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 issuer as specified in its charter)
Delaware 63-0713665
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
4040 Memorial Parkway, South, Huntsville, Alabama 35802-1326
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(Address of principal executive offices, including Zip Code)
Incentive Stock Option Plan of 1988 of Welkin Associates, Ltd.
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(Full Title of the Plan)
Michael J. Mruz
Nichols Research Corporation
4040 Memorial Parkway, South
Huntsville, Alabama 35802-1326
(256)883-1140
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(Name, Address and Telephone Number, including
area code, of Agent for Service)
With a Copy to:
John R. Wynn, Esq.
Lanier Ford Shaver & Payne, P.C.
P.O. Box 2087
Huntsville, Alabama 35804
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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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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share (1) Price Fee
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Common Stock 28,335 $23.375 $662,331 $196
$.01 par shares
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 $23.375 per share, the average of the high and low price of a share
of common stock on August 3, 1998, as reported on the Nasdaq National
Market.
(2) Pursuant to an Agreement and Plan of Merger dated as of June 26, 1998,
among Registrant, Welkin Associates, Ltd. ("Welkin"), and WAL Acquisition
Company, Inc., Registrant assumed, effective as of July 28, 1998, all of the
outstanding options to purchase common stock of Welkin under the Incentive
Stock Option Plan of 1988 of Welkin Associates, Ltd., 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 Section 10(a) Prospectus
Item 1. PLAN INFORMATION.
This Registration Statement relates to the registration of 28,335 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 Welkin Associates, Ltd. ("Welkin") under the Incentive Stock
Option Plan of 1988 of Welkin Associates, Ltd. (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
participants in the Plan 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") with the Commission 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
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
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; and
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
securites 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
(4) 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 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 Incentive Stock Option Plan of 1988 of Welkin
Associates, Ltd.
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)
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 informa-
tion 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 maxi-
mum 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
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 perio-
dic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by refer-
ence 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
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 this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
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
Securities Act of 1933 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
5th day of August, 1998.
NICHOLS RESEARCH CORPORATION
Michael J. Mruz
By:__________________________________
Michael J. Mruz
Chief Executive Officer
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
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Chris H. Horgen
_________________________ Chairman of the Board August 6, 1998
Chris H. Horgen (Principal Executive Officer)
Michael J. Mruz
_________________________ Chief Executive Officer, August 5, 1998
Michael J. Mruz President, Chief Operating
Officer and Director
Roy J. Nichols
_________________________ Senior Vice President and Vice- August 6, 1998
Roy J. Nichols Chairman of the Board
Patsy L. Hattox
_________________________ Chief Administrative Officer, August 6, 1998
Patsy L. Hattox Corporate Vice President,
Secretary and Director
Thomas L. Patterson
_________________________ President of NicholsTXEN August 6, 1998
Thomas L. Patterson Corporation and Director
Roger P. Heinish
_________________________ Director August 6, 1998
Roger P. Heinish
John R. Wynn
_________________________ Director August 10, 1998
John R. Wynn
_________________________ Director
William E. Odom
James R. Thompson, Jr.
_________________________ Director August 6, 1998
James R. Thompson, Jr.
_________________________ Director
Phil E. DePoy
_________________________ Director
Daniel W. McGlaughlin
_________________________ Director
David Friend
Allen E. Dillard
_________________________ Chief Financial Officer and August 6, 1998
Allen E. Dillard Treasurer (Principal Financial
and Accounting Officer)
EXHIBIT INDEX
Exhibit No. Description
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4 Incentive Stock Option Plan of 1988 of
Welkin Associates, Ltd.
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)