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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1996
REGISTRATION NO. 333-08787
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NICHOLS RESEARCH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 63-0713665
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
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4040 SOUTH MEMORIAL PARKWAY
HUNTSVILLE, ALABAMA 35802
(205) 883-1140
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
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CHRIS H. HORGEN
4040 SOUTH MEMORIAL PARKWAY
HUNTSVILLE, ALABAMA 35802
(205) 883-1140
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JOHN R. WYNN JOHN D. CAPERS, JR.
LANIER FORD SHAVER & PAYNE, P.C. KING & SPALDING
P.O. BOX 2087 191 PEACHTREE STREET
HUNTSVILLE, ALABAMA 35804 ATLANTA, GEORGIA 30303-1763
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE
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Common Stock, par value $.01 per share...... 1,150,000 $29.00 $33,350,000 $11,500(3)
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(1) Includes 150,000 shares which the Underwriters have an option to purchase
solely to cover over-allotments, if any.
(2) Based solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1993.
(3) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are:
SEC Filing Fee............................................................ $ 11,500
NASD Filing Fee........................................................... 3,835
Nasdaq Listing Fee........................................................ 17,500
Accounting Fees........................................................... 50,000
Blue Sky Fees and Expenses................................................ 15,000
Legal Fees and Expenses................................................... 70,000
Transfer Agent's Fees and Expenses........................................ 1,500
Printing and Engraving Expenses........................................... 100,000
Miscellaneous............................................................. 30,665
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Total........................................................... $300,000
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ITEM 15. 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
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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 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 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 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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1.1 Form of Underwriting Agreement
2.1 Stock Purchase Option Agreement dated December 16, 1994, among Registrant, TXEN,
Inc., and the shareholders of TXEN, Inc. (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended August 31, 1995)
2.2 Stock Purchase Agreement dated May 31, 1996, between Registrant and the
shareholders of Advanced Marine Enterprises, Inc. (incorporated by reference to the
Company's Current Report on Form 8-K dated May 31, 1996)
3.1* Registrant's Certificate of Incorporation, as amended by Articles of Amendment
5.1 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 5.1)
24.1* Power of Attorney (included on page II-4)
99.1* Amendment Number One to Stock Purchase Option Agreement among Registrant, TXEN,
Inc. and the shareholders of TXEN, Inc. dated July 16, 1996
99.2* Amendment Number One to Convertible Stock Purchase Agreement between Registrant and
TXEN, Inc. dated July 16, 1996
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* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes 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 to be 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
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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.
The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be a part of this registration
statement as of the time it was declared effective.
(2) for the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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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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 the
requirements for filing on Form S-3 and has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Huntsville, State of Alabama, on August 13, 1996.
NICHOLS RESEARCH CORPORATION
By: CHRIS H. HORGEN
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Chris H. Horgen
Chief Executive Officer and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this amendment
has been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURES TITLE DATE
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CHRIS H. HORGEN Chief Executive Officer and August 13, 1996
- ------------------------------------------ Chairman of the Board
Chris H. Horgen (Principal Executive
Officer)
* President, Chief Operating August 13, 1996
- ------------------------------------------ Officer and Director
Michael J. Mruz
* Corporate Vice President, August 13, 1996
- ------------------------------------------ Chief Administrative
Patsy L. Hattox Officer, Secretary and
Director
* Senior Vice President and Vice August 13, 1996
- ------------------------------------------ Chairman of the Board
Roy J. Nichols
* Director August 13, 1996
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Roger P. Heinisch
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SIGNATURES TITLE DATE
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* Director August 13, 1996
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John R. Wynn
* Director August 13, 1996
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William E. Odom
* Director August 13, 1996
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James R. Thompson, Jr.
* Director August 13, 1996
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Phil E. DePoy
* Director August 13, 1996
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Robert W. Hager
* Vice President, Chief August 13, 1996
- ------------------------------------------ Financial Officer and
Allen E. Dillard Corporate Treasurer
(Principal Financial and
Accounting Officer)
*By: CHRIS H. HORGEN
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Chris H. Horgen
Attorney-in-Fact
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