, LANIER FORD SHAVER & PAYNE P.C. Elizabeth W. Abel By:_______________________________ Elizabeth W. Abel EWA/sb EX-23 3 Exhibit 23.2 Consent of Ernst & Young LLP, Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8, No. 333-___________) pertaining to the Nichols Research Corporation 1997 Stock Option Plan of our report dated October 7, 1998, except for the restatement related to acquired in-process technology referred to in Note 11, as to which the date is January 7, 1999, with respect to the consolidated financial statements of Nichols Research Corporation included in its Annual Report (Form 10-K) for the year ended August 31, 1998, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Birmingham, Alabama September 20, 1999 -----END PRIVACY-ENHANCED MESSAGE-----