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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 29, 1998
REGISTRATION NO.333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DANIEL INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1547355
(State or other jurisdiction (I.R.S Employer
incorporation or organization) Identification No.)
9753 PINE LAKE DRIVE
HOUSTON, TEXAS 77055
(Address of Principal Executive Offices)
DANIEL INDUSTRIES, INC.
1997 STOCK OPTION PLAN
DANIEL INDUSTRIES, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
JAMES M. TIDWELL
EXECUTIVE 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)
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING PRICE FEE
UNIT (1) (1)
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Common Stock $1.25 par value 850,000 shares (2) $20.25 $17,212,500 $5,078
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(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 May 28, 1998.
(2) Includes (i) an indeterminable number of shares of Common Stock issuable as
a result of the anti-dilution provisions of the Employee Stock Option Plan
and the Non-Employee Director Stock Option Plan and (ii) the Common Stock
purchase rights associated with the shares of Common Stock being registered
(the "Rights").
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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
December 31, 1997;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(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
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 Katie-Pat Bowman, General Counsel to
the Company. Ms. Bowman owns 2,000 shares of Common Stock, subject to forfeiture
in the event she does not continue in the Company's employ in accordance with
the vesting restriction of her award under the Company's Stock Award Plan, and
holds options to purchase 25,000 shares of Common Stock, none which are
currently exercisable.
ITEM 6. Indemnification of Directors and Officer
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
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Company's stockholders would be equitable remedies, such as an action to 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
deductible of $175,000 per loss for securities activities ($75,000 deductible
per loss for all other activities not specifically excluded) 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 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).
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4.4 By-laws of the Company, as amended through June 1, 1997 (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997, and 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 Daniel Industries, Inc. 1997 Stock Option Plan (including standard form
of Incentive Stock Option Agreement used in connection therewith).
4.8 Daniel Industries, Inc. 1997 Non-Employee Director Stock Option Plan
(including standard form of Stock Option Agreement used in connection
therewith).
5.1 Opinion of Katie-Pat Bowman, regarding legality of securities.
23.1 Consent of Katie-Pat Bowman (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Powers of Attorney (contained on page II-5 and II-6 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.
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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 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.
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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 15th day of May, 1998.
DANIEL INDUSTRIES, INC.
By /s/ Alex Newton
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Alex Newton
President and Chief
Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints James M. Tidwell 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
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/s/ Ronald C. Lassiter Chief Executive Officer and Chairman of May 26, 1998
- --------------------------------------- the Board (Principal Executive Officer)
Ronald C. Lassiter
/s/ James M. Tidwell Executive Vice President and Chief May 26, 1998
- --------------------------------------- Financial Officer (Principal Financial
James M. Tidwell Officer)
/s/ Wilfred M. Krenek Controller (Principal Accounting Officer) May 26, 1998
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Wilfred M. Krenek
/s/ Nathan M. Avery Director May 14, 1998
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Nathan M. Avery
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/s/ Michael M. Carroll Director May 26, 1998
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Michael M. Carroll
Director May __, 1998
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Ralph F. Cox
/s/ Gibson Gayle, Jr. Director May 26, 1998
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Gibson Gayle, Jr.
Chairman Emeritus and a Director May __, 1998
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W.A. Griffin
/s/ Thomas J. Keefe Director May 26, 1998
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Thomas J. Keefe
/s/ Leo E. Linbeck, Jr. Director May 26, 1998
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Leo E. Linbeck, Jr.
/s/ Brian E. O'Neill Director May 26, 1998
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Brian E. O'Neill
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 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 June 1, 1997 (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997, and 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 Daniel Industries, Inc. 1997 Stock Option Plan (including standard form
of Incentive Stock Option Agreement used in connection therewith).
4.8 Daniel Industries, Inc. 1997 Non-Employee Director Stock Option Plan
(including standard form of Stock Option Agreement used in connection
therewith).
5.1 Opinion of Katie-Pat Bowman, regarding legality of securities.
23.1 Consent of Katie-Pat Bowman (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).