SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nichols Research Corporation
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(Exact name of Registrant as specified in its charter)
Delaware 63-0713665
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(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) No.)
4040 Memorial Parkway, South, Huntsville, Alabama 35802-1326
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(Address of principal executive offices, including Zip Code)
Nichols TXEN Corporation 1996 Incentive Stock Option Plan
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(Full Title of the Plan)
Michael J. Mruz
Nichols Research Corporation
4040 Memorial Parkway, South
Huntsville, Alabama 35802-1326
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(Name and Address of Agent for Service)
(256)883-1140
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(Telephone Number, including area code, of agent for service)
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The Registrant requests that the Registration Statement become
effective immediately upon filing pursuant to Securities Act Rule
462.
CALCULATION OF REGISTRATION FEE
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Title of Proposed
Securities Amount Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
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Common 37,220 $23.9375 $890,954 $263
Stock, shares
$.01 par
value(2)
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(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 $23.9375 per share, the average of the high and low prices of a share
of common stock on July 27, 1998, as reported on the Nasdaq National Market.
(2) Pursuant to an Agreement of Merger dated August 27, 1997, among
Registrant, TXEN, Inc. (now known as Nichols TXEN Corporation and hereinafter
referred to as "Nichols TXEN"), Nichols SELECT Corporation, and the
shareholders of Nichols TXEN, Registrant assumed, effective as of August 31,
1997, all of the outstanding options to purchase common stock of Nichols TXEN
under the Nichols TXEN Corporation 1996 Incentive Stock Option Plan, and such
options became exercisable to purchase shares of Registrant's Common Stock,
with appropriate adjustments to the number of shares and exercise price of each
assumed option.
PART I
Information Required in the Section 10(a) Prospectus
Item 1. PLAN INFORMATION.
This Registration Statement relates to the registration of 37,220 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 TXEN Corporation (formerly known as TXEN, Inc., and
hereinafter referred to as "Nichols TXEN") under the Nichols TXEN Corporation
1996 Incentive Stock Option Plan (the "Plan"). Documents containing the
information specified in Part I of Form S-8 promulgated by the Securities
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 Nichols Research Corporation (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, 1997,
and the Company's Quarterly Reports on Form 10-Q for the quarters ended November
30, 1997, February 28, 1998, and May 31, 1998.
2)The description of the Company's Common Stock contained in the Company's 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 August 31, 1997, and filed
with the Commission on September 11, 1997, as amended by Form 8-K/A filed with
the Commission on November 10, 1997.
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.
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 27, 1998, four
attorneys of Lanier Ford Shaver & Payne, P.C., including Mr. Wynn, beneficially
owned 23,773 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 any
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 advances unless it shall ultimately be determined that such person is
entitled to be indemnified by the Company as authorized by law.
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 Royal 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit No. Description
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4 Nichols TXEN Corporation 1996
Incentive Stock Option Plan
5 Opinion and Consent of Lanier Ford
Shaver & Payne, P.C.
23.1 Consent of Ernst & Young, LLP,
Independent Auditors
23.4 Consent of Lanier Ford Shaver &
Payne, P.C. (included in Exhibit 5)
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 of 1933.
(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.
(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
Securities Exchange Act of 1934 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 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
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
27th day of July, 1998.
NICHOLS RESEARCH CORPORATION
Michael J. Mruz
By:__________________________________
Michael J. Mruz
Pursuant to the requirements of the Securities Act of 1933, this Registra-
tion Statement has been signed by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
Chris H. Horgen
______________________ Chairman of the Board (Principal July 27, 1998
Chris H. Horgen Executive Officer)
Michael J. Mruz
______________________ Chief Executive Officer, President, July 27, 1998
Michael J. Mruz Chief Operating Officer and Director
______________________ Senior Vice President and Vice-
Roy J. Nichols Chairman of the Board
Patsy L. Hattox
______________________ Chief Administrative Officer, July 27, 1998
Patsy L. Hattox Corporate Vice President, Secretary
and Director
Roger P. Heinish
______________________ Director July 27, 1998
Roger P. Heinish
John R. Wynn
______________________ Director July 27, 1998
John R. Wynn
William E. Odom
______________________ Director July 27, 1998
William E. Odom
James R. Thompson, Jr.
______________________ Director July 27, 1998
James R. Thompson, Jr.
Phil E. DePoy
______________________ Director July 27, 1998
Phil E. DePoy
Thomas L. Patterson
______________________ President of Nichols TXEN July 27, 1998
Thomas L. Patterson Corporation and Director
Daniel W. McLaughlin
______________________ Director July 27, 1998
Daniel W. McLaughlin
______________________ Director
David Friend
Allen E. Dillard
______________________ Chief Financial Officer and July 27, 1998
Allen E. Dillard Treasurer (Principal Financial
and Accounting Officer)
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4 Nichols TXEN Corporation 1996
Incentive Stock Option Plan
5 Opinion and Consent of Lanier Ford
Shaver & Payne, P.C.
23.1 Consent of Ernst & Young, LLP,
Independent Auditors
23.2 Consent of Lanier Ford Shaver &
Payne, P.C. (included in Exhibit 5)